Paul Denniss v Fluor Australia Pty Ltd & Ors

Paul Denniss v Fluor Australia Pty Ltd & Ors - [2016] NSWDC 54 - NSWDC 2015 case summary — Zoe

[2]

THE CONTRACTUAL DEFENCE

The defendant contracted with Bluescope Steel for the maintenance of the railway tracks and structures, mainly bridges at the Port Kembla Steelworks. The work on W bridge involved the repair of structural defects for which scaffolding was needed for the length of the underside of the bridge.
The maintenance work was carried out mostly through subcontractors, including Tolco. The defendant contracted with Tolco under a "Minor Works Contract" (Exhibit B). The work to be undertaken on W bridge was described in clause 1.2.2, although the scope of this work was considerably expanded before the contract was completed. Clause 3.2 provided: Fluor will: Provide (or arrange for others to provide) road traffic management plans, road traffic controllers, rail safety watchers and rail track possessions where these items are to be provided by Fluor as indicated in clause 1.2.
Clause 1.2.21 provided for Fluor to provide "rail safety watcher(s)" and, for two specified items of work only, rail track closure.
Mr Jacobson, the defendant's maintenance supervisor, acknowledged that there was a risk of injury from the escape of both molten metal and hot metal slab. He accepted that it was necessary to deal with the risk and that, under its contractual arrangements with Tolco, the defendant accepted responsibility for addressing it.
The defendant claimed that it had, under the contract, delegated to a competent subcontractor its obligations for the management of the risks that Mr Jacobson acknowledged.
I did not agree. At most the defendant contracted to Tolco the responsibility for instructing its employees and those of its subcontractors on the procedures for evacuation of the bridge in accordance with the system devised by the defendant. The plaintiff did not claim that he was not adequately informed in this respect and it was clear from the evidence of all witnesses that these procedures were well known by those who worked on the bridge.
This element of the defence therefore failed.

[4]

How did the injury occur?

The plaintiff's employer, K J Scaffolding Pty Limited (KJS), was engaged as a subcontractor by Tolco to provide scaffolding beneath W bridge to allow repair work to be undertaken. The plaintiff described the structure as a "drop scaffold" that extended for the full length of the underside of W bridge.
The plaintiff first worked on the site in February 2009 when the scaffold was erected. He returned to the site in September 2009 after repair works were completed for the purpose of dismantling the scaffold.
The scaffold was erected longitudinally from one side of Allens Creek to the other over a period of one to two weeks. Before starting work on the site, an employee of the defendant undertook an induction attended by the plaintiff, his supervisors, including Mr Carbury, and other members of the scaffolding crew. On the matter of train movements, the plaintiff said: They said that there would be hot molten metal and hot slab wagons crossing over the bridge and when they were coming - they put a safety watcher there with an air horn and when we heard the air horn, we were to evacuate the bridge and move to a grassed area besides that. (Transcript 21.26)
The grassed area was on the south western side of the bridge. The plaintiff saw only one safety watcher on the bridge. He described him as short, elderly and wearing small round glasses. The defendant accepted that this description fitted that of its employee, Mr Cyril Green.
Before starting work the plaintiff inspected the bridge and observed splashes of molten metal along the whole of its length. He noted that there was no structure around the bridge to protect him from falling materials. The plaintiff recognised the danger of the situation: Because molten metal doesn't stop for anyone. (Transcript 22.50)
He was concerned that escaping molten metal could have fatal consequences and said that at times he panicked when he heard the warning signal because he was in fear that he would be splashed.
The plaintiff claimed that the time allowed for evacuation of the bridge was variable and insufficient. He claimed that there were occasions when he was not given sufficient time to evacuate and he remained under the bridge as trains travelled over it. He claimed that caused him to become anxious and to panic when the warning of an approaching train was given so that he moved with undue haste when evacuating the bridge.
When the plaintiff and his colleagues returned to the site in September 2009 to dismantle the scaffold no site induction was provided although there were daily toolbox meetings before work started. The plaintiff said the same safety watcher, Mr Green, was on the site. The air horn sounded from time to time and he continued to have insufficient time to evacuate.
The plaintiff described the dismantling process as one in which he and his colleagues formed a line along which components were passed as he, the team member at the head of the line, detached them from the scaffold.
By 9 September 2009, the third day after returning to the site, the scaffold was dismantled to a point at about one half of the length of the bridge. The deck of the scaffold had been removed. The plaintiff said he heard the sound of the air horn as he was passing a component of the scaffold, known as a "ledger", to a team member, Mr Henrique Flores, who stood two metres above him. At that time he was standing on a section of the scaffold between a "standard" or pole and a pylon of the bridge. He said he felt "panicky, rushed" (Transcript 42.36) as he quickly handed up the ledger that weighed between four and five kilograms and moved to evacuate.
The plaintiff claimed that in his haste his right foot slipped precisely at the moment when he handed the ledger to his colleague and he spun around the pole. His left leg and foot were trapped between the standard and the pylon and he felt excruciating pain.
He made his way off the bridge slowly and with difficulty and well after the train had passed. He telephoned Mr Carbury who arranged for KJS' safety officer to assist him. The safety officer escorted him to Wollongong Hospital and subsequently completed the Employers Injury Claim report that confirmed that the plaintiff twisted his left knee when climbing on a scaffold at 10.50 am on 9 September 2009.

[5]

Did the injury occur as claimed by the plaintiff?

The plaintiff agreed that he repeatedly handed up components during the course of his work on 9 September 2009 without slipping even at times when he was required to evacuate. Asked if, on the occasion of his injury, he slipped as an ordinary incident of his scaffolding work that had no connection with the need to evacuate, he said: A. You're not understanding scaffolding. Q. Please explain. A. There's lots of different positions and precarious positions you get into. You know, all them other times when the horn went, I could've been there removing the deck boards, which is an easy sort of a job. When you do a drop scaffold, you go down one pole. And then you proceed to put components, what hold it all together. So you're standing on a, it's basically a cup, like the top of that jug. You've got your instep on both sides like that, and that's all you've got to stand on at that time. It was just unfortunate that at that time when that horn went, I was in that position, but I'd been in that position many times before. (Transcript 49.24)
His point was that, on this occasion, the air horn sounded when he was in a precarious position. The plaintiff said the first movement of his right foot when he was in the process of evacuation was when it slipped. He denied that he lost his balance or that, on this occasion, he experienced a purely accidental slip unaffected by any changed circumstance. He maintained that he slipped because his panic at the sound of the air horn caused him to misplace his right foot.
The plaintiff was taken through a number of the reports of medical experts that the defendant contended provided different histories of the circumstances in which he injured his left knee. He did not remember telling the Emergency Department at Wollongong Hospital that he was "climbing from one level of scaffolding to the next - as he pushed up with left leg felt he twisted knee and felt a pop or crack to knee" (Exhibit K, p1).
The plaintiff accepted that Dr Wilding was close to correct, although he made no reference to the slipping of the right foot, when he reported on 15 June 2010: On 9 September 2009, Mr Denniss was at work when he caught his left foot between a bridge pylon and scaffolding and twisted his left knee which became painful and swollen following this incident. (Transcript 67.17)
Dr Silva prepared a report on 28 March 2012. The history he recorded was consistent with the plaintiff's claim that he was proceeding in haste except that he wrote that the plaintiff "tripped" and caught his leg between a pylon and the scaffolding (Exhibit 1, p2).
KJS referred the plaintiff to Dr O'Halloran who, on 9 September 2013, reported: …he had twisted his left knee while he had been checking some scaffolding. While lifting his left knee to move it, it got caught, he had twisted it awkwardly and significantly and his leg had gone from beneath him. (Exhibit K, p18).
Dr Deshpande on 1 October 2013 reported a history in which the plaintiff, while hurrying, caught his leg between pylons and the scaffolding while "jumping" (Exhibit K, p42).
Dr Barold in a report dated 7 February 2014 had an almost perfect history of injury, except that he recorded that, after the plaintiff's right foot slipped, he "stumbled" (Exhibit J, p23).
In its submissions the defendant referred to medical reports that were not raised with the plaintiff. Of those dealt with in submissions, only the report of Dr Bodel of 4 December 2013 contained any significant discrepancy with the plaintiff's account of the way in which he suffered injury. Dr Bodel reported "… he went to jump out of the way …" (Exhibit J, p8).
The plaintiff attributed the several different histories to the fact that "people word things differently sometimes". (Transcript 66.11)
Those of us who listened to the plaintiff's evidence had difficulty understanding precisely how he was injured because we lacked familiarity with the intricacies of scaffolding work. The plaintiff was questioned at length both when giving his evidence in chief and through cross examination to ensure that all of the details of the way in which he claimed he suffered injury were made known.
I thought it highly unlikely that the medical experts, whose concern was with how the injury occurred from an anatomical point of view, would expend the same amount of time and energy gathering the facts about the factual circumstances that prevailed at the time of injury.
Further, I noted that in the majority of the reports the medical experts recorded, consistently with the plaintiff's evidence, that the plaintiff's left leg was caught and twisted between a bridge pylon and a component of the scaffolding.
Taking these factors into account, I was not persuaded that, because of these discrepancies, I should reject the plaintiff's account of the way in which he injured his left leg.

[6]

What was the system for evacuation?

The defendant claimed that its system for evacuation of W bridge was adequate to deal with the risk that it recognised arose out of the presence of construction workers in the vicinity of a railway track. The system involved the provision of a warning to those working on W bridge that allowed them a period of time that the defendant considered was sufficient to allow them to evacuate the bridge.
The estimates concerning the length of the bridge varied between the plaintiff's estimate of 50 metres and that of Mr Cyril Green, one of the defendant's safety watchers, who provided an estimate of 200 metres. The defendant's maintenance supervisor and the most senior employee to give evidence, Mr Jacobson, said it was 75 metres long. I considered that his estimate was the most likely to be accurate and I accepted it.
Mr Jacobson said a number of employees of the defendant worked on the bridge throughout 2009, including a number of safety watchers, among them Mr Green, who reported directly to him. He described their training program as follows: I have some knowledge of it because I am also a safety watcher, we are required to, it's a process which is a classroom process, which involves familiarising people with train movements across the plants, different ways of signalling people on the job, different means of communicating on different sites, and there's an accreditation and assessment at the end of that training program to make sure people are up to the job. (Transcript 137.27).
Mr Jacobson's account of the system was that two safety watchers were allocated to W bridge, one of whom was positioned at the northern end of the bridge and the other at the south. Each safety watcher was provided with an air horn and radio. The air horn was sounded as soon as the safety watcher became aware of the oncoming train, in this case, at the commencement of a period of 1.5 minutes. At the expiry of that time, the train would be "well and truly on the bridge" (Transcript 141.12).
The safety watchers were required to sound the air horn when a train reached a certain point on the track. This was the point at which it had previously been determined by test runs that sufficient time would elapse before the train reached the bridge. The test runs were undertaken for trains travelling in both directions before work commenced. For this reason the safety watcher was not provided with a stop watch to time the passage of the trains.
The safety watcher relied mainly on line of sight and he also learned through his two-way radio when a train was approaching. Mr Jacobson said: The safety watcher relies mainly on a line of sight, he does have other advantages of using two-way radio which can give him additional advanced warning that the train is approaching but generally line of sight and it's part of our responsibility in risk assessment to make sure that our line of sight is adequate. In this case, the trains approached from north and south of the bridge with a fairly lengthy delay before they requested access to cross the bridge. (Transcript 138.32)
He added, by way of clarification: The trains operate through a central train controller. They do not contact the safety watcher, if that clarifies. The safety watcher sees the train approaching, he may have already heard by radio that the train was in the vicinity. The safety watcher would definitely hear the train requesting access to that track and, of course, the bridge, and he would act accordingly. (Transcript 138.41)

[8]

Southbound trains

It was clear that concern in respect of the evacuation system focussed mainly upon the molten metal trains that travelled in the northbound direction. The evidence concerning the system for evacuation when trains loaded with hot metal slab travelled in the opposite direction was confused and contradictory.
There was no similar signalling system for southbound trains and no specific system to delay their progress onto W bridge.
Mr Jacobson said that, if those trains carried cold steel slab, it was not necessary in some circumstances to evacuate workers from the bridge. He did not explain how the safety watcher or those working under the bridge would know what load a train carried. For trains carrying hot steel slab, the system relied solely on the safety watchers seeing the trains. Mr Jacobson was satisfied that the safety watchers had good line of sight of around 150 metres which easily provided 1.5 minutes of warning time. Mr Green thought he had line of sight of about 400 metres but, in light of his overestimation of the length of the bridge, I preferred Mr Jacobson's account of the distance involved.
It was at this point that Mr Jacobson's evidence became confused. It was pointed out that, if a train travelled at the speed he suggested of 25 km/h, it would travel 150 metres in about 21.5 seconds. He explained that the train was first required to stop at an intersection north of the bridge and to seek permission to proceed. This delayed the train's progress but Mr Jacobson was unable to state the extent of the delay. Asked to explain why this delay was so substantial that it provided more than 1.5 minutes warning, Mr Jacobson added a second intersection to the equation, so that the train was required to stop and seek permission to proceed on two occasions within this 150 metre section of track. He claimed the scale on aerial photographs that were in evidence was inadequate so that he was unable to mark where these intersections were situated in relation to the bridge.
Mr Jacobson denied that he was undertaking an exercise in reconstruction. I did not accept this denial.
Mr Sulcs attempted to explain how the system worked for southbound trains. The transcript recorded the following: Q. Was there a difference between trains approaching from the north as opposed to the other way in relation to safety watching work that you performed? A. Yes, there was because on one side you had coming from the slab yard, what we call the slab yard, there was no gates on that point of that, on that side but the other side, you actually had a road way, so that's where it was most important if it's the road way because the trains would go into the slab yard and then turn around and come back out empty. So they would take slabs across the track. There was also another track that veers off from that and sometimes they would go around that area as well which was what they called 19 area. HER HONOUR: I think I got completely lost. RONZANI: Yes. HER HONOUR: I'm just lost. We need to have this diagrammatically, I think. (Transcript 192.32)
No diagram was ever provided. However, this evidence appeared to confirm that there was no boom gate or signalling system on the southbound approach.
Mr Green did not rely on line of sight. He said, in respect of southbound trains, he was able to hear through the radio when the train controller informed the train driver that it was in order to proceed to W bridge. As soon as he knew the train was coming, he sounded the air horn. He did not say where, within the estimate of 150 metres, the authority to proceed was given.
Mr Green was unable to say how much time this allowed the bridge workers to evacuate. There was no suggestion by Mr Sulcs or Mr Green that, as claimed by Mr Jacobson, they sounded a warning when a train reached a point on the track from which it required 1.5 minutes to reach W bridge.

[9]

Safety watchers

The role of the safety watcher was unclear.
Although Mr Jacobson said that a train could not proceed unless the safety watcher did his job, the safety watcher had no means of stopping a train if workers remained on the bridge. There was no physical barrier that prevented a train from proceeding. Nor were the safety watchers able to make direct contact with a train driver or train controller.
Although Mr Sulcs and Mr Green said they were trained on the basis that they were responsible for the safety of persons working on the bridge, they insisted that their responsibility ended when the warning signal was given. This contradicted Mr Jacobson's evidence on the question of whether the safety watcher's role required that he ensure that the bridge was clear. He said: His role virtually finishes once he's satisfied that the bridge has been cleared. It's his job to warn of approaching trains, and that's pretty much where his job finishes. (Transcript 141.16)
At another point in his evidence Mr Jacobson said the system required that the safety watcher be satisfied that all workers were off the bridge and that it was not possible that a safety watcher could not see a scaffolder working beneath the bridge.
The system relied entirely upon the diligence of a safety watcher to see or hear a train and issue a warning, initially using a whistle and subsequently using an air horn for a few seconds. The noise of the air horn was considered to be adequate.
It was not the safety watcher's role to conduct a head count to ensure that all workers had evacuated before a train proceeded onto the bridge. Nor was any other person provided to perform a head count. Mr Jacobson said the closest that the safety watchers came to monitoring the system was through his regular inquiry of them on the subject of whether there were any issues.
He agreed that if there had been only one safety watcher who became aware that a scaffolder, whom he had been unable to see, remained beneath the bridge while a train carrying molten metal was passing, it would be unlikely that the safety watcher would report it to him.
The identity, number and positioning of safety watchers was also the matter of contested and conflicting evidence.
The plaintiff and Mr Davison, who was also a member of the scaffolding team, referred to only one safety watcher whose description fitted that of Mr Cyril Green. The plaintiff said the safety watcher's position was near site sheds at one end of the bridge. It was not put to either of them that more than one safety watcher was used while they were on site.
Mr Jacobson said that two safety watchers were used and that the role was rotated among a number of the defendant's employees, so that neither Mr Sulcs nor Mr Green worked as a safety watcher for the whole of the period during which the work on W bridge proceeded. Mr Sulcs and Mr Green both said that they never worked alone as a safety watcher.
Mr Jacobson was unable to say when in the course of the work on W bridge two safety watchers were used. He said he found no records and, although it was possible, it was unlikely that there was only one safety watcher on the bridge when the plaintiff was working there.
Mr Sulcs was unable to state whether he worked as a safety watcher on W bridge in September 2009. Mr Green, similarly, did not remember precisely what work he was allocated in September 2009. He said categorically that he did not work as a safety watcher on 9 September 2009. After a series of questions concerning his ability to recall so clearly what he did on this date, Mr Green conceded that he did not remember what he was doing on 9 September 2009. He said he assumed he was not working on that day because he recalled no incident involving the plaintiff. He claimed that the defendant's solicitor told him that two others were working as safety watchers on that day.
Mr Jacobson's evidence that it was unlikely that scaffolders remained under the bridge while a train was passing was based on his understanding that the safety watcher had a good view of them, especially when a second safety watcher was used.
As to their location, Mr Jacobson said they were positioned so that they could see everyone on the bridge and were able to "…signal to each other that the bridge is clear" (Transcript 152.25). Why this was necessary when they were not responsible for ensuring that the bridge was clear was not explained. Mr Green said those working under the bridge could not see the safety watcher and safety watchers were unable to see those working under the bridge. Mr Sulcs said he could see some of them through gaps in the bridge.
Mr Jacobson said a safety watcher was often stationed under the bridge while scaffolding was in progress. The reason for this was again obscure if, as claimed, he was not responsible for ensuring all workers were safely evacuated. From that position the safety watcher was unable to see approaching trains or any other safety watcher and he had no means of stopping an approaching train. Neither Mr Sulcs nor Mr Green suggested that they were ever stationed beneath the bridge.

[10]

Time allowed for evacuation

The major area of contested evidence concerning the evacuation system centred upon the time allowed to evacuate the bridge.
The plaintiff claimed the time allowed to reach the evacuation area at times was as short as 15 to 20 seconds. He said the time required to reach the evacuation area varied between 30 seconds and three to four minutes, depending upon the point on the bridge where he was working. He claimed that on occasions he was still on the bridge when the train travelled over it, a situation that caused him considerable anxiety.
The plaintiff said he complained to his supervisor, Mr Carbury, and that on one occasion the defendant's supervisor, Mr Jacobson, in the presence of the plaintiff and Mr Carbury, told the safety watcher to allow those working on the bridge more time to evacuate. The time to evacuate continued to be insufficient and he continued to find himself on the bridge as a train travelled over it. He said the evacuation process was not always orderly because of the need to proceed with haste.
Mr Davison worked at the Port Kembla Steelworks for two years, during which he learned of the serious dangers posed by molten metal, before joining KJS 20 years ago. He worked with the plaintiff on W bridge as a "groundie", meaning that he passed out or retrieved the component parts of the scaffold.
Mr Davison claimed that he saw scaffolders caught under the bridge as a train travelled over it. He said they looked stressed out and unhappy when this occurred. The plaintiff was the leading hand and was therefore the last member of the scaffolding team to come out from under the bridge.
He claimed that, during the period when the scaffold was being erected, he overheard Mr Carbury speak to the safety watcher and urge him to give the scaffolders more time. He said that he and others also spoke to him. He told the safety watcher: Cyril, give the boys more time, man". (Transcript 99.3)
Mr Davison initially stated that the time allowed for evacuation varied between one and two minutes. He subsequently varied his estimates to between 30 seconds and one minute.
Mr Jacobson said he received no complaints from Mr Carbury or from anyone else concerning the time allowed to evacuate the bridge workers. He said he checked the defendant's records and found no documented record of complaint or report of any incident occurring on the site. He met daily with Tolco, mainly concerning safety issues. These meetings frequently took place before any other workers, including scaffolders, were on the site.
Mr Sulcs remembered that the time for evacuation was extended to 90 seconds but he could not say when the change in timing took place. He was unable to say whether the plaintiff was, on occasions, given as little as 30 seconds in which to evacuate. He agreed that, if he heard a train on the bridge when he was working beneath it, he would be in fear and would want to evacuate as quickly as possible, perhaps taking a shortcut to do so. He said he sometimes urged people he could see working under the bridge to leave.
Mr Green was aware that an extra minute was added to the time allowed to evacuate the bridge. He said this was done soon after work started because it became apparent that there was insufficient time. The extra minute was added for trains travelling to the north only.
He said he received no complaint that the time allowed to evacuate the bridge was insufficient. Had he received such a complaint, he would have informed Mr Jacobson.
Mr Green did not know if a scaffolder ever remained beneath a bridge when a train travelled over it. This was because this aspect of the system fell outside his area of responsibility and all persons who worked on the bridge were instructed that "once the air horn sounds they were to remove themselves from under the bridge." (Transcript 242.14)
He agreed that it was possible and even probable, although he did not remember, that he received a complaint in February 2009 that the time for evacuation was insufficient. He also accepted as probable that the time between the sounding of the air horn and the passing of the train varied. He rejected the proposition that the time allowed could have been as little as 15 to 20 seconds, even for trains travelling from the north. He did not know how long it took to evacuate from the scaffold. It was not his job to time workers' movements. This was done by others.
Mr Jacobson claimed to have a specific recollection of observing and timing scaffolders leaving the bridge on many occasions. He did not state the stage within the erection or dismantling process when this was done. He kept no documentary record of the result. He said he also personally trialled the time taken to evacuate from the scaffold, although he was unable to do this until the scaffold was in place because he was not qualified to be on the scaffold until it was fully erected. His lack of qualification also prevented him from undertaking test runs before the duck board or flooring was installed or while he was attached to the scaffold by a lanyard.
He denied that the time required for evacuation was between three and four minutes, or even two.

[11]

Documentary material

Documents produced in evidence cast doubt on a number of aspects of the evidence of the defendant's witnesses.
Exhibit E was a document dated 6 February 2009 that detailed a risk assessment relating to W bridge. It was apparently a document issued by Bluescope Steel. Of the initials of team members referred to in the documents, Mr Jacobson was able to identify his supervisor, Mr Reid, and Mr Cyril Green. The document identified a number of potential hazards, including the insufficiency of time allowed for evacuation. It also identified a number of steps that could be taken to address those risks and the action to be taken to implement some of those steps.
In relation to the trains carrying molten metal, options included adopting a method within the steelworks that avoided the use of the bridge between weekday working hours, isolating the bridge or adding a timer at the level crossing. Mr Jacobson was given the task of determining the time required for evacuation. Mr Reid was to decide how the timer was to be added.
A further identified hazard related to the inability of the safety watcher to see all workers. The solution to address this hazard was the provision of an additional watcher and the supply to each safety watcher of an air horn and radio. There was no explanation for why it was considered necessary for the safety watcher to see all workers if, in fact, his responsibility ended with the sounding of the warning.
There was no reference to the provision of additional timing in respect of trains carrying hot metal slab. The additional control of adding egress into the scaffold at the northern end of W bridge was unexplained in the evidence.
Mr Jacobson agreed, by reference to purchase orders signed by him and dated 6 February 2009 and 24 February 2009 that it was evident that scaffolding work started on about 6 February 2009. Mr Jacobson agreed that that it was probable that the scaffolders worked on W bridge during February 2009. The plaintiff said he worked on W bridge for about two weeks in February 2009.
Rail Network Notice 209, part of Exhibit E, was dated 26 February 2009. It stated: Please note from the 2nd March 2009, there is an additional delay of 60 seconds for W bridge trains to obtain a green permissive light on Allan's Creek Rd level crossing when coming from the Caster Main and Blast Furnace 5 Main.
The notice proceeded to explain that the additional time was the consequence of a recent risk assessment that identified that there was insufficient time to allow evacuation during scaffolding and bridge maintenance works. It noted that if the additional time proved to be inadequate, full track isolation would be necessary.
Mr Jacobson agreed that a reasonable inference from this document was that the problem of insufficient time for evacuation was identified when scaffolders were working on the bridge. He did not concede that it was reasonable to assume that the risk assessment was undertaken as a consequence of complaints by scaffolders.
He did concede that the implementation of the measures referred to in the risk assessment document dated 6 February 2009 was delayed until 2 March 2009, a period when scaffolding work was in progress.
Other documentation recorded the defendant's established practice of undertaking safety or risk assessments. In the case of the work on W bridge the document used was in the form of a "SAM Assessment". Mr Jacobson agreed that, if the defendant's records included no SAM Assessment for a period, it could be assumed that no assessment had been undertaken.
Exhibit F comprised a bundle of SAM Assessments prepared on various dates in which Mr Jacobson was identified as the supervisor. The assessment dated 24 March 2009 identified the presence of only one safety watcher and noted that this safety watcher was not equipped with an air horn. The whistle that he was using was insufficiently loud to alert those working on the bridge to the imminent arrival of a train. Mr Jacobson agreed that the document indicated that a number of the procedures agreed upon on 6 February 2009 were not implemented by 24 March 2009.
The assessment of 30 April 2009 referred only to one safety watcher, Mr Cyril Green. Mr Jacobson denied that this indicated that only one safety watcher was employed on W bridge on that date. The assessment of 4 June 2009 specifically referred to two safety watchers.
Documents recorded assessments that continued at intermittent intervals up to 11 July 2009. Mr Jacobson disagreed that the absence of documentation of further assessments indicated that the practice was discontinued after that date.
In respect of the alternatives referred to in the risk assessment undertaken on 6 February 2009, Mr Jacobson said the method of evacuation adopted was influenced by operational demands. This was because Bluescope Steel required the defendant to devise a system that allowed it to continue to production. For this reason, other alternatives, such as isolation of the bridge, were not adopted.
He agreed that the evacuation time could have been increased by more than one minute to any time that was determined to be necessary but said the addition of one minute took into account operational demands.
Preventing trains from moving onto the bridge until someone with responsibility and control over the trains was satisfied that all workers were off the bridge, he said, would have delayed trains and interfered with production. He agreed that empowering a safety watcher to hold a train until a count of all heads had been undertaken would have obviated the risk of leaving a scaffolder stranded beneath the bridge.
Detonators were not considered because they presented a risk to train crews.

[13]

The failure to call certain witnesses

The defendant relied on the principles of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in asking that I draw inferences concerning the absence of evidence of two persons whose evidence might have been relevant to the plaintiff's claim.
The first was Mr Henrique Flores. He was the member of the scaffolding crew to whom the plaintiff passed the ledger before he slipped. In this respect, the evidence of the plaintiff was that Mr Flores was standing two metres above him when he passed the four to five kilogram ledger up to him. Aside from the question of what Mr Flores might have seen of the movement of the plaintiff's leg movements from that distance, I took account of the fact that Mr Flores was also likely to have moved quickly away from the scene in order to get off the bridge.
As to the question of whether he would have provided evidence of the plaintiff's injury, I note that Mr Davison confirmed that when the plaintiff left the bridge on 9 September 2009 he complained of pain in his knee. Further, the record of Wollongong Hospital Emergency Department and of the KJS report to its workers compensation insurer confirmed that the plaintiff suffered injury to his left leg between 10 and 10.30 am on 9 September 2009.
I declined to draw an inference that Mr Flores might have provided evidence that did not assist the plaintiff.
The second witness referred to by the defendant was Mr Carbury, the plaintiff's supervisor. It suggested he could confirm that the plaintiff complained to him about the inadequacy of the time allowed for evacuation. Why it was necessary to call Mr Carbury on this point, when two other aspects of the evidence confirmed that concerns were raised, was unclear. There was evidence of complaint both from Mr Davison and in Exhibit E where the proceedings of a meeting attended by, among others, Mr Carbury were recorded. In the circumstances, there was no basis upon which to draw any inference concerning the plaintiff's failure to call Mr Carbury.

[14]

Findings

There was a period between 6 February 2009 and 2 March 2009 when only 30 seconds was allowed for evacuation of scaffolders from W bridge prior to the arrival of trains carrying molten metal. It was during this period that the plaintiff first worked on W bridge.
During that period trains travelled over the bridge more than ten times during a working day and at irregular intervals. The time allowed for evacuation varied.
During that period a scaffolder was required to cease activity, climb from the scaffold and walk up to 75 metres to the evacuation area within the 30 seconds allowed for northbound trains.
There was no satisfactory evidence of the time allowed for evacuation prior to the arrival of southbound trains. Mr Green's evidence of his method of alerting workers to an approaching southbound train directly contradicted that of Mr Jacobson.
Although Mr Jacobson claimed that he had no knowledge of any complaint, Exhibit E established that the insufficiency of time for evacuation of scaffoldings was recognised as a hazard during the period in February 2009 when the plaintiff worked on W bridge.
Exhibit E also established that it was recognised that: 1. Requiring workers to evacuate in haste generated tripping and slipping hazards; 2. Only one safety watcher was initially provided when two safety watchers were required; 3. The whistle provided to the one safety watcher could not be heard and an air horn was required.
The audit summaries contained within Exhibit F indicated that none of the hazards identified in Exhibit E were attended to before the plaintiff completed his work on the erection of the scaffold in February 2009.
The plaintiff's evidence that he at times was unable to evacuate and remained beneath the bridge when trains loaded with molten metal crossed it was therefore plausible and I accepted it.
The plaintiff's evidence that he became anxious and panicked while working under these conditions was plausible and I accepted it.
The reason for the decision to post two safety watchers to W bridge was unclear. The two safety watchers who gave evidence stated categorically that they were not responsible for counting heads or ensuring that all workers were off the bridge before a train crossed. They had no means to stop a train and clearly therefore could not undertake this function.
Mr Jacobson's evidence that a safety watcher was positioned beneath the bridge at times was illogical because it served no purpose. Mr Sulcs and Mr Green disagreed on the issue of whether they were able to see workers beneath the bridge. Mr Sulcs was able to see them at times and to urge them to leave, indicating that, notwithstanding the extra time allowed, some workers continued to struggle to be off the bridge within the time provided.
On his return to W bridge in September 2009 the plaintiff worked under conditions that were very similar to those experienced in February 2009 so that: 1. Although a timer allowed a further one minute delay for trains carrying molten metal to the north, there was no change in the time, whatever that may have been, allowed for trains carrying hot metal slab to the south. 2. An air horn was used to sound the warning rather than a whistle. 3. Times allowed for evacuation remained variable and train journeys remained irregular. 4. According to Mr Sulcs, workers continued to have difficulty completing the evacuation process within whatever time was allowed. 5. Even if two safety watchers were used, they remained unable to control the trains.
In those circumstances, the plaintiff's evidence that the feelings of anxiety and panic that he experienced in February 2009 re-emerged in September 2009 was plausible and I accepted it.
I accepted Mr Adams' observation that the requirement that workers evacuate at a rapid pace deprived them of the opportunity to leave the bridge in an orderly fashion.
I also accepted the plaintiff's evidence that in the light of those conditions, he proceeded with greater haste than was prudent when he heard the warning signal on 9 September 2009 and that this was the cause of his injury.

[15]

Was the injury the result of the defendant's neglect?

Determination of the issue of negligence required the application of the following provisions of the Civil Liability Act 2002 (NSW): 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. 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. 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" ).
The defendant claimed that the pleadings were insufficiently specific. I acknowledge that the evidence did not deal with all of the particulars of negligence pleaded in paragraph 9 of the amended statement of claim. However, those detailed in paragraphs 9(a), (b), (f), (g), (h), (l) and (m) were dealt with and it follows from my findings that I considered that they were proved.
I accepted that there was no evidence of complaint by the plaintiff for the purposes of the pleading in paragraph 9(i). It could not be said that there was, in fact, no record of complaint because the defendant retained surprisingly few documents concerning the work on W bridge. I also accepted that, not having heard from the plaintiff's supervisor, Mr Carbury, I was unable to assume that his evidence would assist in proving that the plaintiff complained to him about the time allowed for evacuation. This did not mean, however, that I was obliged to disregard the evidence of the plaintiff, supported by Mr Davison, that complaints were made, particularly when Exhibit E recorded that as early as 6 February 2009 the defendant was alerted to concerns about the adequacy of time allowed for scaffolders to evacuate the bridge.
The real issue was whether the plaintiff identified a risk that was causative of his injury that was foreseeable, not insignificant and against which a reasonable person in the defendant's position would take precautions.
The defendant's claim that it was not foreseeable that the plaintiff would slip in the course of evacuation was unsustainable in the light of the identification of that very risk in Exhibit E.
I did not accept that it was a matter for the plaintiff to provide evidence of the time that might appropriately have been required for evacuation. I did accept that it was for the plaintiff to establish that, notwithstanding the addition of one minute to the timer for northbound trains, it remained foreseeable that a scaffolder working beneath the bridge would react in haste when warned of an approaching train because of anxiety and fear that he would be unable to evacuate the bridge before a train capable of spilling material that had potential fatal consequences passed over it.
The plaintiff met this obligation. He established that limited and variable times continued to be made available to evacuate and that, if he was unable to leave within the time allowed, the defendant would do nothing to protect or assist him. The safety watcher could not stop the train and he would be fully exposed to the risk of significant injury.
Mr Sulcs recognised that finding oneself beneath W bridge in the face of the known risk and danger was likely to create anxiety and panic in workers who were required to evacuate in a disorderly fashion.
I decided that, notwithstanding the addition of one minute to the timer for trains travelling north, a reasonable person in the defendant's position ought to have foreseen the risk that a worker would, in his haste to evacuate, slip, trip or fall or though some contingency suffer injury when it imposed on bridge workers the obligation to evacuate in such circumstances.
I did not accept that the defendant acted reasonably to confirm that the precautions adopted to guard against the recognised risks were adequate. Exhibit E allocated to Mr Jacobson, the maintenance supervisor, the task of determining the extent to which the time for evacuation was to be increased. His method of determining that time was rudimentary and undocumented. There was no indication that the system was at any stage checked by any person appropriately qualified in the field of safety management.
There was evidence that there were alternative or additional precautions available to the defendant. I accepted that isolation of W bridge during the working week while scaffolding work was in progress would halt production and I noted Mr Jacobson's statement that detonators presented a risk to train drivers. Although the other alternatives proposed by Mr Adams had the potential to delay the movement of trains, it was not suggested that the consequential effect on production was such as to outweigh the requirement for a system of evacuation that ensured that no worker remained in a position of danger from passing trains. Further, there was no evidence that the option of isolating the bridge at times, such as at weekends, when production would not be affected, was evaluated. Nor was there an explanation for why, if this option was unacceptable, other alternatives were not pursued.
I disagreed with the submission that the facts in this case were similar to those where the plaintiff's claim was rejected in the decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 which, as I understood it, was based on the proposition that the plaintiff in this case was engaged in an ordinary everyday task that, as an experienced scaffolder of long standing, he had undertaken many times in the past. The scaffolding work on W bridge was far from ordinary when the requirement to evacuate in haste from precarious positions up to 10 times per day was taken into account.
Having regard to these factors, I find the plaintiff established both issues of risk and causation. I find the defendant in breach of its duty of care to the plaintiff and liable to him in damages.

[18]

THE EMPLOYER'S LIABILITY

Paragraph 9 of the defence raised the issue of the negligence of the plaintiff's employer, KJS. The defendant pleaded against KJS the particulars of negligence claimed against it and, additionally that it: (b) Failed to properly instruct the plaintiff. (c) Failed to properly supervise the plaintiff. (d) Failed to provide a safe system of work.
The defendant's purpose in raising this defence was to seek the apportionment of any damages awarded against it and a subsequent reduction of its liability in accordance with the provisions of s 151Z of the Workers Compensation Act 1987 (NSW).
The defendant did not bring a cross claim against KJS and it called no evidence in support of its claim. I was provided with no authority concerning the principles to be applied in such circumstances. When I inquired how I was to make findings contrary to KJS when it was not a party and had not been heard, my attention was drawn to sections of Mr Adams' report that the defendant claimed found fault with the manner in which KJS managed its employees.
The plaintiff referred me to the authority of Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423, a case in which both the employer and non-employer were parties. Justice McColl, delivering the leading judgment, dealt with the issue of onus of proof arising out of the provisions of s 151Z at paragraphs [83] to [94]. She concluded: 91 The effect of s 151Z(2), if applicable, is that a plaintiff worker cannot recover damages against the non-employer tortfeasor unless (assuming that person is entitled to contribution from the employer) the s 151Z(2)(c) and (d) calculations are undertaken. The plaintiff worker is at risk of not having discharged the onus of proving damages if that calculation cannot be performed. In such circumstances, in my view, the plaintiff worker bears both the legal and evidentiary onus of establishing what, if any, damages would be assessed for the purposes of the hypothetical s 151Z(2)(d) exercise. … 93 The conclusion that the plaintiff worker bears the onus of proving the damages for the purposes of the hypothetical s 151Z(2)(d) exercise is consistent with the legislative intention, apparent from the scheme of the Workers Compensation Act, the WIM Act and the Workers Compensation Commission Rules 2003, that it is incumbent upon a worker, whether seeking only to claim workers compensation or to recover common law damages, to demonstrate that he or she has suffered the degree of permanent impairment pre-requisite to a successful claim.
I noted that this conclusion was based on the assumption that the non-employer tortfeasor was entitled to contribution from the employer. Justice McColl did not deal with the onus of proof as between the plaintiff and the non-employer when the employer was not joined in the proceedings either as a defendant or cross defendant.
Justice Hodgson, agreeing with Justice McColl, offered the following in obiter at paragraphs [4]-[5]: In a case such as the present, where the contribution proceedings against the employer are heard together with the proceedings brought by the worker against the person other than the employer, it is clear in my opinion that, if it is not proved by someone in the proceedings that the injury resulted in a degree of permanent impairment of 15% or more, the contribution claim will fail under par.(d); and if the person making the contribution claim proves that the employer would otherwise have been liable to contribute a certain percentage, the worker's damages under par.(c) will (for consistency) have to be reduced by that percentage. Thus, there will as a practical matter be an onus on the worker to prove that the 15% threshold is passed. If the worker does not prove this, the person making the contribution claim may achieve a reduction in damages recoverable by the worker without having to prove that the 15% threshold is not passed, albeit at the expense of liability for the employer's costs of the contribution proceedings. However, in my opinion the position concerning onus of proof may be different if the proceedings brought by the worker against the person other than the employer are heard on their own, in the absence of or prior to the hearing of contribution proceedings brought by that person against the employer. It seems to me that that person, as defendant in the proceedings brought by the worker, must have the onus of proving the elements set out in par.(c) in order to obtain any reduction of damages: that is, there will be no reduction of damages as discussed in par.[3] above unless the defendant proves that it would, but for Part 5 of the Workers' Compensation Act, be entitled to recover an amount from the employer and that the contribution actually recoverable is nil. In those circumstances, it seems to me that the defendant would have to prove that the injury did not result in a degree of permanent impairment of 15%; although I accept that it may be possible to do this by way of inference from the general evidence in the case, where the worker has not sought and failed to obtain the certificate required to establish this degree of impairment. In that respect, I think the position may be different from that supported by McColl JA; although it is not necessary finally to determine that matter in these proceedings.
The effect of these extracts, taken together, was: 1. Where the employer was a party to the proceedings, the worker bore the onus of proving that the degree of permanent impairment suffered exceeded the 15% threshold; 2. Whether the employer was a party or not, the person making the contribution claim must prove that the employer would have been liable to contribute to the worker's damages. 3. Where the employer is not a party to the action, the defendant in proceedings brought by the worker must prove both that it would be entitled to recover an amount from the employer and, if contended that the threshold for recovery was not met, that the amount recoverable was nil.
In Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA 174 at [71] and [72] Basten JA adopted and endorsed the principles contained in Justice Hodgson's conclusions and in Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [32], Justice McColl said: Because the appellant brought these proceedings against the respondents alone and, to all intents and purposes, in the absence of or prior to the hearing of contribution proceedings brought by the respondents against Dependable, the respondents bore the onus of proving the elements set out in s 151Z(2)(c) in order to obtain any reduction of damages: Forstaff (at [5]) per Hodgson JA; approved in Maricic (at [71]) per Basten JA (Beazley and Ipp JJA agreeing).
In Shoalhaven City Council v Humphries [2013] NSWCA 390 at [8], Justice Leeming, after noting the High Court's description of the employer's duty of care in respect of systems of work as an "independent obligation to satisfy itself of the safety of the system": Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [57], continued: Once again, either the employer took positive steps to do so or it did not, but the onus remained on Council to demonstrate what the employer did and how that failed to discharge its duty. If as here Council adduced no evidence at all as to what the employer did, it could not discharge its onus in this respect.
Again, I received no assistance from the defendant on the issue of the degree of whole person impairment suffered by the plaintiff. Only Dr Silva and Dr Machart offered opinions. Dr Machart assessed it at 0%. For reasons later expressed in this judgment I decided that I could place little weight on Dr Machart's opinion. Dr Silva assessed the impairment as a result of the left knee injury at 20% but reduced his assessment to 2% to take account of the pre-existing advanced osteoarthritic changes in the plaintiff's left knee. He added 1% to take account of the scar on the left ankle.
Although I considered this to be a somewhat harsh and arbitrary assessment, it will be apparent from my reasons dealing with the assessment of non-economic loss that, even taking account of the scant evidence on the issue, the pre-existing level of osteoarthritis in the plaintiff's left knee was such that an inference was available that the plaintiff's injury would not qualify for assessment of a 15% degree of permanent impairment.
I noted the comments of the High Court in Andar referred to above. I also noted authority that established that it was for the defendant to prove that KJS had failed to meet its obligation to satisfy itself of the safety of the defendant's system for evacuation of W bridge.
After detailing at some length the defects in Mr Adams' report, the defendant sought to rely on his conclusions to support its claim that KJS was partially responsible for the plaintiff's injuries. The defendant claimed that the material contained in that report established: 1. KJS was the controller of the plaintiff's work environment and the system or work method involved in the erection or dismantling of the scaffolding so that, in this respect, the defendant had no control; 2. The plaintiff said that he slipped and that this was the cause of his injury; 3. On the basis of Mr Adams' opinion, the risk of slipping was a matter for KJS to attend to.
I appreciate that an employer owes a non-delegable duty of care and that this imposes a significant obligation on an employer to take care for the safety of its employees. However, this is not a strict liability. Further, I do not understand the law to be that negligence of a non-employer automatically becomes negligence of an employer.
In this case, as pointed out by the defendant, the system devised by KJS was incident free during the 10 day period when the plaintiff worked on W bridge in February 2009. The plaintiff himself, a skilled and experienced scaffolder, explained that he was engaged in a process that he was accustomed to performing and that the precarious position in which he worked was not unusual. He wore a lanyard and harness that protected him in the event of a fall.
Although it might be considered that his work was inherently dangerous, there was no evidence that at the time the air horn sounded on 9 September 2009 he was engaged in activity that created any greater hazard than he was accustomed to managing on a day to day basis. In my view, KJS was entitled to expect that the plaintiff, its leading hand with lengthy experience, would be able to exercise care as he moved over the scaffold. His injury was the result of the mis-positioning of his foot because he felt the need to move with haste.
The question remaining was the extent to which KJS did or ought to have taken issue with the system for evacuation devised by the defendant. The defendant claimed that the plaintiff's supervisor, Mr Carbury, was present at daily toolbox meetings attended by Mr Jacobson and that the system adopted by the defendant was devised with Mr Carbury's collaboration. This was contrary to Mr Jacobson's evidence that he frequently met with Tolco before the other contractors were on site.
There was no evidence to support the proposition that Mr Carbury attended daily toolbox meetings at which Mr Jacobson was present. According to Mr Sulcs, aside from the daily toolbox meetings where he allocated the work that the defendant's employees were to do, Mr Jacobson was rarely on site because he was busy running a number of other jobs at the Port Kembla Steelworks site.
I rejected the proposition that there was collaboration between Mr Jacobson and Mr Carbury in developing the system for evacuation.
At the meeting of 6 February 2009 the task of assessing the time required to allow for safe evacuation of workers was delegated to Mr Jacobson. He said he did this by evacuating the bridge himself and by watching the time taken by scaffolders to evacuate from the scaffold. He retained no records of the results of these exercises so that it was not possible to know from what point on the bridge the scaffolders were required to evacuate and therefore what distance they were required to travel to arrive at the evacuation area when this assessment was undertaken. Mr Jacobson did not suggest that he consulted with Mr Carbury in undertaking these exercises or that he collaborated with him in deciding that a further one minute was adequate.
Mr Jacobson claimed that he received no complaints from KJS about the system for evacuation. He appeared to be unaware, until it was brought to his attention, of the meeting recorded in Exhibit E that took place on 6 February 2009. This meeting was clearly convened because of concerns about the adequacy of the system during the period when the scaffolding was erected. If Mr Jacobson was unaware of those concerns, it would not be surprising if he was unaware of any subsequent complaints. He agreed that a safety watcher was unlikely to report to him instances when workers were given insufficient time to evacuate.
It was possible that Mr Reid had knowledge of complaints but I did not hear evidence from him. He might also have been in a position to explain the purpose behind some of the steps adopted following the February 2009 meeting and of Mr Carbury's reaction to them.
The plaintiff said that he complained of the inadequacy of the time allowed both to Mr Carbury and to others. He continued to complain when he returned to the site in September 2009. Mr Davison said that he heard Mr Carbury ask a safety watcher to allow more time and that Mr Davison himself urged him to do so.
It was possible that the defendant had some record of complaint but Mr Jacobson was unable to locate any of the defendant's documents relating to the work on W bridge. The evidence of the February 2009 meeting suggested that some steps were taken by KJS to secure the safety of its employees. The onus was on the defendant to establish that nothing further was done.
In the absence of evidence other than that of Mr Jacobson, who clearly was not fully informed, it was not possible to find on the balance of probabilities that simply because the system for evacuation continued to be deficient there must have been some breach by KJS of its duty of care to the plaintiff.
This element of the defence failed.

[20]

Non-economic loss

The plaintiff said he had left knee and ankle pain on arrival at Wollongong Hospital. The injuries were iced, his leg braced and he was provided with crutches. His employer sent him to consult with Dr O'Halloran, general practitioner, who, when his condition worsened, referred him to Dr Stackpool, orthopaedic surgeon.
The ganglion in his left ankle caused him to suffer from pain and difficulty in walking. Dr Bhimani performed surgery to extract the ganglion from the left ankle with some improvement although there was ongoing discomfort with clicking and crunching noises in the joint. There was no further treatment of the ankle. The plaintiff claimed that the condition of the ankle continued to restrict his capacity to walk, manage stairs and uneven ground.
Dr Stackpool performed an arthroscopy on the left knee in February 2010 but the condition of the knee deteriorated with increasing pain and restriction in movement.
On returning to work the pain in the plaintiff's left knee increased to the point described by the plaintiff as "excruciating", with stiffness and difficulty in performing his duties. He was referred to Dr Deshpande who, in February 2012, recommended a total knee replacement. Surgery was deferred because of the plaintiff's relatively young age for such surgery. He was advised to tolerate his condition for as long as possible. Surgery was ultimately performed in May 2013, involving a three week stay in hospital and subsequent rehabilitation.
The plaintiff developed symptoms in his right knee. After comparison x-rays were taken he was advised that the condition of his right knee was as bad as that of his left knee although until April 2013 there was no recorded complaint of right knee symptoms. Surgery for a right knee replacement was performed in May 2014. No claim was made in these proceedings that involved the right knee.
The plaintiff complained of the following current symptoms affecting his left knee: 1. Restricted range of movement so that if he bent the left knee too far he suffered from severe pain. He had difficulty walking on stairs. He cycled to maintain muscle strength notwithstanding that the left knee and left ankle twinged and clicked as he did so. 2. He was unable to run, squat, kneel or walk for long distances. He could not climb a ladder. 3. He was unable to drive for longer than 30 minutes before his left leg cramped. 4. He found fishing difficult. He could not fish safely from rocks and he was unbalanced in a boat.
The plaintiff said that levels of pain fluctuated between the right and left knees. At the time of the hearing the condition of his right knee was worse than the left. He did not intend to seek further treatment for the left knee.
Mrs Denniss confirmed the plaintiff's complaints. She said he made no complaint of left knee pain prior to September 2009 and his activities were unrestricted. She was aware of the subsequent issues with the right knee.
She said the plaintiff had taken Endone and other strong pain killing medication. He tried to avoid them because of concern for the long term consequences. He continued to take Panadeine Forte when necessary.
The plaintiff returned to work on restricted duties for a period until his employment was terminated in September 2012. This event caused him anxiety concerning the future for himself and his wife. He consulted Dr Wenzel, psychologist, on one occasion.
The plaintiff said he continued to suffer psychologically, becoming emotional and crying, something he had not experienced prior to this incident. He said he was scared and sad and he remained anxious about his future. He avoided his former colleagues and experienced flashbacks of the injury.
He also gave evidence of the consequence to his relationship with his wife. His irritability resulted in two periods of separation and their sexual relations were affected.
Mrs Denniss said she and the plaintiff enjoyed an active social life prior to the incident, enjoying dinners, concerts and barbeques with friends. She listed the plaintiff's pre-incident activities as fishing, cricket and tennis. She described a change in his confident, outgoing, happy personality after the left knee injury. She thought he was depressed. Social life was decreased. He appeared to be sad, talking little, crying and hanging his head. His sleep was affected by pain and he rose regularly during the night.
Mrs Denniss confirmed the plaintiff's evidence of separations. She said the effect on their intimate relationship was greater than that suggested by the plaintiff with sexual relations difficult and occurring rarely.
She was not aware that the plaintiff consulted a psychologist. She herself had received counselling as a consequence of the couple's difficulties following his injury.
Mr Davison noticed that the plaintiff appeared to be unhappy when he returned to work as a supervisor.
Notwithstanding these symptoms of psychological disturbance, the plaintiff did not continue with treatment and had never taken anti-depressant medication. He said this was because he did not think he was "mad" (Transcript 34.7), although he said he would consider further treatment if it was recommended by his doctor. He was hopeful that, when his physical problems were resolved, he would recover psychologically.

[21]

Medical evidence

Radiological examination of the plaintiff's left knee after the incident demonstrated a significant degree of degenerative arthritis. All subsequent medical opinion acknowledged that at the time of the incident the plaintiff suffered from advanced severe osteoarthritis in his left knee.
On 29 September 2009 Dr Stackpool diagnosed an acute exacerbation of this pre-existing arthritic condition. He initially treated the plaintiff conservatively with analgesia and physiotherapy and, subsequently, with steroid injection. This treatment failed to improve the plaintiff's condition and an arthroscopy was performed on 12 February 2010. This procedure also failed to improve the plaintiff's condition, in Dr Stackpool's opinion, because of the pre-existing osteoarthritis.
Dr Desphande was first consulted in February 2012. His diagnosis was of post traumatic degenerative arthritis of the left knee. Dr Desphande provided a number of reports detailing the worsening condition of the left knee and of complaints concerning pain in the right knee in April 2013. He performed left knee replacement surgery on 29 May 2013, following which Dr Desphande reported a good prognosis and the prospect that similar surgery would be required in due course for the right knee.
Mr Wenzel reported in August 2010 that he consulted with the plaintiff after referral by Dr O'Halloran because of adjustment problems as a result of the injury and loss of his employment. He tested the plaintiff for depression and anxiety and diagnosed a chronic pain disorder. He recommended treatment directed at pain management and adjustment counselling. As noted, the plaintiff did not proceed with this treatment.
The defendant relied on the medico-legal reports of Dr Machart, Dr Silva and Dr Lee.
Dr Silva reported in March 2012, before the knee replacement surgery. He accepted that the incident was responsible for the development of the ganglion in the left ankle and for what he described as a "degenerate tear of the lateral meniscus". In his opinion the plaintiff would have required left knee replacement regardless of the injury suffered in the 2009 incident.
Dr Machart reported in July 2015. By this time knee replacement surgery had been undertaken on both the right and left knees. Dr Machart did not accept that the incident was causative of any damage to the plaintiff's left knee or to his left ankle. His diagnosis was of a ligament sprain to the left knee and minor ligament sprain of the left ankle, both of which were temporary and had resolved. It was Dr Machart's opinion that both knee replacements and the surgery for removal of the left ankle ganglion would have been necessary regardless of the incident in September 2009. Further, he did not accept that this incident accelerated the requirement for the left knee replacement. He did accept that the plaintiff might require a further left knee replacement 20 years after the initial surgery.
Dr Machart thought that, in spite of the pain in his knee, the plaintiff could attend to all of his domestic requirements. Any assistance that might be needed, he said, was unrelated to the incident of September 2009. Rather, it arose out of the disability arising from the right knee and the pre-existing arthritic condition of the left knee.
Shortcomings in Dr Machart's report were identified in the course of cross examination. The major concern was that twice he mixed up the knee to which he referred. He said these were typographical errors rather than misdescriptions, although it was not possible, having regard to the similar condition of both knees to determine which of them he was describing at the foot of page 3 and the top of page 4 of the report.
Dr Machart denied that he was particularly busy in dealing with patients for the purposes of providing medico-legal reports. He agreed that he produced between 15 and 25 reports each week.
He agreed that he had seen no radiological reports concerning the plaintiff's left or right knee that were dated earlier than December 2012. He relied on Dr Stackpool's post-arthroscopy report in arriving at his conclusions concerning the condition of the left knee at the time of injury. He confirmed that he had no material that suggested that the plaintiff complained of symptoms in the left knee prior to September 2009. He said that, because of the severity of the post-injury findings, he did not accept the plaintiff's claim to have been asymptomatic. Dr Machart agreed with Dr Bodel that the osteoarthritis in the right knee developed as a consequence of an injury and its treatment 30 years before. He accepted that the plaintiff's capacity to continue to work as a scaffolder until 2009 without the requirement for replacement surgery for the right knee until 2014 provided evidence that it was possible for a person to work in physically demanding employment notwithstanding the presence of osteoarthritis.
His conclusion that the plaintiff suffered a short term aggravation of the pre-existing condition was based on his opinion that there was no evidence of traumatic injury. He was unable to identify which of the four ligaments in the knee was the subject of the sprain that he diagnosed. He agreed that the plaintiff might have difficulty performing household tasks that required flexion, for example cleaning bathrooms.
These shortcomings were significant and I concluded that I could place little weight on Dr Machart's opinions.
Dr Lee, psychiatrist, noted the plaintiff's disinclination to undergo treatment notwithstanding his complaints of significant symptoms. He disagreed with Dr Durrell's diagnosis of Post Traumatic Stress Disorder because of the evidence of the plaintiff's post incident capacity to work full time as a supervisor. He thought the plaintiff could return to work and that he did not need treatment. The issue of significance that arose from Dr Lee's evidence was his conclusion that the plaintiff was malingering. This was based on questionnaires he required the plaintiff to complete that were designed to detect feigned or exaggerated symptoms and that, according to Dr Lee, produced bizarre or implausible results.
Dr Lee provided copies of the questionnaires that he required the plaintiff to complete. They were lengthy and contained questions of some complexity. I was concerned that the plaintiff, a man of limited education and somewhat unsophisticated might not have fully understood their import.
However, there were some elements of the plaintiff's claim that I found to be exaggerated or overstated, particularly in respect of his need for domestic care. Further, I did not accept the plaintiff's claim that he suffered a psychiatric injury.
The plaintiff relied on the reports of Dr Bodel, Dr Barold and Dr Durrell.
After examining the plaintiff in October 2011, December 2013 and November 2015, Dr Bodel expressed the opinion that the injury in September 2009 materially contributed to the plaintiff's condition through a tear of the medial meniscus and aggravation of previous asymptomatic arthritic change.
He noted the findings of the MRI of September 2009 of significant osteoarthritis in the left knee that were confirmed on arthroscopy. In his opinion, this condition developed as a result of the nature and conditions of the plaintiff's employment with the possibility of an additional tear of the medial meniscus in September 2009. The condition of the left knee, he said, was materially aggravated by the injury at that time.
Following examination in November 2015, Dr Bodel noted the replacement surgery on the right knee in 2014. He reported complaints of symptoms in both knees, more on the right than on the left and continuing reliance on pain killing medication. In offering a prognosis, Dr Bodel reported that the left knee recovered reasonably well although he would inevitably require revisionary surgery for both knees at least once during his lifetime.
He accepted that the plaintiff would not return to work as a scaffolder. He was satisfied that supervisory work was within his capability provided he was not required to kneel, squat or climb. If supervisory work was not available, some retraining was required. Dr Bodel accepted that the plaintiff's capacity for domestic work was affected with particular concern for activity that required kneeling, squatting or climbing.
Dr Barold examined the plaintiff in February 2014 and October 2015. His opinion did not vary between assessments. He described the injury in September 2009 as "shearing injuries to the left knee and left ankle" with aggravation of the pre-existing osteoarthritis of the left knee. He noted the plaintiff's depression as a reaction to chronic pain that affected both knees. He recommended psychiatric treatment and pain management. He thought the plaintiff's prognosis was guarded to poor.
Dr Barold agreed with other medical experts that the plaintiff would not return to scaffolding work and he noted significant restrictions on a return to work in any capacity including a limit on the hours of work. The result was that future employment would be limited to work of a sedentary nature requiring retraining. Any prospect of securing employment depended upon the successful treatment of the psychological condition.
Dr Barold noted that the plaintiff in the past received domestic care and assistance and said that he would continue to require assistance in the future.
Of note was Dr Barold's report in October 2015 that the plaintiff informed him that he considered that he had a reasonable result from the left knee replacement but that the right knee remained significantly symptomatic with severe pain and restriction.
Dr Durrell examined the plaintiff in March 2014. He reported that the plaintiff told him of the panic and anxiety that affected him when the air horn sounded while working on W bridge because of the occasions on which inadequate evacuation time was provided. After noting the plaintiff's symptoms and presentation, Dr Durrell diagnosed, as a consequence of the injury in September 2009, Post Traumatic Stress Disorder, permanent in nature and resulting in significant disability. In his opinion, the disorder would prevent any significant prospect of a return to work and it affected his capacity to engage in domestic activity.

[22]

Assessment

This case raised issues concerning the extent to which the pre-existing condition of the plaintiff's knees would, regardless of the injury suffered in this incident, have caused discomfort, disability and loss of income earning capacity. It required application of the principles established in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, explained by Windeyer J in Purkess in the following terms: In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant's conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. It is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise. But he must prove his case: and when the whole of the evidence is before the tribunal of fact the burden is on him to establish the measure of his damages. The evidence may not show that the conduct of the defendant did more than accelerate misfortune. But of course, it will not avail a defendant to show that but for the plaintiff being in some way ailing when he was hurt his injuries would have been less serious than they were. A tortfeasor gets no allowance because of the frailty of his victim. (at p170)
My summary of the medical evidence persuaded me that the plaintiff's claim came within the first of the categories identified in this extract, namely that the degenerative condition of both of his knees would certainly, at some point in the future, disable him in the way in which he was currently disabled. There was little medical evidence to assist in assessing the time within which that disability would have occurred. I was guided, however, by the development of symptoms in the right knee in April 2013, or 3.5 years after the incident in which the left knee was injured. The earlier injury to the right knee suggested that, in ordinary circumstances, it might be expected to be the first to become symptomatic and require treatment.
I considered there was a reasonable prospect that the development of symptoms in the left knee would be delayed for a longer period. Doing the best I could with little or no assistance from the medical evidence and noting that the problems in the right knee took 3.5 years to develop, I allowed a period of a further 6.5 years from April 2013 during which it was likely that the left knee would remain symptom free.
The result was that, on my assessment, by September 2019 the plaintiff would in all probability have found himself in the condition that prevailed at the time of the hearing.
I accepted the plaintiff's claim that he suffered no symptoms at the time of the injury to his left knee. It was supported by the absence of medical or absentee records of complaints concerning the left knee. Mr Davison, who worked with the plaintiff for 20 years, denied having heard the plaintiff complain of symptoms in his knees.
I therefore preferred medical opinion that accepted that the plaintiff suffered a meniscal tear and aggravation of the pre-existing, asymptomatic, arthritic condition of his left knee. I accepted that the injury accelerated the development of symptoms such that the knee replacement surgery was required earlier in time.
The result was that the plaintiff suffered a significant period of pain and disability with the serious consequences to his quality of life already described.
I did not accept that the evidence supported Dr Durrell's diagnosis of Post Traumatic Stress Disorder. I did however find that the plaintiff demonstrated a degree of emotional and psychological reaction to his situation that warranted consideration as an adverse consequence of his injury.
Taking account of these factors, I assessed the plaintiff's non economic loss at 30% of a most extreme case in the sum of $136,500.

[23]

Loss of income earning capacity

The plaintiff initially returned to work one week after his injury undertaking light duties. This involved sitting on a chair and counting scaffolding components as they were returned. Restrictions applied to his hours and to his duties. His employment was terminated in June 2010 because he was unable to perform his duties adequately.
After ankle surgery he was re-employed in a supervisory capacity in November 2010. It appeared that his employers were sympathetic to his situation. He worked full time, five days per week for 8 hours per day and in accordance with restrictions placed on him by Dr O'Halloran. He did not work overtime. If there were jobs that involved the use of stairs, he was re-deployed to other jobs that were on even ground. Notwithstanding this consideration by his employers, his left knee remained very painful while he was working.
The plaintiff's employment was terminated again in September 2012 and he has not worked since. The plaintiff denied he was retrenched because of a downturn in the work available to KJS. He claimed that his employment came to an end because he was unable to do the work properly. Mr Davison continued to work for KJS. The company worked in New South Wales and Queensland and employed 40 permanent staff members and 30 casuals. As far as he knew, there had been no retrenchments.
The plaintiff denied that he would have the capacity to work as a supervisor but for the added disability resulting from the condition of his right knee.
He denied that he had made minimal effort to find employment. He was not registered with Centrelink for this purpose but claimed that he made word of mouth inquiries for work in the scaffolding industry without success. He said he wanted to work but was unsure what he could do. He claimed that the rehabilitation provider engaged by the workers compensation insurer had not recommended any retraining.
Mrs Denniss confirmed the plaintiff's evidence that he was not computer literate. She said that, in any event, he could not sit for long periods because of the need to stretch his legs.
I concluded that the plaintiff's most likely future circumstances but for the injury were that he would not continue to work as a scaffolder to retirement age. As established by the post-injury history, his future circumstances were that he would be disabled initially by the right knee condition so that his income earning capacity would be that of a person with capacity for supervisory or light work only and that by September 2019, he would have been effectively unemployable.
The plaintiff's claim that he would not have been able to continue to work in a supervisory capacity but for the development of symptoms in the right knee was contrary to the medical evidence and I did not accept it. The medical evidence was that, although he continued to suffer symptoms in the left knee, his recovery from surgery had been reasonable and that, but for the right knee problems, he retained at least a capacity for light work.
Although the plaintiff has made minimal attempts to secure alternative employment, I considered that realistically the plaintiff had virtually no prospect of securing employment. His work history since he left school before completing his education was one of unskilled heavy labouring work. He was not computer literate. He was therefore not equipped for sedentary, clerical work in the absence of a considerable degree of retraining. His post injury time spent in a supervisory capacity was the result of some benevolence on the part of the principals of KJS.
The plaintiff claimed $166,572 for past income loss calculated on the basis that his income earning capacity following the development of right knee symptoms was reduced by 50%. He claimed $18,322 for superannuation on the same basis. I considered that this claim was not unreasonable and I allowed it.
Both parties suggested that I award a cushion for future income loss, the plaintiff claiming $150,000 inclusive of superannuation. Having regard to my finding that the plaintiff's income earning capacity, regardless of the injury in 2009, would be reduced to nil by September 2019 when the plaintiff would be close to the age of 57, or 10 years from retirement, I decided that a lump sum of $70,000 was more appropriate.

[24]

Domestic assistance

The plaintiff and his wife lived in a 3 bedroom single storey house with a garden and a lawn. He said that prior to his injury both he and Mrs Denniss worked full time.
They shared domestic work. His domestic duties extended to the garden, maintenance of the property, including painting, and domestic chores such as vacuuming, dish washing, clothes washing and window cleaning. The plaintiff estimated that he spent 6 to 8 hours each week on gardening and maintenance and 14 hours a week on inside domestic activity.
Their plan to renovate the house had been abandoned because of the plaintiff's ongoing disability.
After his injury, he had been unable to undertake any of this work. All had been left to Mrs Denniss, with the exception that they occasionally paid $30 for lawn mowing. He did not go shopping because he had difficulty walking. The plaintiff said Mrs Denniss spent 1 to 2 hours daily doing the work that he formerly undertook.
Mrs Denniss had a different estimate of the hours involved both before and after the plaintiff's injury. She thought he previously spent 8 hours a week on outside activities. Pre-injury they shared household chores, with the plaintiff performing a greater proportion.
Immediately after the injury she performed an extra 5 to 6 hours of work. Her father mowed lawns and they received help from friends.
After the knee replacement her load increased to 30 hours a week because she was required to do everything as well as driving him to medical appointments and elsewhere.
She said there had been little change since that time. She confirmed that they occasionally paid for lawn mowing and said they would pay for more if they had the funds to do so.
Mrs Denniss' assessments of the time she spent assisting the plaintiff varied. She agreed that the 30 hours she claimed was for the benefit of both herself and the plaintiff. For the plaintiff alone, she said she provided an estimated 10 hours of care. In the course of re-examination she revised her estimate of time spent assisting the plaintiff to between 40 to 50 hours.
Each party relied on the reports of occupational therapists, who had differing opinions of the plaintiff's needs.
In response to my expression of concern that the plaintiff's claim for care was overstated, the plaintiff reduced his claim to seven hours per week.
It was not suggested that the plaintiff failed to meet the threshold requirements of s 16 of the Civil Liability Act 2002 and I accepted that in the initial period after his injury and during the period of recovery from surgery, it was likely that the plaintiff required a significant degree of assistance.
As made clear to the plaintiff's counsel, I considered the claim for care to be overstated and that it was necessary to apportion the plaintiff's needs for domestic care between those generated by disability in one knee and those generated, after April 2013, by bilateral knee problems.
I averaged the plaintiff's needs, arising from the left knee and left ankle injuries, at three hours per work for domestic assistance and one hour per week for gardening and home maintenance. I allowed the rate of $26.
For the past to December 2015 I allowed $31,824. For the period of three years and nine months to September 2019, approximated at 186 weeks, I allowed $19,344.

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