Plaintiff v Defendant

1 The plaintiff, Mr Cemal Acir, is gravely ill as a result of end stage cirrhosis of the liver. Absent a liver transplant, he will die within two years. Mr Acir sues his employer, Frosster Pty Ltd, in negligence for, he contends, causing him two discrete injuries, one to his back in January 2005 and one to his right shoulder which manifested itself in March/April 2006. He also argues that, by reason of his excessive consumption of alcohol, caused by the effects of one, or both of the injuries, his underlying cirrhotic liver condition was accelerated or aggravated and rendered symptomatic.

2 Mr Acir was given leave by an Associate Justice of this Court on 19 January 2009 to bring this claim as permitted by s 135BA of the Accident Compensation Act 1985 (Vic) ("the Act").[1] At the commencement of the trial, I determined that the matter be heard without a jury and the question of serious injury be determined at the same time as the trial of liability and quantum.[2]

3 I am required to decide whether the injuries sustained by Mr Acir in the course of his employment with Frosster gave rise to a serious injury within the meaning of s 134AB(38) of the Act. If one or both did, the next issue is whether such injury or injuries arose as a result of Frosster's negligence. If that question is answered affirmatively, then Mr Acir's damages are to be assessed in accordance with s 134AB of the Act.

4 Mr Acir argues that on 19 January 2005, in the course of his employment as a truck driver, he was required by Frosster to remove a crate from the box[3] truck to fill an order placed by a customer. In doing so, he suffered a significant injury to his back ("the January accident"). He contends that the system of work was unsafe, and that he was not trained or appropriately instructed as to the way in which to carry out the task. He also asserts that Frosster was in breach of the manual handling regulations, and breached its statutory duty.

5 Frosster maintains that it was not in breach of any common law duty. It disputes the existence of a statutory duty. Further, if it was in breach of any such duty, then it says that Mr Acir's damages should be reduced on account of his contributory negligence.

6 It was not in issue that Mr Acir suffered an injury to his back. What was hotly in issue were the consequences of that injury and, particularly, whether it could be said to have contributed to the symptomatic liver condition, as well as the nature and extent of the back injury.

7 It is alleged that the further injury sustained by Mr Acir was to his right shoulder as a result of carrying out light duties after his return to work. Mr Acir contends that between May 2005 and May 2006, he was required to use a hook type device to pull down empty pallets which were stored at some height at Frosster's warehouse. This placed pressure on his arm and it is said ultimately resulted in the development of an "in substance" tear of the rotator cuff. Mr Acir says that removing the pallets in this way constituted an unsafe system of work. Alternatively he says that it was caused by the January accident which resulted in him carrying out this work which led, in turn, to the shoulder injury. Frosster argues that the work was light and no breach of duty has been established. Further, it says that the shoulder condition is related to Mr Acir's underlying diabetes and not the work process.

8 The issue of the relationship between the back injury and Mr Acir's liver condition is important to both the question of serious injury and the assessment of damages. If the injury has materially contributed to Mr Acir's liver condition by reason of the excessive consumption of alcohol as a response to the symptoms, then it is argued that it has produced causally related consequences in the form of the liver damage both for the purpose of the serious injury determination and the assessment of damages. On the other hand, if Mr Acir does not establish that his liver condition is related to the back injury, then it is an independent intervening event that circumscribes his damages claim, and may affect the determination of whether he has sustained serious injury within the meaning of s 134AB of the Act.

9 One other issue emerged midway through the trial. Mr Acir's lawyers had thought that Mr Acir had been placed on a waiting list at the Austin Hospital for a liver transplant. When Dr Gow, consultant gastroenterologist and hepatologist and physician in charge of the liver transplant team at the Austin Hospital, was called, it became apparent that Mr Acir was not on such a list and that he was awaiting a determination by the psychiatric unit at the Austin Hospital as to whether he was fit to be placed on the list. The trial was adjourned so the position could be clarified. Dr Gow subsequently reported that, on 17 July 2009, Mr Acir had been placed on the list.[4]

10 Mr Acir, his wife Selma and son Bercil gave evidence viva voce. Mr Acir's general practitioner Dr Munir, his orthopaedic surgeon Mr Chris Haw, and gastroenterologist Dr Gow each provided reports and gave evidence viva voce. Reports of medico-legal specialists Mr Schofield, an orthopaedic surgeon, and Dr Wall, a consultant gastroenterologist, were tendered and their deponents cross-examined. Psychiatrists Dr Kwong and Dr Epstein both gave evidence viva voce and their reports were tendered. In addition, the reports of the following medical and para-medical practitioners were tendered:

Their authors were not required for cross-examination.

11 A report of a Mr Dohrmann, engineer and ergonomist, was tendered. Mr Dohrmann was not required for cross-examination. Several reports containing calculations and opinions relevant to economic loss were also tendered.

12 Frosster called Mr Caligari, an inquiry agent, Ms Kanaan a drug and alcohol counsellor, and two witnesses employed by Frosster in 2005 and 2006, Mr Peter Comfort and Mr Victor Marangos. Frosster also tendered medico-legal reports of Dr Wyatt,[18] Dr Lloyd[19] and Dr Chamberlain.[20]

13 The following summary of facts is, I think, uncontroversial. If there is any issue this constitutes my findings.

14 Mr Acir was born on 1 January 1968 and is married with two children aged 21 and 16. He had limited high school education in Turkey and, in 1986, immigrated to Australia.

15 Mr Acir initially worked for six years at Ford as a process worker and then took a retrenchment package in 1992.[21] Later that year, after a holiday in Turkey, he commenced work as a taxi driver, ultimately owning his own taxi and contracting other drivers to drive his vehicle.

16 In November 1995, Mr Acir was diagnosed as a Type 2 diabetic and prescribed medication and recommended alterations to his diet. He was treated by his local general practitioner and referred to a gastroenterologist, Dr Taft.[22]

17 The taxi venture proved unprofitable. In 1997 Mr Acir was involved in an altercation at the Melbourne Airport and decided to give up taxi driving.[23] He was then unemployed for a lengthy period, but engaged in some courses to improve his English and his computer skills. In 2002, he obtained work with East Street Upholstery as a truck driver and worked part-time with that company until early 2004. Towards the end of that period, he obtained his rigid truck licence, which enabled him to drive a variety of different heavy vehicles.[24]

18 Prior to 2004, Mr Acir's general health appears to have been good; he saw his local general practitioner, Dr Munir, on a few occasions in relation to his diabetic condition.[25] Dr Munir said that he did not notice anything untoward in relation to Mr Acir's consumption of alcohol during this period.[26]

19 In April 2004, Mr Acir obtained employment with Frosster as a truck driver.[27] In October 2004, after an altercation away from work, he damaged his patella and was off work for nine weeks.[28]

20 Mr Acir resumed work in December 2004 with Frosster. Then, on 19 January 2005, whilst engaged in the "Brunswick run", he sustained the injury to his back. He saw a doctor at a local clinic the next day, and went to the Royal Melbourne Hospital on the weekend.

21 Mr Acir went back to work in May 2005 on a limited return to work programme. He carried out light duties, which increased from four hours per day, three days a week[29] to six hours per day, five days per week.[30]

22 On 5 August 2005, after working a half day at Frosster, Mr Acir drove to Mildura. A licensed inquiry agent, Mr Caligari, followed him on that trip and video of some aspects of it was tendered.[31]

23 On 19 August 2005, Mr Acir saw Mr Chris Haw on a referral from Dr Munir. Mr Haw continued to manage his orthopaedic condition up to 18 July 2007.

24 Mr Acir's psychological condition was managed by Ms Semra Durmaz, a Turkish speaking psychologist who first saw him on 3 January 2006 and has seen him many times since.

25 In February 2006, liver function tests arranged by Dr Munir revealed a severe abnormal liver function, and Dr Munir noted that Mr Acir's diabetes control was "not the best".[32] In April 2006, Mr Acir attended Moreland Hall for treatment for his alcohol consumption.[33] He initially saw Ms Dianne Kanaan, a drug and alcohol counsellor.[34]

26 Mr Acir's right shoulder problems commenced in late March 2006 whilst working on light duties.[35] He finished work with Frosster on 31 May 2006 and has not worked since.

27 Between March and November 2006, he and his wife separated after Mr Acir became verbally abusive toward family members. His wife took out an intervention order and went to live, with the children, at her mother's house.[36]

28 On 4 August 2006, Dr Munir certified Mr Acir as fit to work as a taxi driver.[37]

29 On 24 October 2006, Mr Haw manipulated Mr Acir's right shoulder under anaesthetic.

30 During 2007, Mr Acir was referred to Ms Kwong, psychiatrist, for treatment and she saw him on nine occasions between 8 February and 16 July. In June, Ms Kwong increased his medication from one to two anti-depressant tablets per day.[38]

31 In May 2007, Mr Acir was referred to the Austin Hospital.[39] By October 2007, when his treatment was managed by the Gastroenterology Clinic, Mr Acir underwent an operation to remove his gall bladder. Since then, he has continued to have regular build-ups of fluid in his stomach which requires fluid tapping on a monthly basis.[40]

32 In early December 2007, Mr Acir was seen by Dr Testro, a gastroenterologist at the hepatitis clinic at the Austin Hospital. He noted that Mr Acir was a type 2 diabetic with hypertension and hypercholesterolaemia. At that time, he had significant muscle wasting.[41]

33 Mr Acir has continued to be managed at a general practitioner level by Dr Munir[42] and Ms Durmaz, the psychologist. Since April 2008, his liver condition has been managed by Dr Gow at the Austin Hospital.[43] As I have said, he was, in July of this year, placed on the liver transplant waiting list.

34 Counsel for Mr Acir and for Frosster devoted considerable time to the issue of Mr Acir's credit. It was conceded by Mr Acir's counsel (as it had to be) that there were inconsistencies and contradictions in his client's evidence.

35 It suffices to say that I have formed the clear impression that Mr Acir was prone to exaggeration and denial wherever he perceived that such an approach would assist his claim. The following illustrate this tendency:

(a) Inconsistencies in his sworn evidence of his drinking habits before and after the back injury;

(b) Inconsistencies between his sworn evidence and other out of court statements as to his drinking habits before the back injury;

(c) His false description of a trip to Mildura on 5 August 2005 after he had finished a half-day's work;

(e) His recollection of the events surrounding his two drunk and disorderly charges in 1991 and 1994;

(d) His evidence relating to when he actually ceased consuming alcohol.

I have set out subsequently and in greater detail my reasons in relation to each of these matters.[44]

36 However, I did not regard the taxi cab licence application lodged in August 2006[45] as being relevant to Mr Acir's credit. He did not complete the form - Dr Munir did, and it reflects adversely on Dr Munir's credit. The form completed by the doctor certified Mr Acir as fit to work as a taxi driver - at the same time as he asserted that he was "unfit for any work" for workers compensation purposes.[46] I have accordingly treated Dr Munir's opinions with some reservations.

37 In matters where Mr Acir's credit is in issue, it is necessary to look for other evidence which may support his account. An example of this is his account of sustaining injury whilst working on the back of the truck. I accept that he suffered such injury and generally (at least as to the immediate events of the accident) in the circumstances he describes. On the other hand, where there is a conflict between his evidence and that of another witness, I have, generally, preferred the evidence of the other witness.[47] For instance, on the issue of contributory negligence I have preferred Mr Comfort's account of the configuration of the crates in the box of the truck.

38 Frosster provides goods delivery services throughout the Melbourne metropolitan area. Mr Acir was engaged as a driver and his job was to deliver milk products to retail outlets. A driver was allocated a particular run (e.g. Brunswick, Melbourne, South Melbourne) with a number of regular customers along the route.[48] Mr Acir worked nightshift, six days per week, including Saturdays, commencing at 11.30pm and finishing at about 9.30 or 10.00am the next morning. He was required to load an Isuzu truck at the Campbellfield depot with milk products stored in crates. The crates were stacked upon each other up to about five high and positioned throughout the box. The driver would usually have a manifest of orders provided to him at the depot which had to be filled and then delivered to the customers. In addition, there were verbal orders placed by customers during the course of the particular run which were filled by the driver, where possible, from products stored in crates in the box.

39 The uncontested evidence was that the milk products were within both plastic containers and cartons, and were loaded into plastic crates.[49] A maximum of 18 litres could be accommodated in a crate (6 x 3 litre containers), which had a weight of 20 kilograms.[50] The crates were stacked five high. Each crate is 32 centimetres high, so with five stacked upon each other, the overall height was about 160 centimetres.[51]

40 Within the box, a crossbar ran laterally across the storage area and was used to prevent rows of filled crates from falling.[52] As the box had two metal rails running down each side, the crossbar could be fitted at an appropriate point into the two rails. It was located at about the height of the fourth stacked crate.[53]

41 During the course of the run, empty crates accumulated and were placed to the rear of the box.

42 Mr Acir estimated that the proportion of written orders (usually placed by facsimile) to verbal orders given by customers in the course of the run was about half and half.[54]

43 Mr Acir described his training as being rudimentary. At the commencement of his employment he worked for two weeks with another driver, who demonstrated the loading and unloading of the box, servicing the customers and how to deal with the crates.[55] Mr Acir denied ever receiving any training about the lifting of crates, the removal of the crossbar or as to how injuries might occur when handling crates.[56] This evidence was not challenged and was confirmed by Mr Marangos in a general sense.[57]

Circumstances leading up to the January accident

44 After the two weeks training, Mr Acir worked on the Port Melbourne run, he then worked on the city run until October 2004. At that time, he sustained a non-work related injury to his patella.[58] When he returned to work, his run had been taken by another driver and he became, in effect, an interchange driver for others who were unable to work their particular run. To learn this job, he had to accompany other drivers performing their runs. It was in the course of working with a fellow employee, Mr Peter Comfort, on 19 January 2005 on the Brunswick run that he sustained the injury to his back.[59]

45 Mr Acir denied having any prior back symptoms. His treating general practitioner, Dr Munir, confirmed that there was no history of back complaints made to him.[60]

46 Mr Acir said that the low back pain occurred as he stretched over the bar to lift up a crate:

"So I have to go and try to lift it up with one hand. When I do that, I tend to do that, I lift it up half way - almost half way down but at the same time. I feel something happen low back. It didn't hurt me but I just feel something happen, like click sort of thing and then ...".[61]

He then completed the order, but when the truck reached the next customer, he could not move from the truck.[62] He told Mr Comfort of his injury.[63] However, he did complete the other orders on the round.

47 Mr Acir was unable to work the next day and attended the Coburg Family Medical Centre.[64] At that time, examination showed tenderness in the lumbar spine, but no neurological deficit. He was treated with Panadol Forte and Naprosyn.

48 In the early hours of 24 January 2005, Mr Acir attended the Royal Melbourne Hospital seeking analgesia at the emergency department. He was noted to have significant spasm of the erectus spine muscle. The diagnosis was of mechanical back pain and he was prescribed a number of painkillers and anti-inflammatories and suggested that he undertake physiotherapy.[65]

49 On 28 January 2005, after attending the Royal Melbourne Hospital, Mr Acir then went to see, Dr Munir, his general practitioner. A CT scan was organised and it revealed:

"A small right paracentral disc protrusion is present at L5-S1 indenting the right anterior aspect of the thecal sac and touching the right S1 nerve root at its origin. The L5 nerve root exits normally above this level."[66]

"Small right paracentral posterior disc protrusion at L5-S1".[67]

50 A subsequent MRI carried out on 1 September 2005 confirmed the presence of an abnormality at L5/S1. Dr Deany, the radiologist, noted:

"A mild diffuse annular disc bulge is noted at L5-S1 with no neural compression".

"Diffuse annular disc bulge at L5-S1, without neural impingement".[68]

51 Mr Acir's back pain continued notwithstanding treatment in the form of medication and physiotherapy. He was able to return to work at the end of May 2005, performing light duties for half a day a number of days per week.

52 Mr Acir was first seen by Mr Haw on 30 November 2005, after he had returned to light duties. Mr Haw discussed two forms of surgery with Mr Acir during the period in which he treated him, 30 November 2005 to 18 July 2007. The first option was a lumbar spine fusion. The second was a less invasive piece of surgery which involved the use of a prosthesis to stabilise the lumbar spine. Neither was proceeded with.

53 When Mr Acir returned to work, Dr Munir placed restrictions preventing him carrying out any heavy lifting, bending or turning of the back and limited his working hours, initially set at four hours a day, three days a week.[69]

54 Mr Acir has not worked since May 2006. At that time, he was on light duties, working five days a week on a six hour basis. He ceased work, not because of his back condition, but because of the disability of his right shoulder.

55 Since last seen by Mr Haw on 18 July 2007, Mr Acir has continued to suffer ongoing back pain which limits his ability to carry out many tasks. To some extent, the problems with the back (although by no means insignificant) have been subsumed by the life-threatening cirrhotic condition of his liver.

56 Mr Chris Haw, treating orthopaedic surgeon, provided a number of reports and gave evidence viva voce. He formed the view that Mr Acir suffered significant instability of the back caused by a disruption of the annulus of the disc at L5 and S1.[70] He attributed this to the work incident. He was of the view that, given the circumstances surrounding Mr Acir's endeavour to retrieve the crate, there were fairly significant forces placed on the L5/S1 disc at that time. He thought that as a result of the back injury, he was a likely candidate for a spinal fusion at L5/S1, but that depended upon recovery from the liver problem.[71] In relation to his ability to carry out work, Mr Haw felt that Mr Acir was not fit for his pre-injury employment and that the prognosis for the future "wasn't particularly good".[72]

57 This opinion sits comfortably with those provided in the medical reports of Mr Ian Jones[73] and Mr John O'Brien,[74] specialist orthopaedic surgeon.

"Indeed, both injuries[75] in isolation would prevent this patient from returning to any form of manual employment. Both injuries in my opinion have resulted in significant disability which would preclude this patient from normal full-time employment. Given his employment background I would therefore consider that each injury separately would preclude this patient from returning to gainful employment."

59 Mr Jones agreed with Mr O'Brien that by reason of the lower back complaint Mr Acir did not have the capacity to undertake his previous employment, and particularly that Mr Acir could not return to work requiring repeated bending or lifting. Mr Jones did, however, feel that Mr Acir had "the capacity to drive a taxi or small van".

60 Mr Schofield also concluded that Mr Acir had sustained a disc prolapse at L5/S1 and noted, at his last examination in April of this year, that there were clinical signs of ongoing central prolapse which had not improved. He, like Mr Haw, was of the view that Mr Acir could not return to his pre-accident work, stating in his report:

"Taking into account his age, injuries, education skills, work experience and place of residence I do not consider that Mr Acir is presently capable of undertaking suitable employment".[76]

61 Although Mr Schofield was cross-examined concerning the contents of a video of Mr Acir, there was no serious challenge to his opinion as to the work capacity of Mr Acir.[77]

62 Mr Schofield[78] was also of the view that Mr Acir was significantly restricted by his back injury, but thought that he may be able to perform 15 hours per week taxi driving. Mr Schofield qualified this opinion in saying:

"He may be able to do it for a short period" and "so it's constant getting in and out of the vehicle and lifting any objects that your clients have, would make it difficult".[79]

63 I note that both the general practitioner, Dr Munir,[80] and the physiotherapist, Mr Takyar, were also of the view that the back injury precluded Mr Acir from returning to his pre-injury work.[81]

64 I accept that Mr Acir, in the course of his employment on 19 January 2005, suffered an injury to his back which resulted in a disc disruption at L5/S1 as described in the evidence of Mr Haw.

65 I also accept that, irrespective of the shoulder injury and liver condition, this injury to his back has had a significant effect on the plaintiff's lifestyle and work capacity.

66 Each of the four orthopaedic surgeons were in agreement that he could not return to his pre-accident employment. The only real area of dispute is what residual capacity for employment he now possesses. I do not accept the opinion of Mr Jones that Mr Acir could carry out work driving a taxi or van. Mr Schofield's explanation of the difficulties associated with such jobs are convincing and accord with the views of Mr O'Brien and Mr Haw.

67 For practical purposes, given Mr Acir's background and education, I think that the injury to the back alone has rendered him close to unemployable in the future.

68 There was real controversy in the course of the trial as to the cause of the right shoulder symptoms experienced by Mr Acir since March/April 2006. Mr Acir's case is that the injury to his rotator cuff was caused by carrying out particular aspects of the light duties employment with Frosster. In particular, he identified the task of removing pallets from a stack with a hook type device.

69 Frosster contended that such work was intermittent and unlikely to cause such an injury. Instead, Frosster postulated another potential cause for the condition, namely, Mr Acir's diabetes which can, of itself, produce a frozen shoulder.

70 It was not disputed by Frosster that Mr Acir was engaged in using the hook to remove the pallet. He engaged in this task, it would seem, for a year after his return to work in May 2005. A video of the light work duties was tendered in the course of the trial.[82]

71 Mr Acir agreed that the video showed aspects (but not all) of the duties he was involved in.[83] In particular, it showed the use of the hook to move pallets; the video did not show the pallets being pulled from a stack, however, as I understand it, the hook would be attached to part of the pallet and then pulled, causing the pallet to fall to the ground. There was considerable debate concerning the height from which this activity would occur. Mr Acir was adamant that the pallets were stacked up to 15 pallets high; "very high"; "up to 1.5 metres".[84] He described the task as requiring him to pull the pallet, at times from a considerable height, onto the loading dock floor and then to drag the pallet with his right arm. He said that the task was particularly difficult when the stack was high and, at times, the hook would become stuck and cause pain in his shoulder when he pulled on it. He estimated that this occurred seven out of ten times.[85]

72 On the other hand, Mr Marangos, whose office was located close to the pallet stack,[86] gave evidence that the pallets were usually stacked three to four high, and up to ten high, but rarely, if ever, up to 15 high.[87] He said that the pallets were very light and easily lifted by one person, and hence stacked by hand and invariably no more than ten high.[88] Indeed, Mr Marangos said he recalled Mr Acir telling him that the pallets were too high, and that it was then arranged that they would be stacked three to four high.[89] He did not agree that after this complaint the pallets were ever up to ten high again.

73 Whilst accepting that Mr Acir had complained of the hook getting stuck in the pallet and hurting his shoulder,[90] Mr Marangos maintained that the task was simple and one he had performed himself.[91]

74 For reasons that I have already identified, I think that Mr Acir is given to exaggeration, particularly when it is in his interests to do so. Mr Marangos was forthright and made concessions against Frosster's interests in the course of his evidence. I see no reason not to accept his evidence, and prefer it to that of Mr Acir in relation to the number of pallets which might be stacked, namely, three to four and up to ten at times. However, it does seem likely that at times when stacked, rather than free-standing, there was a greater chance of the pallets being stuck and therefore requiring more effort in removal.

75 At least in relation to the question of cause and effect, whether the height of the pallets was three or four or ten high is not overly important. The real question is whether that exercise, namely, the use of the right arm to pull the pallet from the stack (whatever the height) was productive of the shoulder injury. Having seen the video, which only shows the use of a hook on a pallet at ground level, I am satisfied that the force involved in pulling a pallet from a height of between three to four high to ten high on a regular basis would put real pressure on his shoulder and arm, particularly if the pallet became stuck.

76 Mr Acir said that his right shoulder continued to get worse with the light duties in March of 2006 and that every time he went to his general practitioner, he told him of the problem.[92] On his account, by the end of May 2006, he could not move his right arm at all and had to use his left arm.[93] He ceased work on 31 May 2006 because of both the shoulder and the back, but the "shoulder was the big problem".[94]

77 In his claim for compensation, filed in June 2006, Mr Acir attributed the injury to "pulling pallets with hook, tightening rope using my right arm strength".[95] Frosster accepted this claim and he was paid compensation for the shoulder injury.[96]

78 On 9 June 2006, Mr Haw performed a hydrodilation and on 24 October 2006, Mr Haw manipulated Mr Acir's shoulder. He last saw Mr Acir in July 2007.

79 In determining whether the carrying out of this task repetitively over nearly one year could account for his symptoms, one has to bear in mind Mr Acir's underlying diabetic condition which could, as Mr Haw explained, make him vulnerable to this type of injury:

"This patient, in addition to having an earlier prolapsed intervertebral disc injured his right shoulder whilst involved in heavy work pulling pallets and tying ropes. However, the presence of diabetes is also a factor that is associated with capsulitis of the shoulder and a frozen shoulder. Nevertheless, given the nature of his employment, his employment would appear to be a significant contributing factor in as much as the activities of the worker outside of the workplace and his lifestyle are not implicated but there is hereditary risk in the form of diabetes that may have predisposed him to developing a frozen shoulder."[97]

80 Mr Haw re-affirmed this opinion when he gave evidence. He described the injury as an "in substance" tear.[98] Although he accepted that diabetes may be a cause of the frozen shoulder condition,[99] I did not understand him to shift from the opinion expressed in his report.[100] He has seen Mr Acir on a number of occasions and had monitored his progress. Given Mr Haw's familiarity with Mr Acir and his own experience as an orthopaedic surgeon, I think his opinion is of considerable value. Insofar as it relates the shoulder injury to his work, it is shared by Mr O'Brien and Mr Schofield. Indeed, both Mr Schofield and Mr Haw thought that there may be a tear of the rotator cuff, although not discernible on ultrasound.

81 Both Mr Schofield[101] and Mr O'Brien[102] supported Mr Haw's view as to the connection between work and the development of the right shoulder condition.

82 On the other hand, Mr Jones[103] and Ms Wyatt,[104] a rehabilitation expert, are of the view that the shoulder condition is related solely to Mr Acir's diabetes. The general practitioner, Dr Munir, also thought that the shoulder condition was connected to Mr Acir's work, but acknowledged that it was not possible to choose between the two potential causes.[105]

83 If it was accepted, as I do, that Mr Acir carried out activities that placed pressure on his shoulder regularly throughout the period of one year, then I find it difficult to ignore that as being a cause of the shoulder condition, particularly given Mr Haw's evidence of a predisposition, created by his diabetes, to such an injury. Given the timing of the onset of symptoms and the nature of the work, when combined with the medical opinions of Mr Haw and those doctors who support his opinion, I have come to the conclusion that Mr Acir's work materially contributed to his shoulder injury. I think this is particularly so when, in light of the nature of the underlying condition, it may not have taken any major trauma or force to produce this result.[106]

84 Mr Acir suffers from decompensated cirrhosis of the liver.[107] Cirrhosis means a scarring of the liver which, at post-mortem, may take a tawny appearance.[108] There are a number of causes of this condition, two of which are relevant in this case. The first is the consumption of alcohol at a high level. Alcohol is toxic to the liver cells and destroys them to the point of interfering with the function of the liver.[109] The scarring that is laid down is a consequence of that toxicity. The second is diabetes type two, which can produce a condition known as fatty liver[110] or NASH.[111] It also affects the liver cells and may result in liver dysfunction. According to both Dr Wall and Dr Gow, the two causes can act synergistically and produce devastating consequences for the liver.[112]

85 Dr Gow said that for a person to develop chronic liver disease it is necessary to have a consumption of more than 100 grams of alcohol a day for ten years, which approximates to about six cans of beer per day for ten years.[113] There was a comforting note in Dr Gow's evidence to the effect that most people who drink excessively do not progress to chronic liver disease.[114] Dr Gow explained that the minimum period for the development of symptoms is a period of ten years' heavy drinking, but it could take up to 30 years or, indeed, there may never be a manifestation of symptoms.[115]

86 It was not in issue that Mr Acir's liver condition remained, in effect, undetected and asymptomatic until it was identified after tests ordered by Dr Munir in February 2006.[116] At that time, it does not appear that Mr Acir had any symptoms relevant to the liver disease.

87 Mr Acir was referred to the Austin Hospital gastroenterology clinic in May 2007. In October 2007, under a laparoscopic cholecystectomy, his liver was directly examined, and his gall bladder removed. Examination demonstrated established cirrhosis and fatty tissue changes. The medical opinion is that the damage to the gall bladder resulted from the liver condition.

88 As far as I can tell, the first overt symptom of his cirrhotic liver was the development of excessive abdominal fluid which became frequent, and has continued to the present time.

89 Mr Acir suffered considerable weight loss, ultimately plummeting from approximately 90 kilograms to 60 kilograms with considerable muscle wastage. In addition, he has some mild ankle swelling and disturbed sleep patterns consistent with advanced liver disease.[117] Dr Gow stated that these were typical symptoms for someone with cirrhosis of the liver.[118]

90 In April 2008 Mr Acir was transferred from management in the gastroenterology clinic at the Austin Hospital to its liver transplant clinic, managed by Dr Gow.[119] The liver transplant clinic has managed his treatment since then. At the commencement of the trial, I was told that Mr Acir was on the waiting list at the Austin Hospital for a liver transplant. As I said earlier, on day four of the trial (11 May), counsel for Mr Acir told me that this was not correct and that, in fact Mr Acir had not yet been accepted for the waiting list for a liver transplant. After the case was adjourned to enable further evidence to be obtained, a further report from Dr Gow was produced which noted that Mr Acir has now been accepted onto the waiting list.[120] Dr Gow said that once on the waiting list, the mean delay is about one year, but the severity of the patient's illness dictates when a transplant may become available.[121] At present, there are 50 patients on the waiting list.

91 Mr Acir's current pattern of treatment at the Austin Hospital is periodic endoscopical appraisal of his oesophagus and stomach, draining of the fluid in the stomach (on a monthly basis), liver function tests, a suite of medications and dietary advice.[122]

92 Dr Gow's evidence as to the beneficial effects of the liver transplant is extraordinarily heartening. He told me that 75% of people placed on the transplant waiting list receive transplants. Having received the transplant, approximately 95% will survive for one year and 75% for ten years.[123] Those who undergo a transplant will undergo a difficult recuperation, but should be in a position to return to full-time work after six months.[124] He did not suggest that Mr Acir would be precluded from returning to full-time work as a driver.

93 Mr Acir has a very limited life expectancy absent a liver transplant - Dr Wall thought a 30% chance of surviving to 12 months.[125] Dr Gow provided a "best guess" of 70% chance of Mr Acir seeing out a year and 40% to 50% chance of seeing out two years.[126]

94 I accept the evidence of Dr Gow as to all of the above matters. No-one could be in a better position to offer such opinions and his evidence was not challenged on these issues.

The relationship between Mr Acir's injuries and his liver condition

95 Both gastroenterologists, Dr Gow and Dr Wall, expressed an opinion about the causal connection between the asserted excessive drinking after the January accident and Mr Acir's liver condition. Each based their opinion upon the proposition that, prior to 19 January 2005, Mr Acir was a modest drinker, to Dr Wall - seldom exceeded two six packs of beer per week,[127] to Dr Gow - six to ten cans of beer per week,[128] and that subsequent to and within weeks of the injury, he drank excessively (on his account eight to ten stubbies each day and half a bottle of whisky per day) for approximately 1¾ years (i.e. to October 2007 when the gall bladder was removed).[129]

96 Dr Gow was asked the following questions: [130]

COUNSEL: "Now, in relation to the history you took in that first report and on that first occasion, do you have any view as to the importance in relation to the development of the disease of the drinking to excess for approximately two years, as you describe?"

WITNESS: "I think the cause of his underlying liver disease was NASH, and that the presentation with liver failure was accelerated by his alcohol."

HIS HONOUR: "All right, just if I can make a note of that, the cause of the underlying disease was NASH, that is the fatty liver condition?"

WITNESS: "Yes."

HIS HONOUR: "And that was accelerated, that is the onset of symptoms were accelerated by his excessive drinking over that period of two years?"

WITNESS: "Yes."

HIS HONOUR: "Is that a fair summary, Doctor?"

WITNESS: "Yes."

HIS HONOUR: "That's accepting his history?"

WITNESS: "Yes."

COUNSEL: "And are you able to say in terms of time or not by (indistinct) acceleration may have occurred?"

WITNESS: "There's no data in which to give you a good time cause."

HIS HONOUR: "Does that mean that you cannot say when, absent the alcohol consumption at that level, he would have come to this condition?"

WITNESS: "Yes."

HIS HONOUR: "Would he have come to this condition in any event?"

WITNESS: "Yes."

HIS HONOUR: "But as to whether it's two years or five years later, you cannot say?"

WITNESS: "Correct."

97 Dr Gow was then asked by counsel for Mr Acir to accept a different factual scenario:[131]

COUNSEL: "Perhaps I'll put the question in a slightly different way. If you assume, for the purpose of answering the question, he was a heavy drinker right up - from the age of 20 right up until January 2005, and then he has a back injury, and then from about February, early February 2005, he increased that alcohol consumption considerably. Are you able to say whether or not the increase that might have gone on for about two years had any role to play in the development of his end stage liver disease?"

WITNESS: "He would have, so if he was a long term heavy drinker, yes, the likely cause of his liver disease would be more likely to be alcohol than NASH related, but it doesn't change the effect that if he's drunk heavily for those preceding two years that it would accelerate his presentation with liver failure."

98 Dr Gow also said that whatever the cause of the pre-existing damage to the liver (be it diabetes or alcohol), one could not say when symptoms referable to that condition would have emerged.[132] This was premised upon his assumption as to the post-January accident increase in drinking.

99 Dr Wall saw Mr Acir at the request of his solicitors on 13 March 2009. In his report,[133] based in general terms on the history I have set out in [93], he provided the following opinion:

"Having regard to this information and instructions I would indicate as follows:

(i) The sharp exacerbation of his liver disease was employment related through the entities of pain, isolation and inability to work, and a feeling of worthlessness and rejection, and was a change from his previous social pattern of drinking which was insufficient to have caused his advanced liver disease,

(ii) The alcohol excess causing the liver impairment related to the work related injuries for the above reasons, but in particular he was drinking early to relieve the pain as he was intolerant of a number of different analgesics which because of his liver disease cause side effects or were inappropriate. I would indicate that alcohol alone was unlikely to be the cause of his presentation of advanced liver disease within 2 years of his original injuries but without an alcohol exposure in this high amount the liver disease that was pre-existing perhaps on the basis of non-alcoholic fatty liver disease, would have been unlikely to lead him to this acute deterioration in this short period of time. In my mind there is no doubt that the advanced presentation and irreversible nature of his liver disease relates directly to the influences from his occupational injury and disability."

100 Both Dr Gow and Dr Wall were impressive witnesses, with a wealth of clinical experience behind them. Dr Gow is an acknowledged expert on liver transplantation. Each were of the view that if Mr Acir consumed alcohol for a period of around 1¾ years in significantly and markedly excessive quantities (in contrast to an established mild drinking pattern prior to the January accident), then there was a causal connection between the consumption of alcohol over that period and the liver condition. Each also expressed the view that Mr Acir would have ultimately been in the same position at some time in the future, notwithstanding the asserted heavy drinking. Dr Wall was prepared to provide an estimate of five to ten years, whilst Dr Gow said it could not be estimated.

101 Dr John Colman, gastroenterologist, examined Mr Acir on behalf of Frosster and was also asked to comment on the opinions of Dr Gow and Dr Wall. Dr Colman also relied on the history given to him by Mr Acir of a massive increase in his consumption of alcohol after the back injury. He concluded:

"As I previously stated, there is a connection between his back injury, as this caused depression and a severe increase in his alcohol intake which quite possibly unmasked a previous liver condition (NASH with progression to cirrhosis)."[134]

102 Acceptance of Mr Acir's account of his alcohol consumption - both before and after the January injury, is fundamental to the opinions expressed by Drs Gow, Wall and Coleman connecting his liver disease to his alcohol consumption post-accident. It is axiomatic that, to use the words of Anderson J in Pollock v Wellington:[135]

"Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts."

103 In the oft-cited decision of Makita (Australia) Pty Ltd v Sprowles,[136] Heydon JA said as follows:

"... and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached".

104 In opening the case on behalf of Mr Acir, his counsel described him as a moderate drinker prior to the January accident who generally consumed alcohol on weekend social occasions and, on average, about a six pack of beer per week; [137] the equivalent of less than one can of beer a day. He was, it was said, transformed into a reckless heavy drinker within weeks of the back injury.

105 In evidence-in-chief, Mr Acir was asked the following questions by his counsel:[138]

COUNSEL: "Did you enjoy drinking alcohol?"

WITNESS: "I drink occasionally, like the weekends sort of thing."

COUNSEL: "What sort of drink did you consume?"

WITNESS: "Like weekend if we were at barbecue or we go to visit friend house, six pack to eight cans, something like that, you know."

COUNSEL: "How regularly would you have drunk that type of alcohol?"

WITNESS: "Not every week, sometime even at my place I had a barbecue, I had a six pack and then I'd have a couple of beers and then I'd stop drink, you know, because I don't feel right."

COUNSEL: "Can you recall whether in the past you've had any trouble with police in relation to drinking?"

WITNESS: "Yes, I have, a couple of times."

COUNSEL: "Can you remember when that was?"

WITNESS: "There was 1993, 1995, if I'm not wrong."

106 He was here referring to two prior convictions in the 1990s for being drunk in a public place.[139] I shall return to this issue in a moment. Mr Acir then described his increase in drinking alcohol subsequent to the January accident in the following terms:[140]

COUNSEL: "All right. You indicated before this date, 19 January 2005, you drank, sometimes you have a six pack, sometimes you might have eight, not every week. Did you continue to have some alcohol when you were at home off work?"

WITNESS: "The - when I injured my back, I increased the alcohol."

COUNSEL: "How soon after you injured the back did you start increasing?"

WITNESS: "A couple of weeks later I started to drink very heavily."

COUNSEL: "What type of - how much did you drink?"

WITNESS: "I drink minimum 12 cans, three-quarter - maybe three-quarter of whisky, maybe two bottle of wine, whatever I find just - sometime I take all the painkillers. I have a lot of different - different type of painkillers, I take with them and then I just want to froze my body not to feel that pain."

COUNSEL: "How regular, yes, I was coming to it Your Honour, yes, you said you had 12 cans - - -"

HIS HONOUR: Twelve cans."

COUNSEL: "- - - sometimes whisky, wine, how often?"

WITNESS: "Every day."

COUNSEL: "It may be clear from what you said as to why you take it, but why were you taking - why did you start increasing the alcohol?"

WITNESS: "Because the - in the beginning I got a lot of pressure from the employer, I didn't get pay right, I didn't get - nobody didn't believe me in the work place."

COUNSEL: "Did pain have anything to do with increasing alcohol?"

WITNESS: "Everything make me uncomfortable, like of course the pay is important, and then another thing the bosses and supervisors was treating me like you're nothing and then - - -"

COUNSEL: "You say you started about a couple of weeks after the injury?"

WITNESS: "Yes."

COUNSEL: "You were still off work then?"

WITNESS: "Yes."

COUNSEL: "Did you remain off work until - it's not clear, but would it have been about May 2005?"

WITNESS: "I believe so, I'm not really good with the date."

COUNSEL: "Over that period whilst you were off work how was your alcohol consumption?"

WITNESS: "That was the same."

COUNSEL: "You mean the daily consumption you just spoke of?"

WITNESS: "Yes."

107 Mr Acir confirmed again in evidence-in-chief that he was drinking every day, consuming at least 12 stubbies or cans and then three quarters of a bottle of whisky or whatever he could find, as well as a couple of bottles of water or wine.[141] Mr Acir said that he ceased drinking when he left Moreland Hall[142] in April 2006.[143]

108 When Mr Acir was tackled about his drinking in cross-examination, his account of his very modest level of pre-injury consumption of alcohol fell apart:[144]

COUNSEL: "So you say up until three weeks after the back pain, you had been drinking just on weekends at barbecues and social events. Is that how your life had been?"

WITNESS: "Yes."

COUNSEL: "You'd never drunk any more heavily than that until you had the back problem. Is that correct?"

WITNESS: "Heavily, not every day. Like if I - if I go out with the friends, like, not at our place. Like, go out to some sort of pub or some sort of, you know, men can go, I have a bit more drink than as usual, like, you know, like - - -"

COUNSEL: "Mr Acir, you told us that, in answer to your own counsel, that before the back pain caused you trouble, you would drink on weekends with friends and at barbecues. Do you remember telling us that?"

WITNESS: "Yes, that's regular. I'm talking about the regular places."

COUNSEL: "Yes?"

WITNESS: "But also I'm talking about one in a blue moon, like if I go out with a couple of friends, and then we go to a pub or somewhere, then I have more - more drink. I'm not - - -"

COUNSEL: Well why didn't you offer that to us when you told us about the drink beforehand. You just told us about - - -?

WITNESS: "Nobody - nobody asked me. Everybody asking me what's a regular drink, a regular drink and I'm talking about the regular drink."

109 Mr Acir then gave extraordinarily confusing and conflicting evidence about drinking during the week at hotels in the Brunswick and Coburg area:[145]

COUNSEL: "In 1988 onwards you drank regularly at the Post Office Hotel in Brunswick didn't you?"

WITNESS: "1988?"

COUNSEL: "Yes, in that and the following years you were regularly drinking there weren't you?"

WITNESS: "No."

COUNSEL: "You know the Post Office Hotel in Brunswick don't you?"

WITNESS: "Yes."

COUNSEL: "And you've been there drinking haven't you?"

WITNESS: "No."

COUNSEL: Do you say you've never consumed any alcohol at that hotel?"

WITNESS: "I did drink a couple of times in that hotel, but that hotel doesn't call - what do we call the name on it - the Moreland Hotel is not a Post Office Hotel or anything."

Then shortly afterwards:

COUNSEL: "Those occasions when you drank there were during the week weren't they?"

WITNESS: "Maybe and I say yes."

110 Having accepted that he would go to hotels "sometimes" during the week, Mr Acir gave the following answers to counsel:[146]

COUNSEL: "But sometimes during the week you would get drunk, is that correct?"

WITNESS: "Depends what you call for drunk. I mean, if you had a few - four - three or four beers, if you think that person is drunk, I accept that. If you had a couple of beers and then you just normal - a little bit of tipsy, then I don't call a drunk person, I mean - - -"

COUNSEL: "And you're quite confident that your drinking was limited to three or four beers on these occasions at the hotels, is that right?"

WITNESS: "Mainly, yes."

111 I regarded Mr Acir's evidence as to his consumption of alcohol prior to the January accident and his rapid uptake of alcohol after the January accident as being totally unreliable. On its own, I would have had grave reservations, given the shifting sands of his evidence. In addition, there are other matters which result in my rejection of his evidence as to his level of consumption of alcohol either prior or subsequent to the accident. They are as follows.

112 First, the two convictions for being drunk in a public place, namely in September of 1990 at the Preston Magistrates' Court and July of 1993 at the Broadmeadows Magistrates' Court. Whilst I accept that one needs to be careful before drawing too powerful an inference from these two separate convictions, it is Mr Acir's direct evidence concerning those matters that affects his reliability. Mr Acir asserts that he was not drunk on either occasion, but "had a drink".[147] On the second occasion in 1993, he was arrested because, he says, he would not provide police with identification.[148] He could not tell me what day of the week these events occurred, nor where he had been prior to the events occurring. He could not say what he had been drinking or where he had been drinking.[149] I found these answers totally unconvincing. Being arrested and brought before a Magistrates' Court is not something which can be forgotten easily, and one would have thought he would have at least some idea as to the circumstances which brought him to the attention of the police.

113 Second, Mr Acir has, on several occasions, given very different accounts of his drinking habits in out of Court statements to those involved in his treatment.

114 Ms Dianne Kanaan, a counsellor, was involved in Mr Acir's treatment at Moreland Hall in April 2006. Ms Kanaan interviewed Mr Acir on 4 April and recorded the answers given by him in a "Module 1: Assessment Form".[150] Ms Kanaan noted Mr Acir's average daily alcohol use as 12 to 18 cans of beer daily during a period of "six to seven years". Under the heading "Pattern of use" she recorded:

"Alcohol - 10 year history of use, past 6 to 7 years use has increased (re: personal and financial stressors).

Currently ingesting 12 to 18 cans of beer daily. Commencing use 1.30pm (after work only)."

Ms Kanaan also recorded a history of type 2 diabetes and a back injury "one and a half years ago work injury currently on WorkCover. Chronic pain reported".[151]

115 In her evidence, Ms Kanaan made it clear that the information recorded came from Mr Acir[152] and that his history of alcohol consumption at a rate of 12 to 18 cans was, on his account to her, for a period of six to seven years,[153] preceding the interview. Mr Acir denied giving Ms Kanaan that history.[154] I reject his evidence as it is consistent with his determination not to admit any matter that might affect his case. More importantly, Ms Kanaan made a contemporaneous note and affirmed the contents of that note in evidence-in-chief. There is no reason to disbelieve her.

116 Dr Testro, a consultant gastroenterologist at the Austin Hospital Gastroenterology Clinic, saw Mr Acir on 3 December 2007. He obtained the following history:

"He certainly had some heavy past alcohol abuse. He began drinking at the age of 20 and drank heavily up until approximately one year ago, at which stage he became aware of some liver dysfunction. At that stage he was drinking every day and was intoxicated on a daily basis. He has now had no alcohol for one year."[155]

117 In my view, these admissions are important. It is patently in Mr Acir's interests, given the way in which the case is now cast, to minimise his consumption of alcohol prior to the January accident and maximise it thereafter. Any statement made by him as to his alcohol consumption in a non-litigious context is, I think, significant.

118 Third, Mr Acir was an unreliable witness in relation to another aspect of his evidence. Frosster adduced evidence of a car journey made by Mr Acir from Melbourne to Mildura after he had worked a part-time shift on Friday 5 August 2006. Video of parts of the trip were shown[156] and Mr Acir accepted that he was depicted in the video. Frosster also called Mr Caligari, the inquiry agent, who conducted the surveillance on that day. Mr Acir swore that "The only time that I went to Mildura it was with my son",[157] and on that trip he and his son shared the driving.[158] He said that he had to take over the driving when it became dark.[159] However, the video and the evidence of Mr Caligari paints a distinctly different picture. Mr Acir, according to Mr Caligari,[160] drove by himself to Mildura and stopped voluntarily on three occasions, shortly after the turn-off to Mildura just south of Bendigo, then at a roadhouse at Charlton. Mr Caligari subsequently observed Mr Acir's vehicle to be apprehended by the police south of Ouyen; Mr Acir agreed that he was "caught" travelling at a speed in excess of 130 kilometres per hour.[161] He then stopped, again, north of Ouyen and drove on to Mildura. Mr Caligari's evidence that Mr Acir travelled alone is confirmed by the video, which showed Mr Acir taking a break at the roadhouse at Charlton and then getting into his vehicle alone. Mr Acir consumed a meal in the open, and one would have thought that if his son was with him, he would have been seen on the video. I accept Mr Caligari's evidence that on 5 August Mr Acir, after finishing work, travelled by himself for just over six hours to Mildura. In fact, it is corroborated by the evidence of Mr Acir's son, Bercil, who also contradicted Mr Acir's version. He said he had gone to Mildura with his father in April, not August.[162] Mr Acir's assertion that his son was with him in the vehicle on this trip to Mildura, was, in my view, false. I infer that he provided this account so as to minimise the criticism that could be mounted of him in engaging in such a lengthy journey with a significant injury to his back. There is one other aspect of the video that is somewhat relevant to credit. After watching the 5 August video of Mr Acir's activities at the service station prior to the Mildura trip, Dr Munir noted inconsistency with his presentation at the surgery.[163]

119 Fourth, there were inconsistencies in relation to the time at which Mr Acir said that he ceased his consumption of alcohol. He swore that he did not drink alcohol after attending Moreland Hall in April 2006.[164] However, his wife said that when she returned home in November 2006 after their separation, he was still drinking "constantly"[165] and his son, Bercil, said that he was still drinking "heavily" at that time.[166] When he saw Dr Testro in December 2007, he told him that he had not drunk alcohol for one year.[167]

120 Finally, I reject the submission made on Mr Acir's behalf that, owing to his liver condition, his memory had been deleteriously affected. This submission relied upon the evidence of Dr Wall as to the effects of cirrhosis of the liver.[168] No evidence was led from his treating general practitioner or gastroenterologist as to any specific memory defect that could be linked to his liver condition. It can readily be inferred, I think, that if there was such an association, then such evidence would have been led, particularly in the light of the attack on Mr Acir's credit in cross-examination.

121 Therefore, I have reached the conclusion that Mr Acir's account of his drinking as opened by his counsel and provided by him in evidence-in-chief is, to put it kindly, revisionist and cannot be relied on.

122 Even though I have rejected Mr Acir's evidence as to his drinking habits, it does not mean, per force, that his account of his changed drinking history is not established. It is necessary to look at the other evidence led on his behalf to see whether it is sufficiently persuasive to establish, on the balance of probabilities, the factual scenario contended by Mr Acir.

123 The only evidence which could corroborate his account of his drinking habits was given by his relatives, his estranged wife and his son. Mrs Acir gave evidence in general terms supportive of Mr Acir's version, namely, drinking a six pack[169] or so on the weekend at social events prior to the accident "he did used to drink casually"[170] and thereafter within a short period of time, regular consumption of excessive amounts of alcohol, a slab of beer a day.[171] Her evidence must be treated carefully. Mrs Acir knew nothing of Mr Acir's attendance at hotels, which he admitted to, and she appeared to treat his two drunk in a public place convictions as something that went hand in glove with social drinking. Mr Acir's counsel placed reliance on the marriage disintegration in March 2006 as a result of Mr Acir threatening his wife and her subsequent taking out an intervention order. This, it seems to me, is equally as consistent with a lengthy history of alcohol consumption as it is with a short term history.

124 Mr Acir's son, Bercil, is now 21 years of age and lives with his father and mother. He told me that, prior to the workplace injuries, his father was "just a casual drinker, I guess, just here and there", and that he would drink at "barbies, you know, just family events".[172] Bercil Acir also gave evidence that after the back injury, his father started drinking quite heavily within weeks, to the extent of drinking a slab of beer (24 cans) in a session, as well as Johnnie Walker whisky on occasions.[173] Bercil Acir accepted in cross-examination that he did not know whether his father was drinking during the week at hotels before the January accident.[174]

125 Overall, I gained very little assistance from the evidence of either Mrs Acir or her son. Mrs Acir did not, I think, give frank evidence about her husband's drinking prior to his accident. It is inconceivable that she was not aware that he was drinking more than just socially at weekend barbecues, particularly if she was aware, as she said she was, of his two convictions. Bercil Acir's evidence was also of dubious quality, but I think on his account it is simply from lack of knowledge as a young boy and a teenager in the years leading up to his father's injury. He could not be expected to know his father's drinking habits in any detail.

126 I do not accept the contention made on behalf of Mr Acir that his work record counts against a high consumption of alcohol prior to his back injury. As I understand his evidence, between 1997 and April 2004, he did not work full-time. For five years he was unemployed, and for the two years between 2002 and 2004, he worked part-time. Whilst it is true that he worked for six months full-time for Frosster, he was then off work for nine weeks and then had only returned to Frosster for two to three weeks before he suffered the back injury. That work history does not, in my view, demonstrate an inconsistency with a high consumption of alcohol. That is particularly so given that the work at Frosster involved working on night shift, usually finishing at about 10.00am.

127 Ultimately, the person who best knows his true level of consumption of alcohol prior to the January accident is Mr Acir himself. The other evidence must be examined in that context. I am not persuaded that the evidence of either of his relatives corroborates either his asserted pre-accident low alcohol intake or his post-accident "binge" drinking. It is impossible, in my view, to have any confidence in his estimate as to his increase in drinking after the accident (as both these witnesses depose to) when their evidence, and, indeed, the evidence as a whole, is totally unpersuasive as to his level of alcohol consumption prior to the January accident.

128 Moreover, there is a perfectly acceptable explanation for the development of his cirrhosis of the liver absent an upsurge in drinking after the back injury, namely, his consumption over a relatively lengthy period of time of excessive amounts of alcohol[175] combined with his underlying diabetes and his fatty liver or NASH.

129 In summary, when the evidence is reviewed as a whole, I am not persuaded that there was any increase in Mr Acir's consumption of alcohol after the January accident. I reject his account of his level of consumption of alcohol post-accident which both Drs Gow and Wall relied upon. I am therefore not satisfied that his liver condition is related to the effects of the back injury. I should add that there was no evidence to suggest that the shoulder condition played any part in his increase in drinking - as his case was that it was the back condition that triggered his response.

130 It follows that the most likely cause of his cirrhosis of the liver was either his drinking of alcohol throughout his life, his fatty liver condition or a combination of both. I am not satisfied that the condition is related to his workplace injuries, back or shoulder.

131 Mr Acir's case is that he has sustained a significant psychiatric reaction as a result of the injury to his back and cirrhosis of the liver. As I have concluded that his liver condition is unrelated to his back injury, it is necessary to endeavour to identify, as best one can, any employment-related psychiatric condition attributable solely to his back injury or the shoulder injury which I have, subsequently, concluded is causally related to the back injury.

132 Ms Semra Durmaz, his treating psychologist, has provided several reports.[176] Ms Durmaz first saw Mr Acir on 3 January 2006 and has managed his psychological state since that time. Mr Acir has been seen by her on many occasions in a depressed and anxious state. He has reported problems with his arm and shoulder, as well as his back. Ms Durmaz identified the following symptoms:

• Depressed mood most of the day, including suicidal thoughts.

• Markedly diminished interest in pleasure in almost all activities.

• Diminished ability to concentrate and make decisions.

On 12 April 2009, Ms Durmaz concluded Mr Acir was "suffering from major depressive disorder which, in my opinion, resulted directly from the injury and the treatment he had received from his workplace. No pre-existing emotional problems were identified which could explain the presence of the disorder as identified in the assessment".

133 I pause here to remark upon the extraordinary nature of this opinion. Notwithstanding that Ms Durmaz was aware that Mr Acir had lost a significant amount of weight, including muscle tone; attended Moreland Hall rehabilitation centre; had advanced cirrhosis caused by excess alcohol intake; developed excessive abdominal fluid which had disturbed him a great deal; and was awaiting a liver transplant, she attributed the major depressive disorder to the injuries sustained in the workplace (back and shoulder).

134 I assume that when Ms Durmaz, in her report of 12 April 2009 referred to Mr Acir as "struggling with the severe changes in his life and his quality of life has diminished immensely", she was aware that his potentially terminal liver disease and the prospect of a liver transplant were playing a part in his condition. To ignore these issues altogether in her conclusion (as she does) is, to put it mildly, extraordinary and inexplicable, and I put her opinion to one side.

135 Nor was I particularly impressed with the evidence of Dr Kwong.[177] Dr Kwong treated Mr Acir in 2007 and concluded that Mr Acir had a major depressive illness related solely to his work injury. She diagnosed a moderately severe depressive illness: "It is my opinion that Mr Acir is suffering from an adjustment disorder with suppressed mood (DSMIV309.00) as a result of his chronic pain and perceived abuse from his employer." In fact, she had not been told by Mr Acir of any problem with his liver.[178] Nowhere in her report is there a reference to his cirrhosis of the liver, notwithstanding that the severity of the disease had been diagnosed by this time and he was undergoing treatment at the Austin Hospital. Her opinion that when she last saw him in June of 2007 he was, because of the work injury, incapable of working into the foreseeable future, needs to be examined in this light.[179] I think her evidence is of little assistance.

136 Dr Michael Epstein reviewed Mr Acir recently and provided a medico-legal opinion. He had a full history concerning Mr Acir's cirrhotic liver condition. He diagnosed a major depressive disorder related to his work injuries and aggravated by his end stage liver failure. He concluded that Mr Acir's concern about the terminal liver condition, the prospective transplant and its complications were at least equal and perhaps of greater significance in his psychological condition than that of his concerns about his back and shoulder impairment. In his evidence, he said that the diagnosis of the terminal liver disease, the gall bladder surgery and the loss of weight played a real part in his psychiatric condition, and he agreed that it was "a very significant factor".[180] He originally attributed 30% of his psychological condition to his back injury and 70% to his other issues.[181] In the course of cross-examination, he revised that to 50%-50%.[182] Whichever apportionment is chosen, his is the most realistic assessment of the causes of Mr Acir's psychological condition.

137 Contrary to Frosster's submission, there is sufficient evidence to relate part of Mr Acir's psychological impairment to his work injuries, even allowing for his unreliability as an historian. It is quite natural, I think, for a man faced with chronic back pain aggravated by his shoulder condition to become anxious and depressed as Mr Acir says he has.

138 I conclude that there was a level of anxiety, stress and depression consequent upon the back injury which was compounded by the shoulder injury. Whether it is properly categorised as a major adjustment disorder or depressive condition is simply a question of labelling: what is clear is that the mechanical problems with the back and the shoulder have caused moderate psychological sequelae. However, I also think both as a matter of commonsense and relying upon Dr Epstein's evidence, that the primary problem over the past three years is that related to the liver condition, its potential life-threatening consequences and the drastic treatment necessary to alleviate his condition.

139 Before I turn to an analysis of the serious injury provisions of the Act and the questions of damages and liability, I should set out in summary my findings to date:

(a) Mr Acir sustained an injury to his lower back on 19 January 2005 in the course of his employment with Frosster. That injury comprised of damage to the L5-S1 disc in the form of a tear of the annulus as described by Mr Haw.

(b) That injury has continued to affect Mr Acir in his day-to-day activities and in his ability to engage in work. He is incapable of returning to work as a driver and undertaking manual labouring activities.

(c) The injury to the right shoulder, which manifested itself in June 2006, is related to his employment on light duties. The evidence given by Mr Schofield and Mr Haw and the actual nature of the work satisfies me that the right shoulder disability has a relationship to his employment.

(d) The back injury and the shoulder injury have produced psychological consequences for Mr Acir of a moderate degree. However, the predominant cause of any current psychological disability is the liver condition and its effects.

(e) Mr Acir's cirrhosis of the liver is not related to his back injury or, for that matter, his right shoulder injury.

Has Mr Acir suffered serious injury within the meaning of s 134AB(38)?

140 Section 134AB(19)(a) of the Act requires, as a precondition to the institution of common law proceedings, that a worker such as Mr Acir[183] demonstrate that he or she has sustained a serious injury within the meaning of the Act. The provisions of s 134AB(38) set out a scheme for determining what constitutes a serious injury. The provisions have attracted considerable judicial attention since their introduction in 1998.[184] The scheme requires a step-by-step analysis of the impairment or loss of use produced by the asserted injury.

(a) The back injury constitutes a serious injury, being a "permanent serious impairment or loss of a body function".[185]

(b) The shoulder condition amounts to a separate serious injury or, alternatively is a consequence of the back injury and is therefore to be taken into account in assessing the impairment produced by that injury.

(c) His psychological condition amounts to a serious injury, being a "permanent severe mental or permanent severe behavioural disturbance or disorder".[186]

142 It was accepted by counsel for both Mr Acir and Frosster that if Mr Acir demonstrated that the back injury was a serious injury within the meaning of s 134AB of the Act, then it was not necessary to consider any mental impairment. It was also accepted that if the shoulder injury was to be regarded as causally related to the back injury,[187] then it was not necessary to analyse whether it, separately was a serious injury within the meaning of s 134AB(38).

143 The starting point of the serious injury exercise is the identification of compensable injury - that is, an injury linked or related to employment after 20 October 1999.[188] In this case, it was conceded by Frosster that the back injury was a compensable injury. The focus then shifts to the impairment or loss caused by the injury and the consequences which flow from that impairment.

144 Where, such as in this case, a worker makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition - s 134AB(37)) a Court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based.[189] So, as a starting point, a Court is required as best it can, in this artificial exercise, to distinguish between consequences which are physically based and those which have a psychological or psychiatric basis; such consequences are to be ignored for the purpose of a serious injury under (a) and to be considered as part of any application under (c) of the "serious injury" definition within s 134AB(37).[190]

145 Where a worker alleges a claim based on a physical impairment, the Act requires a Court to not only put to one side any consequential psychiatric or psychological impairment, but to also examine the consequences of a physical impairment in the separate contexts of

146 The provisions of s 134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and/or loss of earning capacity;[191] the sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[192]

147 Ultimately, a worker may be limited to suing for damages for pain and suffering if serious injury under that head only can be established. On the other hand, if a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages (i.e. both for pain and suffering and loss of earning capacity).[193]

148 It was accepted by the parties that it was appropriate, in the context of this case, to look firstly at the various tests for loss of earning capacity which must be satisfied by Mr Acir.

149 Section 134AB(38)(b) requires the term "serious":

"to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function ... with respect to

(i) pain and suffering; or

(ii) loss of earning capacity - when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively."

Section 134AB(38)(c) then provides:

"An impairment or a loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable."

150 Different forms of narrative type serious injury provisions have been in existence for over 20 years.[194] The Court of Appeal has, on many occasions, emphasised that the task of a judge in making a serious injury determination involves a "fact, degree and value judgment".[195]

151 In determining whether the narrative test is met, a Court is required to evaluate the consequences of the impairment, not the injury itself. The Court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the Court must be satisfied that the consequences are "more than significant or marked".[196]

152 Mr Acir has sustained a significant injury to his lower back. I have set out the evidence in that regard at [43] to [63]. The consequences of that impairment are that he can no longer return to his chosen employment or undertake most aspects of moderate to heavy work. Mr Acir is particularly limited in the work he can undertake. Given his background, education and skill, the disruption to his working life, caused by the back injury alone, is, on any view, significant.

153 For such an impairment to be permanent, [197] it must continue to affect Mr Acir into the foreseeable future. The evidence of both Mr Haw and Mr Schofield (supported by Mr O'Brien and Mr Jones) satisfies me that the back disability is permanent and will therefore continue to afflict Mr Acir into the foreseeable future.

154 I am satisfied that it is fair to describe the consequences of Mr Acir's loss of earning capacity as being more than significant or marked and properly regarded as serious, when judged by comparison with other cases. Mr Acir therefore satisfies the narrative test.

155 As I have concluded that, applying the common law test of causation, the shoulder injury is causally related to the back injury, [198] it is not necessary for me to deal with the question of the shoulder injury as a separate and distinct "serious injury".

The statutory tests: Loss of earning capacity

156 As I have said, satisfaction of the narrative test overcomes the first hurdle for a worker. It is then necessary for Mr Acir to satisfy the separate tests laid down by sub-ss 134AB(38)(e), (f) and (g). Under (e) and (f) he must also establish that:

(a) at the date of the hearing, he has a loss of earning capacity of 40% or more calculated by reference to the differential between what are referred to as without injury earnings and after injury earnings - s 134AB(38)(e)(i);[199] and

(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently - s 134AB(38)(e)(ii).

157 In terms of timing, the comparison between without injury earnings and after injury earnings is not necessarily consistent. The after-injury earnings are calculated as at the date of trial (s 134AB(38)(e)), whilst the without-injury earnings are calculated by reference to the six year period specified in s 134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it will not necessarily be an equivalent, or parallel, comparison.

158 There was no issue that Mr Acir's cirrhosis of the liver would have precluded him from working by January 2008 (the end of the three year window period). Counsel for Frosster argued that Mr Acir would have ceased working by February 2006 (the time of discovery of the abnormal liver condition) while counsel for Mr Acir submitted that he would have ceased work by October 2007 when he had his gall bladder removed. Therefore, it was not in issue that for a portion of the post-injury three year window, Mr Acir was incapable of earning income due to his cirrhotic liver.

159 However, the evidence also discloses that outside the three year window, Mr Acir has been placed on the liver transplant list. There are degrees of probability and possibility of Mr Acir receiving a liver transplant and, but for the orthopaedic injuries, being able to return to work within approximately six months.[200]

160 In Barwon Spinners[201] and Hayhill v Hodge[202] the Court of Appeal described the task of identifying the figure for without injury earnings as being "not inconsiderable" and "very difficult". With respect to their Honours, these observations may understate the problems associated with the determination of this issue in this case.

161 The relevant part of s 134AB(38)(f) in terms of the calculation of without injury earnings is as follows:

"A worker's loss of earning capacity is to be measured by comparing [AFTER INJURY EARNINGS] with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred."

162 In the Second Reading Speech relevant to this provision,[203] the Minister said as follows:

"The loss of earning capacity is to be measured by firstly comparing the worker's income from personal exertion or capacity to earn income on a before-injury and after-injury basis. The focus time period for determining the capacity to earn income on a before-injury basis is limited to three years before the injury and three years after the injury in order to remove open-ended inquiries which may have varying degrees of speculative judgment. The examination is one which is to fairly reflect the worker's earning capacity had the injury not occurred.

Consistent with that understanding, in the three-year period prior to the injury, the court may have regard to the vagaries of the worker's pre-injury employment history and the impact of the worker's social, health and other factors on the capacity to work in that period.

In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred. The comparison is to be made on an examination of pre and post-injury gross income rather than net income. This will enable the analysis to have a simple basis of calculation and to avoid dispute as to a net income figure."

163 In Barwon Spinners,[204] the Court said that:

"The latter, without-injury earnings, are to (sic) calculated by reference to 'that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity', had there been no injury. The Court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out 'as most fairly reflects the worker's earning capacity'. As it stands, that task is not inconsiderable."

164 Subsequently, in Hayhill v Hodge, [205] the Court of Appeal said:

"Essentially, para (e)(i) requires the worker to demonstrate, as a condition precedent to obtaining leave, that, at the date of the hearing of the application, he or she 'had a loss of earning capacity of 40 per cent or more' measured 'as set out in (f).' That measurement of the claimed loss of earning capacity, as prescribed by para (f), necessitates a comparison of two matters:

(a) The income the worker is earning or is capable of earning in suitable employment at the date of the hearing ('after injury earnings'); and

(b) the income that the worker was earning or was capable of earning 'during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred'.

In both cases the income is limited to gross income from personal exertion and is to be annualized."[206]

165 Section 134AB(38)(f) of the Act requires the Court to examine a variety of scenarios to determine which most fairly reflects the worker's earning capacity. Only (a) below is based on proof of historical facts, while (b) to (d) require findings as to hypothetical situations. In the period of three years before the injury the Court considers:

(a) The gross income that the worker was earning during the period of three years before and after the injury - proved on the facts.

(b) The gross income that the worker was capable of earning from personal exertion[207] - a past hypothetical.

(c) The gross income the worker would have earned from personal exertion - a future hypothetical.

(d) The gross income the worker would have been capable of earning from personal exertion - a future hypothetical.

The Court must then determine which of these scenarios (if more than one is applicable on the evidence) most fairly reflects the earning capacity of the worker without injury.

166 In most cases, the inquiry will be relatively simple; the wages at time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion. However, at times, scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities or capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (e.g., if he or she was not working full-time at the time of the injury).

167 The essence, then, of the inquiry is to fix a figure which "most fairly" reflects the earning capacity of the injured worker, absent the subject injury. As I have said, usually the inquiry in determining the figure will be restricted to questions of promotion, increase in salary or loss of employment opportunity - all being said to be relevant to determining the figure that most fairly reflects the worker's earning capacity without injury. This case, as I have noted, starkly raises a point which does not appear to have been considered in the past:[208] the happening of an unrelated supervening event which, on one view, extinguishes the worker's earning capacity and on any view would have caused him to cease working in the three year post-injury period.

168 Indeed, the submission put on behalf of Frosster, is that given Mr Acir's condition and the inevitability that it would have struck him down during the three year window period, the most fair reflection of his earning capacity is nil, that being either the figure he would have been capable of earning or would have earned from February 2006. It was said that Mr Acir's earning capacity was extinguished from that time (being the time of diagnosis). Even if the later date of October 2007 was chosen, Frosster's arguments remained tenable - extinguishment of earning capacity within the relevant period. It follows that Mr Acir could not satisfy the 40% comparison against after injury earnings if this submission was sustained.

169 Mr Acir contends that questions of non-work related supervening events are not to be considered in the course of a s 134AB(38)(f) determination; rather, the role of such events is confined to the assessment of damages in the common law proceeding. It was said that the application of the sub-section was confined to events which occurred prior to the injury and were relevant to without injury earning capacity and those events that were reasonably foreseeable post injury within the three year period.

170 I have reached the conclusion that a Court should not, for the purpose of fixing a representative figure for "earning capacity" under s 134AB(38)(f), take into account the supervening event of Mr Acir's cirrhotic liver condition for the following reasons.

171 First, and importantly, s 134AB(38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.

172 Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages. Rather, it compares the worker's earning capacity, as defined,[209] with the statutory formula for the assessment of after injury earnings (considered subsequently).

173 Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It, I think, is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity - which is a damages issue, but, rather, to focus on earning capacity in a limited context.

174 Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury. Rather, it requires the Court to fix a figure which "most fairly reflects the worker's earning capacity" without injury.

175 Fifth, the legislature chose to use the expression "earning capacity". Traditionally, this expression has been used in the context of loss of earning capacity where a determination is made of the loss of the ability of the injured plaintiff to earn money or money's worth by looking at factors relating to an individual's body and mind and external factors such as the availability of work.[210] It follows, I think, in the context of s 134AB(38)(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker's ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. On this analysis a Court would be entitled to look at a worsening of a pre-injury condition affecting a worker's capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial. In this case Mr Acir's condition was asymptomatic until at least February 2006 when the liver function tests, ordered by Dr Munir, revealed the abnormality.

176 Sixth, as I see it, the primary purpose of the without injury provisions of the sub-section is to determine earning capacity as at the date of injury but also to permit variations where that inquiry does not allow an accurate reflection of the earning capacity of the worker. If this be the true purpose, it would militate against consideration of independent supervening events.

177 Seventh, if Frosster's argument is accepted, the arbitrary nature of the exercise becomes self-evident. A worker could be hit by a bus and be placed in a vegetative state one day before the expiry of the three year post-injury period and, on Frosster's argument, that would eliminate his work capacity, whilst, if it occurred one day after the three year period, it would be disregarded. Moreover, as this case demonstrates, a worker may have a nil capacity due to the supervening event during the three year window period but his or her condition may be ameliorated by medical treatment or may naturally improve after the period ceases. Such capricious results could not, I think, have been intended by the legislature.

178 Finally, there is no irremediable injustice to Frosster; it is not shut out from running the argument concerning the supervening event in the damages trial. Quite the opposite, it will be able to assert (as it does) that, in determining loss of earning capacity, the supervening event may, on one view, have eliminated Mr Acir's earning capacity.

179 In my view, Mr Acir's earnings at the time of the January accident most fairly reflect his earning capacity as required by s 134AB(38)(f). This was agreed to be $959 gross per week or annualised, as the section requires, $49,868.

"the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date [being the date of the hearing of the application before the court]".[211]

181 The worker must demonstrate that:[212]

(a) his or her gross earnings at the date of the hearing (on an annualised basis) are less than 60% of the comparative without-injury earnings figure; and

(b) the gross income which the worker is capable of earning in suitable employment (on an annualised basis), as at the date of the hearing, is less than 60% of the comparative without injury earnings figure.

182 The first inquiry is simply to determine what the worker is earning at the time of the hearing. If, on an annualised basis, that figure is greater than 60% of the comparative without-injury earnings figure, the worker fails to satisfy the test set out in paragraph (e)(i) of s 134AB(38). This would be the end of the inquiry. In this case, however, the answer is nil.

183 The second enquiry concerns the worker's putative earnings in suitable employment.

184 Suitable employment is defined in s 5 of the Act, which reads as follows:

"... employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following -

(a) the nature of the worker's incapacity and pre-injury employment;

(b) the worker's age, education, skills and work experience;

(c) the worker's place of residence;

(d) the details given in medical information including the medical certificate supplied by the worker;

(e) the worker's return to work plan, if any;

(f) if any occupational rehabilitation services are being provided to or for the worker;

..."

"...On the other hand, the mere reference to 'capacity for any employment' does not, on its face, suggest that Parliament was concerned with an economic capacity rather than a physical or mental capacity. For instance, in para (g) what is relevant, after considering rehabilitation or retraining or the possibility of rehabilitation or training, is -

'... a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion ...'.

In our opinion, the expression "if exercised" means "if exercised in employment". Parliament is looking here to a physical capacity for work which, if exercised in employment, would bring about the result that the worker was earning more than the limit relevant to serious injury. It is not concerned with whether employment will or will not be obtained: it is concerned rather with the economic yield of such work, if the capacity for that work was in fact exercised in employment."[213]

"The concept of 'suitable employment' will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to 'work for which the worker is currently suited'. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker's incapacity and, of course, pre-injury employment.[214]

186 In Smorgon Steel Tube Mills Pty Ltd v Majkic,[215] the Court of Appeal said of s 5 of the Act and the definition of suitable employment:

"The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment[216], and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker's ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker's special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s 134AB(38)(f). The definition does not require the second step to be taken."

187 The injury to Mr Acir's back has significantly limited his ability to work. Notwithstanding that Mr Acir has achieved a proficiency in English, his main asset, in terms of earning capacity, was his ability to carry out moderate to heavy tasks. He had only worked in taxi driving and manual employment in the past. His job as a driver on the milk run involved constant lifting of crates weighing 20 kilograms or more, albeit he was provided with a trolley. Mr Haw, as I have said, regards him as being significantly disabled, as do Mr O'Brien and Mr Schofield. Other doctors engaged on behalf of Frosster do not disagree with the proposition that he is, effectively, excluded from work involving moderate to heavy lifting. The job that he returned to at Frosster was, as his supervisor, Mr Marangos, conceded, an artificial job, fashioned with a view to getting him back to full-time work.[217]

188 When one looks at the realities of the labour market, his background, the nature of the back injury sustained by Mr Acir and the opinions of his treating orthopaedic surgeon and the other surgeons I have referred to, I am persuaded that Mr Acir has no capacity to engage in suitable employment.

189 Finally, Mr Acir must also adduce evidence that the loss of capacity demonstrated at the time of the hearing will continue permanently: ie, it will continue into the foreseeable future. This has been established.[218]

190 The final enquiry involves the test laid down by paragraph (g) of s 134AB(38) of the Act:

"a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred."

191 The worker again carries the onus on this issue. Section 134AB(19)(b) states:

"For the purposes of subsection (16)(b) - ...

(b) for the purposes of proving a loss of earning capacity in accordance with sub-section (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability."[219]

192 Frosster did not suggest that s 134AB(38)(g) inhibited Mr Acir's application. Indeed, such a submission would have been surprising, given that Mr Acir had returned to light duties with Frosster, which ultimately came to an end with the manifestation of his shoulder condition.

193 I am satisfied that Mr Acir had a without injury earning capacity of $49,868 as calculated pursuant to s 134AB(38)(f). I am also satisfied, after taking into account the criteria laid down by that section, that he had no after injury earning capacity. It follows that Mr Acir satisfies the 40% test and has sustained a serious injury within the meaning of s 134AB.

194 Mr Acir has sustained a serious injury to his back within the meaning of s 134AB(38). Accordingly, pursuant to s 135BA(6), Mr Acir is able to recover damages.

195 The parties were agreed that if I concluded that the shoulder injury was related to the back injury[220] and it was found to be a serious injury, then it was not necessary to determine whether the shoulder injury, separately, was a serious injury.

Was Frosster negligent or in breach of its statutory duty in respect of the back injury?

196 Frosster did not dispute that it owed Mr Acir a duty of care, or that the scope of that duty was to take reasonable care in providing a safe system of work. However, it contended that the task was so straightforward and simple that it was not necessary for it to provide instructions or training to Mr Acir as to the tasks he was to perform. Frosster's argument should be rejected.

197 In McLean v Tedman,[221] the High Court, in dealing with the question of breach of duty, said:

"In deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands".

198 Subsequently, in Czatyrko v Edith Cowan University,[222] the High Court said:

"If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."

199 Mr Acir's counsel relied upon what was said by the High Court in Andar Transport Pty Ltd v Brambles Ltd.[223] In that case, the plaintiff, a director of the defendant company, was injured in the course of unloading a trolley from a truck owned by the defendant. Apart from the question of whether a duty was owed by the company to the plaintiff and its managing director (which the High Court held that it did), the Court also dealt with the obligation of an employer in a situation similar to the present case. The employer

"possessed an independent personal obligation to take reasonable steps to ensure that a safe system of work was established and maintained for its employees".[224]

200 In Andar, the High Court also said of the obligation of an employer where the tasks carried out by the employee were regular:

"[the employer] was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required [the employer] to develop, and maintain, a methodology or system which would achieve that result".[225]

201 The argument put on behalf of Frosster is similar to one that I recently addressed in Iannello v BAE Automation & Electrical Services Pty Ltd.[226] In that case, I endeavoured to make the point that it was not sufficient for an employer, in a situation where no system of work had been adopted or prescribed, to rely upon the worker's experience and then contend that such reliance discharges its duty. In effect, Frosster puts a similar argument here on the basis of the simplicity of the task and Mr Acir's six months of experience in the job. That argument must also be rejected. There was an obligation upon the employer, Frosster, to implement a system of work that would reasonably minimise the risks of injury to its workers as far as was practicable given the task at hand and its own resources.

202 Whilst I have had considerable reservations about much of the evidence given by Mr Acir, I have no reason not to accept his account of his training and induction.[227] Indeed, it was implicitly confirmed by the evidence of Mr Marangos, who said that it was not until after Mr Acir's injury that the company really considered occupational health and safety.[228]

203 Mr Marangos said that at the time of Mr Acir's injury, occupational health and safety was his responsibility. In relation to compliance with the occupational health and safety regulations, Mr Marangos stated, "we just really weren't up to scratch".[229] In fact, he said he was so busy with his own managerial job that it was "too hard to handle everything".[230] Mr Marangos accepted that apart from some basic instructions from fellow drivers who also had no training, there was no formal training or induction of new employees.[231] He agreed that Frosster essentially relied upon the commonsense of the employee.[232] In an effort to address its occupational health and safety failings, by the end of 2005 Frosster had engaged a Ms Letchumy Taylor as the occupational health and safety officer. [233]

204 I have set out at [39] and [40] the general configuration of the crates in the box. On the day of the injury, crates were stacked in rows against the front wall of the box (i.e. to the left of a worker entering the truck from the side door). Those crates were restrained by the crossbar.[234]

205 Mr Acir had, in the company of Mr Comfort, made a number of deliveries on the run. Towards the end of the run, there was a delivery at a milk bar in Union Street, Brunswick.[235] It was Mr Acir's task to fill the verbal order given by the customer.[236]

206 On this issue I accept Mr Acir's account of the manner in which he injured his back. [237] To fill the order, he had to retrieve cartons of milk from a crate (or the crate itself) on the second row of crates located to the left of the side door (i.e. to the front of the box). The crossbar was located directly in front of the first row of crates, which comprised three full crates and two empty crates (placed on top of the full crates). These crates blocked access to the crate he wished to retrieve. Mr Acir told me that he had to remove, from the front row, the two empty crates on the top of the first row and then stretch over that row and the crossbar to retrieve the full milk crate, which held six three litre units. Before he could get to it, Mr Acir removed an empty crate located above it. Then he endeavoured to retrieve the crate he required. To do so, he leant over the crossbar, which remained in place. As he leaned forwards and lifted and pulled the full crate back towards him with his right hand, he felt a click in his back.[238]

207 It was not suggested to Mr Acir that this account was implausible. No other witness contradicted it and, notwithstanding my reservations as to his credit, it seems, in general terms, to be a reasonable explanation for the injury to his back. Although he did not tell Mr Comfort the details of his injury, he made it known to him at the time that he had sustained an injury to his back.[239]

208 Mr Acir received no training or instruction on how the loads in the rear of the truck should be moved or how the loading and unloading of the truck was to be performed.[240] Although he was provided with a trolley[241] and a hook[242] to assist in the removal of crates, no instruction was given as to how to carry out the task. It is to be remembered that each crate could weigh up to 20 kilograms and that the forces involved in the lift, particularly of stretching, could be of some significance.

209 Mr Acir said that if he had been instructed in proper handling and lifting techniques, he would have adopted such practices. To some extent, as the High Court has said, such evidence is invariably given through "the prism of hindsight".[243] Nevertheless, it makes commonsense that a worker trained in a system of work would obey that system, particularly if his own health and safety depended upon it.

210 Proper training would have ensured that he was instructed in the principles of safe manual handling, which include ensuring that the lift was carried out as close to the body as practicable. I derive some assistance in reaching this conclusion from the opinion of Mr Dohrmann, the ergonomist, who identified the following steps as being relevant to the prevention of reduction of manual handling injuries:

(c) instruction and training in safe working procedures.[244]

211 Mr Dohrmann also made a series of calculation, based upon a method called NIOSH. Using these calculations, he arrived at a conclusion that I think could have been arrived at by the application of commonsense, namely, that the performance of the task by Mr Acir involved "his exposure to a risk of injury", that being the lifting and manoeuvring in a stretched position of a moderately heavy object.

212 The measures proposed by Mr Dohrmann as being sensible in the light of the risk posed to Mr Acir were as follows:

• Conducting a review or audit of manual handling work which would have identified the task as comprising a risk of strain injury with the prospect of earlier intervention.

• Training Mr Acir not so much in lifting techniques but in equipping Mr Acir to understand the risks of carrying out the type of lift which he carried out.

• Giving instructions that crates were not to be lifted one handed or across the crossbar.[245]

213 Mr Haw said that such a lift of a 20 kilogram weight would exert shear and compressive loading forces on the L5/S1 disc which he described as significant.[246]

214 I conclude that there was a foreseeable risk of injury and that a proper response by Frosster involved training and instruction on how to handle and remove the crates. It failed to do so. I am also satisfied, on the evidence of Mr Haw and, to some extent, Mr Dohrmann, in the event that such training and instruction had been given, the risk of injury would have been significantly reduced, if not eliminated.

215 I conclude, therefore, that Mr Acir has made out his case in negligence against Frosster.

The Occupational Health and Safety (Manual Handling) Regulations

216 Mr Acir further asserts that Frosster is liable, independently of negligence, for breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 ("the Regulations").[247]

217 Regulation 13(1) of those regulations provides:

"An employer must ensure that any task undertaken, or to be undertaken, by an employee involving hazardous manual handling is identified."

"If a task involving hazardous manual handling is identified in accordance with regulation 13, an employer must ensure that an assessment is made to determine whether there is any risk of a musculoskeletal disorder [musculoskeletal disorder is defined in the regulations] affecting an employee occurring as a result of that task."

"An employer must ensure that any risk [risk is a defined term] of a musculoskeletal disorder affecting an employee occurring (a) is eliminated, or (b) if it is not practicable to eliminate the risk, is reduced so far as is practicable."

220 The Regulations are not engaged unless the particular activity undertaken by the worker is characterised as "hazardous manual handling". Regulation 13(2) provides:

"(a) Manual handling having any of the following characteristics -

(i) repetitive or sustained application of force;

(ii) repetitive or sustained awkward posture;

(iii) repetitive or sustained movement;

(iv) application of high force;

(v) exposure to sustained vibration;"

221 Frosster did not contend that the Regulations did not apply to it, rather, counsel said that the Regulations did not create a statutory duty. I do not accept this argument. Section 28 of the Occupational Health & Safety Act 1985 dealt with questions of civil liability. It provided:

"Nothing in this part shall be construed as -

(a) conferring a right of action in any civil proceedings in respect of any contravention whether by act or omission, of any provision of this part;

...

(c) affecting the extent (if any) to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by the regulations."

222 The clear intention of Parliament was that the general statutory duties imposed under Part 3 of the Act did not confer a civil right of action, but that a breach of a regulation made under the Act was to be treated differently. If a private right was established, then s 28(c) preserved a worker's right to pursue a claim for breach of that statutory duty.

223 In McCallion v U.R. Machinery Sales,[248] Harper J concluded that the Regulations (then in a different form) conferred a private right of action upon a worker, relying on the decision in Connor v S.P. Bray Ltd.[249] His Honour said:

"It is settled law that, in the absence of a contrary legislative intention, a duty imposed by statute (including a statutory rule) to take measures for the safety of others involves a correlative private right. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on. ... The Occupational Health and Safety (Manual Handling) Regulations imposed a duty to take measures for the safety of persons in the position of Mr McCallion. He therefore has a private right to damages for injuries suffered by him as a result of the breach of the Regulations."[250]

224 In jury trials both in this Court and in the County Court, it has been accepted that the Regulations create such a duty. In Martin v Henderson Industries Pty Ltd[251] at first instance, the County Court judge charged the jury on the basis that the Regulations created such a duty. No issue was raised on the appeal as to the correctness of that aspect of the charge. Indeed, the challenge on appeal by the plaintiff was as to the adequacy of the charge on that issue, not the application of the Regulations. More recently in this Court, in Papadopoulos v MC Labour Hire Services Pty Ltd (No. 1),[252] the jury was charged by Beach J on the basis that the Regulations conferred a private right and correlative duty, the only argument put by the employer being directed to its applicability, not the existence of the duty.[253]

225 I respectfully agree with Harper J in concluding that the Regulations create a statutory duty and adopt his Honour's reasoning. There is a long line of authority of statutory instruments in occupational health and safety circumstances being construed as conferring a private right upon an injured worker.[254] It is the relationship between the employer and employee and the clear Parliamentary intention to promote occupational health and safety that underpins those decisions.

226 The repeated manoeuvring, lifting and carrying of crates of milk, albeit assisted by hooks and trolleys, involved, in my view, characteristics of repetitive or sustained awkward posture and repetitive or sustained movement. As such, it constitutes "hazardous manual handling".

227 Once the task is identified as falling within the Regulations, r 13(3), an employer is obliged to undertake a risk assessment, r 14. The critical part of the Regulations insofar as an employer is concerned is that contained in r 15, which requires an employer to ensure that any risk of a musculoskeletal disorder affecting an employee occurring "(a) is eliminated; or (b) if it is not practicable to eliminate the risk, is reduced so far as is practicable". The employer is then directed to consider practicable alternatives for altering the workplace, the systems of work and to consider the use of mechanical aids, in addition to training or instruction in manual handling techniques, r 15(2).[255]

228 Given the conclusions I have reached in relation to negligence, it is clear, I think, that Frosster breached the duty imposed upon it under the Regulations. It was implicit from the answers given by Mr Marangos, relating to the Occupational Health & Safety Manual Handling Regulations, that no assessment of the risks posed by Mr Acir's tasks were carried out by Frosster.[256] Notwithstanding that those particular Regulations had been in force for over five years, it failed to carry out any form of risk assessment of the work undertaken by its employees. If Frosster had carried out such an assessment, it would have been alerted to the risks posed by the manoeuvring of the crates in the rear of the box.[257] Frosster should have appreciated the need to devise a system of work responsive to those risks; including instruction and training of workers on the most practicable and safe manner in which to handle crates, particularly when excessive stretching with lifting was required.

229 It can be assumed that if trained in specific techniques to avoid putting pressure on his back, Mr Acir would have complied and the risk of injury would have been significantly reduced if not eliminated. Similarly, if instructed as to the proper way to move the crates, it can be assumed he would have complied. The failure to comply with the Regulations was a cause of the injury sustained by Mr Acir to his back.

230 Section 26(1) of the Wrongs Act 1958 (Vic) provides:

"If a person (a claimant) suffers damage as the result partly of a claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons -

(a) ...

(b) the damages recoverable in respect of the wrong must be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".

231 Frosster bears the burden of proving, on the balance of probabilities, that Mr Acir has been guilty of contributory negligence.[258]

232 In Commissioner of Railways v Ruprecht,[259] the High Court emphasised the necessity to examine the entire circumstances surrounding the injury to the worker, and particularly the nature of work in which the employee was engaged. Gibbs J said that

"In deciding whether the [employee] was guilty of contributory negligence, one may consider as part of all the circumstances such things as inattention born of familiarity and repetition and that man's preoccupation with the matter in hand".[260]

233 The decision of the High Court (Gibbs CJ, Mason, Brennan and Deane JJ) in Podrebersek v Australian Iron & Steel Pty Ltd[261] is important in this regard:

"It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence ...[262]

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." (Citations omitted).[263]

234 In the event that the Court is persuaded that there has been contributory negligence on the part of the plaintiff, then the Act requires a reduction "to such extent as the Court thinks just and equitable having regard to the claimant's share in responsibility for the damage". As Podrebersek demonstrates, this involves consideration of two issues -

• the degrees of departure from the respective standards of care[264] (level of culpability) and

• "the whole conduct of each negligent party in relation to the cause of the injury"[265] (causal potency)

235 Frosster contends that Mr Acir's damages should be reduced by reason of his own contributory negligence. It is argued that he failed to take adequate care for his own safety when he reached over the crossbar to retrieve the subject crate. It argues that he should have removed the crossbar and moved the first row of crates blocking access to the subject crate. It contends that this was an easy and readily apparent exercise, which would have reduced the risk of injury.

236 Mr Acir contends that, in the circumstances, it was not possible to carry out the task as suggested by Frosster because the rear of the truck was overloaded with empty and full crates, and manoeuvring the crossbar was, on his account, a particularly difficult exercise.

237 It is first necessary to resolve the differences between the evidence of Mr Acir and Mr Comfort as to the difficulties associated with the task on the day. Mr Comfort was an impressive witness. He no longer works for Frosster and was, in my view, completely independent in his assessment of the manner in which the run was operated and the difficulties associated with the various tasks. As I have said, Mr Acir's evidence on any matter that may prejudice his claim is to be treated with caution.

238 Mr Acir told me that the empty crates had been stacked up towards the rear of the box (i.e. towards the back doors). He said that the crossbar would only be removed if there was a large order and that it was not a simple job to remove it. It was not removed for smaller orders. In any event he said that on the day there was no room to move it because there were empty crates at the back of the truck.[266] He also maintained that moving the crates would have required a significant amount of bending.[267]

239 Mr Comfort described the manner in which access would be gained to crates blocked by another row of crates. The crossbar would be removed and the hook used to pull out the stack blocking the way - it could be slid out whilst the bar was placed vertically between the roof and the floor.[268] He did not accept that the job was carried out "non-stop" and said that "you always have plenty of time".[269] He thought that it would be impossible to have the rear of the truck full with empty crates[270] and there was always room in the rear of the truck to manoeuvre empty ones.[271] He said there was always a gap between crates on one wall and the other.[272] Whilst he could not remember the exact configuration on the day of the accident, I do not think that this precludes reliance upon his testimony, particularly given the defects in Mr Acir's credit. I do not accept the submission put by Mr Acir's counsel that the "puttage" in the cross-examination of Mr Acir in some way reflects on Mr Comfort's credit or reliability as a witness.

240 Mr Comfort had worked for Frosster for a number of years and had an intimate familiarity with the use of the trucks, the shifting of crates and the removal of the bar. I accept his evidence that (a) the crossbar was easy to remove; (b) the first row of crates could be removed without difficulty; (c) there was sufficient space for those crates that blocked Mr Acir's access to be removed; and (d) there was no time pressure.

241 Whilst it is true that Frosster had not laid down a system of work as to filling of orders,[273] there still remains an obligation upon an employee, notwithstanding the employer's negligence, to take adequate care for his own safety. Mr Acir knew that he was endeavouring to remove a fully laden crate by stretching across a row of crates (three full crates). It would have been a relatively easy task to remove the crossbar and then use the hook or individually remove the crates blocking his access to the subject crate. He should, I think, have appreciated such an approach would have reduced the risk of injury. He would not have had to stretch across the row of crates which blocked his path. If he had done so, he would have been able to remove the crate containing the items for the order by either taking these products out of the crate individually or moving the crate onto the floor so that he could do so. In failing to remove the crates blocking his access, he was guilty of contributory negligence.

242 In making the comparison between the employer's negligence and Mr Acir's contributory negligence, I take into account the fact that Mr Acir was performing the task without any instruction or training from his employer and, as I have said, was left to his own devices. This was not, however, a case of momentary inattention or inadvertence. It was something that could have been thought about and undertaken. However, whilst Mr Acir should have thought more carefully about what he was doing, the employer, Frosster, must bear the lion's share of the responsibility as it was its system (or lack of it) that was the primary cause of the back injury. The appropriate reduction for contributory negligence is 10%.

243 Mr Acir is entitled to damages for pain and suffering and loss of enjoyment of life as a result of the back injury and its effects. I have already analysed the lay and medical evidence in relation to the effects of the back injury.[274] The back condition, which affects Mr Acir in his daily activities, will continue to afflict him into the foreseeable future. It affects sitting, standing, walking, bending, lifting and twisting, and pain is aggravated when carrying out these tasks. The condition has also had a limited affect on his social activities.

244 I need now to turn to the question of the shoulder injury in the context of the common law claim.

245 The placing of a plaintiff in a position where he may suffer further injury does not, of itself, establish a causal link between the negligent act and the subsequent injury. In Lindeman Ltd v Colvin,[275] Latham CJ said:

"Where a second injury follows upon an original injury it may be causally connected with the original injury, as in cases of injury directly due to medical treatment of the injury. But not everything that happens during a period when a man is undergoing medical treatment can be regarded as part of the medical treatment so as to be causally connected with the injury for which he is being treated. A man undergoing medical treatment must have meals, and in one sense the eating of food may be described as an integral part of his medical treatment. But if these meals consist of normal food and he happens to choke himself and die, and the choking had nothing to do with his original injury, there would be no evidence to justify a finding that the death resulted from the original injury and so arose out of his employment. In this case the cause of the fracture was quite independent of the original injury. The bone condition of the respondent was not due to or aggravated by or otherwise affected by the original injury. The act of walking was not necessitated by the head injury. Walking is a normal activity of ordinary life, and when the respondent was walking in the hospital grounds he was only resuming his normal life. There was no causal connection between the fracture and the original injury ...".[276] (Citations omitted).

246 Subsequently, in Nader v Urban Transit Authority of New South Wales,[277] Mahoney J distinguished between events that merely create "the occasion of" the further injury and events that constitute the "reason or the opportunity" for the further injury.

247 In March v Stramare,[278] the High Court said:

"Generally speaking that causal connexion is established if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent."[279]

248 Of course, the High Court went on to emphasise that causation:

"is all ultimately a matter of commonsense ... and not susceptible of reduction to a satisfactory formula".[280]

"Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury unless the risk of the accident occurring at that time was greater".[281]

250 It is generally accepted that there is a link for the purpose of causation, both under the Act and at common law, where a worker places additional stress on one limb to compensate for the disability of the other; that is because it has been placed at greater risk. At a more distant level is the fact situation in Metron Medical Australia Pty Ltd v Windahl[282] in which the plaintiff suffered a work injury and then in the course of physiotherapy treatment for that work injury received an electric shock which caused him profound disability. The County Court judge concluded that there was a causal link as the worker had been placed in that position by reason of the negligence of the employer. The Court of Appeal affirmed that conclusion and special leave to appeal to the High Court was refused.[283]

251 But for the injury to the back, Mr Acir would not have been placed in the position where his vulnerable shoulder was subjected to the stresses and strains which eventually rendered it symptomatic. What is critical is that these tasks were not the usual duties of Mr Acir. A job had, in fact, been designed for him which was totally different to that which he normally carried out.[284] But for the back injury, he would not have been performing the tasks. It provided the occasion of the further injury, as well as the reason and opportunity for it. This injury is to be contrasted to, say, Mr Acir simply falling over at work and suffering injury.

252 Ultimately, in the course of discussion with counsel in closing submissions, Senior Counsel for Frosster did not demur from the proposition that if it was established that the shoulder injury was linked to the relevant work activities in 2006, then it was properly regarded as a consequence of the back injury.

253 Finally, I note that no argument was addressed to me as to reasonable foreseeability preventing the causal link being established.

254 Therefore, the shoulder injury is a further impairment that I must take into account both in terms of general damages and damages for loss of earning capacity. Mr Acir is limited in this ability to use his arm above shoulder height and has difficulty rotating it.[285] It clearly compounds problems occasioned by his back injury. However, I also accept the evidence of Mr Haw[286] and Mr Schofield[287] that in due course it will improve to some extent, albeit that its natural course to date has not seen such improvement.

255 I also take into account the psychological sequelae of the injuries, although as I have said,[288] I regard their impact as being relatively moderate, given the other issues in Mr Acir's life.

256 There are several other specific matters which I should now address. I do not accept that the back or shoulder injuries have played any real part in Mr Acir's matrimonial difficulties. I have concluded that he was a heavy drinker for a number of years prior to the back injury and that there was no significant increase in his drinking habits. This alone would account for difficulties. The time at which the major breakdown in his relationship with his wife occurred was when he attended Moreland Hall for treatment of his alcohol consumption. Although he said that he had stopped drinking at this time, it seems clear that he did not stop until late 2007. There are, therefore, other explanations for the breakdown in his relationship.

257 The video taken on 3, 5 and 25 August 2005,[289] whilst Mr Acir was working on part-time light duties demonstrated that he was, at that time, capable of carrying out other activities apart from his work. He was observed to drive a van and carry items into his home, and on 5 August was filmed preparing for a trip to Mildura and then driving to that town.

258 However, I do not regard the film of Mr Acir's trip to Mildura on 5 August as being destructive of his credit in relation to the effects of the back injury. The evidence of Mr Caligari that Mr Acir stopped on some four occasions (three voluntary and one involuntary), tallies, generally speaking, with appropriate breaks to accommodate his back condition. On the other hand, I do take into account the fact that he was able to engage in such a trip after working half a day and was seemingly unimpeded in carrying out activities seen on video, particularly at the service station prior to the trip. This seems to me to not necessarily undermine his claim, but to demonstrate that he had a capacity to perform at least light activities without any significant disability. There is also the evidence of Mr Schofield that there are clinical signs of deterioration in his back condition since that time.[290]

259 The video taken in February 2007 showed Mr Acir driving a van. He was not, in my view, carrying out any activities inconsistent with his back condition.

260 Overall, I remain of the view that the back and shoulder injuries have impaired, to a significant extent, Mr Acir's ability to carry out moderate to heavy activities.

261 The figures submitted by the parties each reflect their submissions as to the credit of Mr Acir. Counsel for Frosster suggested a figure of $90,000 and counsel for Mr Acir the sum of $290,000. I regard the latter figure as entirely out of proportion to the real effects of the injuries. I think an appropriate allowance is $140,000 for general damages, particularly given that there is a risk that Mr Acir's life will be cut short as a result of his liver condition.[291]

262 Mr Acir is entitled to be compensated for loss of earning capacity caused by Frosster's negligent acts. That loss of earning capacity has been produced by the injury to his back, compounded by the subsequent injury to his right shoulder and accompanying psychological sequelae. However, in determining that amount (in both assessing loss from the date of injury to the date of trial and into the future), a Court is required to take into account other events unrelated to the subject injuries which would have, regardless of the subject injuries, limited or eliminated the capacity of Mr Acir to earn income.

263 The approach to be taken to this issue is that stated by the High Court in Malec v Hutton:[292]

"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (Citations omitted).

264 Subsequently, in Poseidon Ltd & Sellars v Adelaide Petroleum NL,[293] the High Court said:

"In Malec v JC Hutton, this court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages."

265 In Seltsam Pty Ltd v Ghaleb,[294] Ipp JA (with whom Mason P agreed) held that Malec required the application of the following principles:

(a) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The Court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The Court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities.

266 One other issue of principle arises, namely, how to treat the independent supervening illness in the form of Mr Acir's cirrhosis of the liver. In Jobling v Associated Dairies Limited,[295] Lord Bridge said:

"But when the supervening illness or injury which is the independent cause of loss of earning capacity has manifested itself before trial, the event has demonstrated that, even if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or extinguished".[296]

267 In Australia, the application of that principle is not doubted. In D & M Mining Pty Ltd v Barwick,[297] Giles JA (with whom Santow JA and Windeyer J agreed) said:

"Since the Court acts on facts rather than speculation where it can, if prior to the hearing there has been an event which would independently have caused loss in whole or part of the lost earning capacity, that event must be taken into account in determining the duration or extent of the exercise of a lost earning capacity and so in arriving at the plaintiff's damages".[298]

268 With these principles in mind, I turn to the question of assessment of Mr Acir's damages for loss of earning capacity.

269 The parties were agreed that Mr Acir's earnings at the time of injury was $730.30 net per week and that superannuation should be calculated at 7% of the gross figure.

270 Frosster contended that the damages should be circumscribed until February 2006 when the diagnosis of a severe liver condition was made. I do not accept this position, as Mr Acir would have had an economic imperative to continue working for as long as he could. Indeed, he worked on until May 2006 when his shoulder condition precluded him from working part-time. Dr Wall's evidence, relied upon by Frosster,[299] is that once the excessive fluid in the abdomen set in with the noted muscle wasting, then it would not have been possible from the "liver point of view" for him to keep working. Whilst I accept that during this period Mr Acir sustained a significant loss of weight and was requiring regular medical attention, he had, however, attended the course at Moreland Hall and, one assumes, would have done his best to stay at work, particularly given his young family.

271 It was submitted on behalf of Mr Acir that the appropriate way in which to assess his damages for the past was to allow his total loss of wages up until October 2007 when he underwent the cholecystectomy. It was conceded that at that point of time, the liver condition would have precluded him from working. In my view, there was a significant likelihood that Mr Acir would have worked on to that time.

272 Therefore I accept the calculations submitted on behalf of Mr Acir (subject to a mathematical correction):

• 20.1.05 - 1.5.05, 14.29 weeks total incapacity @ $730.30 net per

week plus superannuation (7% of $959) $67.13 per week, total

• 1.5.05 - 2.7.06, 61 weeks @ 50% capacity being net per

week plus superannuation per week, total $417.07 per

plus superannuation $72.69 per week, total $873.09 per week $56,497

273 The Malec principles must be applied in evaluating damages for past hypothetical events. I have accepted that, but for the back and shoulder injuries, it is likely that Mr Acir would have worked to October 2007. However, this was by no means certain. Other possibilities need to be taken into account, such as his worsening cirrhotic symptoms and the risk that he would have had to cease work earlier or that his other underlying condition, the diabetes, may have affected his earning capacity during this period. A discount of about 15% should be applied and therefore an allowance of around 85% of the total sum. It is appropriate to round this out and allow a figure of $80,000 under this head.

274 Mr Acir's counsel contended that Mr Acir would have worked from mid 2010 to age 65 and that a deduction of 40% should be made for "the vicissitudes". It was computed in the following way.

"mid 2010 to aged 65 total incapacity @ $924.90 net per week, plus

$82.29 superannuation per week, total $1,007.19 net per week

computed by the delayed 6% multiplier (661.1 x .943) less 40%

The capital figure without reduction is $628,000 approximately.

275 Frosster adopted two differing positions. The first contending that no economic loss should be allowed at all after February 2006. This was put on the basis that a combination of the cirrhosis of the liver and the diabetes eliminated for good Mr Acir's earning capacity. There was no realistic prospect of him returning to the workforce as a result of these conditions irrespective of the effects of the back injury. The second position was, I think, premised on the basis that the work injury had materially contributed to the liver condition which I have rejected. It can be put to one side.

276 Absent a liver transplant, Mr Acir's earning capacity almost certainly has been destroyed. However, Dr Gow's evidence concerning the liver transplant, which I accept, is critical. I have set it out at [92]-[93]. His unchallenged evidence was that within six months of the transplant the patient would have been able to return to work. He did not distinguish between types of employment and no challenge was mounted by Frosster to this evidence. The estimate by Mr Acir's counsel of a return to work in mid 2010 is problematic, given Dr Gow's evidence that it would take, on average, a year after being placed on the waiting list to receive a liver transplant and then six months recuperation before returning to work. This would make the likely date of return to work as early 2011.

277 The figure of $924.90 net and $82.29 superannuation relied upon by Mr Acir as representing the current applicable remuneration for a driver was derived by applying increases in the average weekly earnings for Victoria (as compiled by the Bureau of Statistics) to his agreed wage in 2006.[300] The determination of the current wage was the subject of a somewhat strange and unhelpful dispute between the parties. Frosster refused, notwithstanding an adjournment for over a month, to adduce wages of a comparable employee or even an indication of the level of wages. I was told that the responsible person was "overseas". This approach was most unhelpful, particularly when Frosster produced and solely relied upon a schedule asserting without any foundation a 3% per annum rise in earnings and no more. It was said that use of the average earnings index was inappropriate as it would be advantageous to Mr Acir by encompassing a broad range of occupations. Of course, the answer to Mr Acir's contention was to adduce evidence of current wages, there being no evidence that the job had disappeared. In that way, any complaint about generality would have been avoided. I am, to put it mildly, surprised by Frosster's approach. In litigation such as this, it should be expected that an employer can, without compulsion, adduce evidence that can assist the Court in fixing an appropriate figure. Simply leaving the Court without any real assistance is not acceptable. Of course, it may be said that Mr Acir, who bears the onus, could have called a representative of Frosster to give relevant evidence. This, I anticipate, would have simply led to more confusion and extended the course of the trial, particularly given the absence of the responsible person. It is difficult to see, considering the protracted course of this trial, why this matter could not have been resolved.

278 The exercise of determining future loss of earning capacity does not turn on mathematical precision and the Court's task is in fixing a sum using multipliers and calculations as a guide. Bearing this in mind, I think that the reasonable course, with one exception, is to accept the calculations put forward on behalf of Mr Acir, acknowledging that, given the way average weekly wages are calculated by the Bureau, it may somewhat inflate the true position. The exception relates to the date on which, absent the back injury, Mr Acir would have hypothetically returned to work.

279 I think $610,000 (reflecting, roughly, a putative return to work in early 2011) should be accepted as the starting point for the calculation of Mr Acir's future loss of earning capacity - this being the capitalisation of the total loss of wages if he had worked unimpeded through to age 65.

280 The application of the Malec principles requires allowances to be made for a range of possible eventualities, independent of the back and shoulder injuries, which would have either terminated or restricted Mr Acir's ability to earn income.

281 First, Mr Acir's liver condition. I have summarised Dr Gow's evidence as to the various risks involved in Mr Acir's treatment.[301] There is a 25% risk that Mr Acir will not receive a transplant. In that event, the condition will be terminal, probably within two to three years, leaving Mr Acir with no capacity to engage in work until the time of death.. Assuming, however, that he receives a transplant, there is still a 5% risk that Mr Acir will not survive one year and a 25% risk that he will not survive for ten years.

282 Second, Mr Acir's underlying diabetic condition is a relevant factor, particularly given his involvement in manual work. It, of itself, may have caused him to cease work.

283 Third, Mr Acir's record of past unemployment and part-time employment does not suggest long-term full-time employment to retirement age. Whilst it is only an indicator, the fact that he was employed on a full-time basis for roughly six months out of the five years prior to the January accident must be taken into account. His consumption of alcohol prior to the January accident also needs to be considered in this context.

284 Finally, there is the question of the usual vicissitudes of life. I think that most of these are catered for by the three items I have identified, but there is also the risk that some other event (such as an accident, separate illness or early retirement) may have affected his work capacity.

285 In my view, an appropriate discount of the capital sum reflecting the risks posed by the above factors is 70%. This would produce a capital sum to compensate Mr Acir for loss of earning capacity, referable to the back and shoulder injuries, of approximately $183,000 (being 30% of $610,000).

286 The total amount of taxation paid on worker's compensation payments is approximately $15,000. This figure was not in issue. Given that I have assumed that Mr Acir would have worked until October 2007, there is no reason to adjust this figure.

287 I have reached the following conclusions in relation to Mr Acir's claim:

(a) Mr Acir's back injury is a serious injury within the meaning of the Act.

(b) Mr Acir's shoulder injury is causally related to the back injury, for the purpose of the assessment of damages.

(c) Mr Acir's liver condition is not related to his back injury.

(d) Frosster was negligent and in breach of its duty of care to Mr Acir. It was also in breach of its statutory obligations under the Manual Handling Regulations. Those breaches were a cause of the back injury and the subsequent shoulder injury.

(e) Mr Acir's damages are to be assessed at $418,000.

(f) There was contributory negligence on the part of Mr Acir.

(g) Mr Acir's damages are to be reduced by 10% on account of his contributory negligence.

(g) Mr Acir is entitled to judgment in the sum of $376,200.

288 Subject to hearing from counsel, I propose to give judgment in favour of Mr Acir in the sum of $376,200, being $126,000 for pain and suffering damages and $250,200 for pecuniary loss damages.

[1] Section 135BA(6) requires a determination of serious injury within the meaning of s 134AB(38) to be made prior to "recovery of damages".

[2] [2009] VSC 173

[3] "Box" refers to the metal and sheet frame that encloses and sits on the tray of the truck as is typical of the fit-out on the rear of goods trucks. When I refer to the rear of the box, I mean the area close to the rear doors and the front refers to the area directly behind the cabin and located to the left of the passenger side door of the box.

[46] Exhibit P2 - Report of 2 August 2006.

[47] The evidence of the two Frosster employees, Mr Marangos and Mr Comfort.

[70] Exhibit P11 - Report of Mr Haw of 30 November 2005, T438.

[75] Mr O'Brien was here referring to the back injury and the shoulder injury.

[76] Exhibit P5 - Report of 20 April 2009. See the definition of "suitable employment" at [ 184].

[77] The challenge based on the video was, in any event, factually incorrect. T359. Cf the evidence of Mr Caligari, T467-472.

[97] Exhibit P11, report of 28 July 2006.

[107] T345, decompensated means the liver is not doing its day-to-day function.

[111] T341 - Dr Gow - Non-alcoholic steatohepatitis (NASH).

[135] (1996) 15 WAR 1, 3.

[136] [2001] NSWCA 305; (2001) 52 NSWLR 705 [85].

[140] T100-101, interruption by trial judge excised.

[183] There was no issue that Mr Acir was a worker within the meaning of s 5 of the Act.

[184] Barwon Spinners Pty Ltd v Podolak ("Barwon Spinners") [2005] VSCA 33; (2005) 14 VR 622; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.

[185] Section 134AB(37) of the Act, definition of "serious injury" - para (a).

[186] Section 134AB(37) of the Act, definition of "injury" - para (c).

[188] Barwon Spinners [11]-[13].

[189] Barwon Spinners [70], Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649 [9], [43], [45], [51], [61].

[190] Barwon Spinners, Mutual Cleaning & Maintenance v Stamboulakis [2007] VSCA 46; [2007] 15 VR 649, 652-653, Jayatilake v Toyota Motor Corporation Australia [2008] VSCA 167 [18] and [19].

[192] Section 134AB(38)(b), (c), (e), (f) and (g).

[193] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 [63].

[194] E.g. Transport Accident Act 1986, s 93.

[195] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 167, TAC v Dennis [1998] 1 VR 702, 703, Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187 [41].

[197] Section 134AB(37), definition of "serious injury".

[202] [2006] VSCA 194 [5]

[203] Accident Compensation (Common Law and Benefits) Bill, Hon. Monica Gould (Minister assisting the Minister for WorkCover) Legislative Council 23 May 2000.

[205] [2006] VSCA 194.

[206] [2006] VSCA 194 [2].

[207] It is not necessary, for the purpose of this exercise, to endeavour to determine what does and does not constitute personal exertion.

[208] Either in the County Court or this Court.

[210] Luntz Assessment of Damages Butterworths 3rd Edition 5.1.4.

[213] [2005] VSCA 33; (2005) 14 VR 622 [27].

[214] [25]. See also State of Victoria v Rattray [2006] VSCA 145 [20], [21].

[215] [2008] VSCA 230 at [11].

[219] See Barwon Spinners [2005] VSCA 33; (2005) 14 VR 622 [31].

[221] [1984] HCA 60; (1984) 155 CLR 306, 313.

[222] [2005] HCA 14; (2005) 79 ALJR 839 [12]

[223] [2004] HCA 28; (2004) 217 CLR 424.

[224] [2004] HCA 28; (2004) 217 CLR 424 [62]

[225] [2004] HCA 28; (2004) 217 CLR 424, [54]

[226] [2008] VSC 544, [76]-[77].

[243] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [16].

[247] Exhibit P8. These regulations were made under the Occupational Health & Safety Act 1985. They were revoked on 1 July 2007 by reg 1.1.4(1) (Schedule 1) Occupational Health & Safety Regulations 2007 S.R. 54/2007 Part 3.1 Manual Handling. The Occupational Health & Safety Act 1985 was also repealed by the Occupational Health & Safety Act 2004 which came into force, with some exceptions, on 1 July 2006.

[248] [1999] VSC 543.

[249] [1937] HCA 18; (1937) 56 CLR 464, 478. See also Glass, McHugh, Douglas "Liability of Employers" 2nd edition Law Book Company p 110-114.

[250] [1999] VSC 543, [25].

[251] [2004] VSCA 19 [44]-[48].

[252] [2009] VSC 175.

[253] [2009] VSC 175 [5].

[254] Commencing with Connor v S.P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 478, see for example Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313, T.A.L. Structural Engineers Pty Ltd v Vaughan Constructions & Anor [1989] VicRp 51; [1989] VR 545.

[255] See now Part 3.1 Occupational Health and Safety Regulations 2007.

[258] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 [18].

[259] [1979] HCA 37; (1979) 142 CLR 563.

[260] [1979] HCA 37; (1979) 142 CLR 563, 568. See also Mason J at 572 and Murphy J at 576 to 577.

[261] [1985] HCA 34; (1985) 59 ALJR 492.

[262] [1985] HCA 34; (1985) 59 ALJR 492, 493.

[263] [1985] HCA 34; (1985) 59 ALJR 492, 494.

[264] Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 [28].

[265] See Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65, 68.

[273] See McClean v Tedman [1984] HCA 60; (1984) 155 CLR 306.

[275] [1946] HCA 35; (1946) 74 CLR 313.

[276] [1946] HCA 35; (1946) 74 CLR 313, 317 (Latham CJ); see also Brocker v Roscoe Transport Pty Ltd (1985) Aust Torts Reports 80-750 (NSW CA); Vieira v Water Board (1988) Aust Torts Reports 80-166 (NSW CA).

[277] (1985) 2 NSWLR 501, 517 - 518.

[278] [1991] HCA 12; (1990) 171 CLR 506.

[279] [1991] HCA 12; (1991) 171 CLR 506, 514.

[280] [1991] HCA 12; (1991) 171 CLR 506, 515.

[281] [1991] HCA 12; (1991) 171 CLR 506, 516.

[282] [2007] VSCA 40.

[292] [1990] HCA 20; (1990) 169 CLR 638, 642-643.

[293] [1994] HCA 4; (1994) 179 CLR 332, 350.

[294] [2005] NSWCA 208 [103].

[295] [1981] UKHL 3; [1982] AC 794.

[296] [1981] UKHL 3; (1982) AC 794, 820. See also 809.

[297] [2004] NSWCA 137, [39].

[298] See also K-Mart Australia Ltd v McCann [2004] NSWCA 283.

[299] Exhibit P3, Report of 14 March 2009.