Pollard v Baulderstone Hornibrook Engineering Pty Limited & Bilfinger Berger AG

The circumstances of injury 5 An unsealed road provided on site vehicular access from Kingsgrove Road. At that entrance the unsealed road was divided for a short distance by a concrete barrier. Vehicles entering the site proceeded to the left of the barrier, vehicles leaving the site proceeded to the right, (looking from Kingsgrove Road). A row of water-filled plastic barriers were located to the right of the concrete barrier and parallel to it. A large pile of what was apparently dirt and/or gravel marked the left hand edge of the road. 6 The wash bay was located between the concrete and plastic barriers. It comprised a pit approximately 5 metres wide by 6 metres long and 0.6 - 0.9 metres deep. A grid of transverse metal rails was on top of the pit. The rails were estimated to be about 50 millimetres wide and the gap between them 150 millimetres. The appearance resembled an enlarged cattle grid. 7 The plaintiff gave evidence that at the time of his fall there was a piece of wire mesh "about a foot, foot and a half" attached to the rails where a driver would alight from his truck if stopped on the wash bay and a somewhat longer piece of mesh on the opposite side of the wash bay extending about half its length. Two photographs (exhibit A) taken approximately 3 months after the fall showed the whole grid covered by steel mesh. 8 There was evidence that, when the site was wet such that mud and debris could attach to the tyres and underside of vehicles, the vehicles would stop at the wash bay where the wheels and underside of the vehicle would be washed before leaving the site. The purpose of this was to avoid mud and other debris being tracked onto public roads. Water hoses and a high pressure hose were located at the wash bay for this purpose. When conditions were dry it was unnecessary to stop at the wash bay before leaving the site. 9 The plaintiff gave evidence that during the month prior to his injury he had delivered concrete to the site on a number of occasions using the Kingsgrove Road entrance. His estimate of the number of such occasions varied from 6 to 12. He had been instructed by Pioneer that when the site was muddy he was to stop at the wash bay and wash the wheels. On occasions, designated personnel would be present to wash the truck wheels and the plaintiff would remain in his truck whilst this occurred. On other occasions the designated cleaning personnel were not present and the plaintiff had alighted approximately half a dozen times from the truck and washed the wheels himself. He had observed other truck drivers do the same. He had not been instructed that he should not wash the wheels of the truck at the wash bay nor was there any sign to that effect. 10 The plaintiff gave evidence that on 16 March 2001 the site was muddy. He had delivered a load of concrete and proposed to leave via Kingsgrove Road. He stopped his truck on the wash bay. There were no designated personnel present to wash the tyres. He decided to wash them himself. He described what occurred in the following evidence: Q. Mr Pollard, you told his Honour that you had cleaned off the driver's side front wheel, is that so? A. That's correct.

Q. And proceeded down the back? A. That's right.

Q. What was the state of the surface of the grid near the rear wheels? A. Wet, muddy.

Q. What did you do? A. I slipped.

Q. What were you doing when you slipped? A. Hosing the rear tyres.

Q. Had you proceeded past the first set of rear tyres to the second, what was the position? A. Basically on the first set of rear tyres.

Q. Yes, what caused you to slip? A. The surface, muddy slippery surface, and the gap.

Q. What happened to you? A. I fell backwards.

Q. What happened to your foot? A. My foot slipped between the iron bars.

Q. Which foot? A. My left foot; fell, I sort of slipped down to my knee and fell backwards at the same time. And in cross examination: Q. Then prior to your accident you had walked off the mesh on to the metal rails? A. That's correct.

Q. And you walked over one, two, three, about four metal rails? A. Approximately, sir.

Q. And were you walking backwards whilst you walked over the four metal rails? A. No, sir.

Q. You were walking forwards, were you? A. That's correct.

Q. So that you turned around, did you, and started to walk backwards shortly before your accident? A. Yes, after I finished the front tyres I turned my body to start on the first back tyre. So I walked forward down to the middle of the tyre. So I turned sideways and then stepped backwards to finish the back tyre and that's when I slipped.

Q. And you knew as you were using the hose that on your version of events the metal rails were muddy and slippery? A. Yes, they were.

Q. And you say you'd known that even before you got out of your truck? A. I had - I had mud all over my boots and mud all around. … Q. … So is this the position, Mr Pollard, that on the day of your accident, in the knowledge that, you say, the rails were slippery, you were walking or took a step backwards and that your foot somehow slipped off a rail; is that right? A. That's correct.

Q. Causing you to fall backwards? A. That's right.

Q. Is that what happened? A. I lost my balance, sir.

Q. So that you lost your balance as you took a backwards step on to a rail; is that right? A. I did take a step backwards and slipped off, yes.

Q. And you fell backwards and landed on your buttocks, did you? A. Fell back and my buttocks landed between two iron bars. One of them was across my lower bum and one was across my lower back. 11 The defendants did not dispute that the plaintiff sustained injury at the time and place alleged nor did they suggest the plaintiff's version of the events of the fall was fabricated.

Liability - Negligence 12 In addition to the plaintiff's evidence a fellow driver, Mr Beatty and a consulting civil engineer, Mr Kiernan, gave evidence on liability in the plaintiff's case. 13 Mr Beatty's evidence was that he had delivered concrete to the site on many occasions and that mostly there was a person there to wash the wheels. There were occasions when there was no person there for that purpose. On those occasions, "early in the piece", he had washed the wheels of his vehicle. He had done this 3 - 4 times but had got mud all over himself the first couple of times and on the last occasion slipped on the grate. He did not stand outside the concrete barrier when washing the wheels "because trucks would come in". He had received instructions from either the builder or Pioneer, he could not remember which, that the wheels were to be cleaned before the site was exited, but he was not instructed not to wash the wheels himself. 14 Mr Beatty was cross examined as to a statement he had signed dated 23 June 2004 in which he had said he could not recall ever getting out of his truck to wash the wheels. Mr Beatty said, in relation to the statement, that he had received a phone call "out of the blue" in which he had been asked some questions which he had answered. He had then been sent a statement based on the conversation. He had given the statement a quick browse, signed it and sent it back. Subsequently he thought about the job and the true position was as he had stated in his evidence. Mr Beatty's demeanour in giving his evidence was such as to cause me to accept that evidence. 15 Mr Kiernan had not viewed the site. He concluded the grid was hazardous and the placing of steel mesh over the entire grid would have eliminated the safety problem. His report and evidence were based upon the plaintiff's comments and the photographs in exhibit A. He agreed the hoses could have been used from outside the barriers but said this would place the user in a traffic area and at risk of being run over. 16 The only witness in the defendants' liability case was Mr Robinson. He was the defendants' general superintendent on the site. He was charged with the responsibility of coordinating the operational work, the site works, by managing the supervision of subcontractors, direct labour force, overseeing the implementation of various management plans for the site. His office on site was approximately 40 metres from the wash bay. 17 Mr Robinson gave evidence he had implemented the wash bay system. Employees of the defendants (or on some occasions hired labour) undertook the actual task of operating the hoses. This was not done in dry conditions. Mr Robinson gave the following evidence: Q. And did you, from your position on the site, either in your office or walking around, observe that taking place in wet conditions? A. There was always a direction to start that. That was a voluntary thing for the workforce. We couldn't direct people to go and work in the rain, or the wet. They would volunteer, which there was never shortage of people, because it was double time. … Q. To your observations, was the system adhered to in wet conditions? A. Yes. … Q. Did you, at any time prior to March 2001, observe truck drivers stop and undertake the cleaning of the tyres themselves when there were not men there? A. No. 18 Mr Robinson said that prior to the plaintiff's injury he had received no complaint or report about the condition of the wash bay, that it was slippery or of any accidents. The cleaning was undertaken by designated employees from outside the barriers. The subsequent decision to place mesh over the whole of the grid was a result of a suggestion from either one of the work team or the supervisor involved "that we might get better, a better result, if on different occasions when it was wet if we could get inside to hose pressure, wash the wheels". The defendants did not have men manning the gate which was left open during the day. There were approximately 60 truck movements an hour coming and going at that entrance. 19 Mr Robinson also gave the following evidence: Q. And it was part of good housekeeping, on behalf of Baulderstone Hornibrook, to ensure that vehicles didn't leave the site and go out onto the highways and by-ways of Sydney with the wheels and the undercarriages of their trucks caked and coated in mud and debris, correct? A. Correct.

Q. And it was well understood, from your point of view, that if the site was wet and trucks picked up mud and other detritus, inevitably as they went around the site, that they were to be cleaned before they left the site? A. Their trucks had to be cleaned before they left the sites.

Q. There was no instruction given to any driver that they were not to clean the wheels of the vehicles themselves, was there? A. No.

Q. There was no notice to that effect, namely, "drivers, remain in your vehicles", or any words of that type? A. Not that I recall. … Q. And if a vehicle arrived at the rumble grid and no Baulderstone Hornibrook worker or employee had volunteered for the job, there would be nobody there, correct? A. The trucks wouldn't have been allowed to leave the site.

Q. They wouldn't be allowed to leave because of the dirty wheels, would they? A. If that was the case. 20 In cross examination Mr Robinson agreed he didn't know anything about the plaintiff's accident. He agreed he didn't know if there were any of the defendants' men at the wash bay to clean wheels on the day of injury. 21 The defendants accepted they owed a duty of care, as occupiers, to the plaintiff. They denied breach of that duty. 22 The defendants submitted, they were not in breach of duty essentially as: (a) there was no acceptable evidence which put the defendants on notice the grid was in any way unsafe or hazardous or that drivers were likely to walk on it and clean their own trucks. As there had been no prior complaint, report or incident it should be inferred either the rails were not slippery or the drivers didn't stop there; (b) Mr Robinson had not observed drivers alighting from trucks at the wash bay and washing their truck's wheels. Such a practice was not authorised; (c) Mr Robinson had put in place a system for designated persons to wash wheels at the wash bay when it was wet or the site was muddy and that system was adhered to; (d) There was no evidence of any direction, sign or requirement by the defendants that the plaintiff stop his truck for the purposes of washing the wheels when the wash bay was not manned by the defendants. The plaintiff's was an isolated incident when he, of his own accord, decided to stop when not directed to do so. 23 In my opinion the plaintiff has established negligence on the part of the defendants for the following reasons: (a) The defendants were responsible for the presence and maintenance of the wash bay. The grid of the wash bay created a risk of injury to persons walking on it either by reason of the gaps between the rails or the wet and muddy surface of the rails which rendered the grid slippery when the wash bay was in use. (b) It was a matter of common sense to perceive that a person could step or slip into a gap between the rails and that the presence of water and mud on the steel rails would enhance the risk of a person slipping - Australian Oil Refinery Pty Limited v Bourne (1980) 28 ALR 529. (c) The risk was foreseeable and one of which the defendants knew or ought to have known. It was not insignificant and if it eventuated serious harm could result. (d) There were a number of reasonably practicable precautions which, if taken, would have obviated the risk of harm. In particular the grid surface could have been rendered safe by extending the steel mesh which was present at the time of injury for the length of the grid; by placing steel mesh over the whole grid as was done after the accident or by instructing drivers directly or by a sign at the wash bay that they were forbidden to wash the wheels of their vehicles and indicating the steps to be taken in the event designated wheel washers were not present. These precautions, I infer, would be relatively inexpensive. (e) I accept the evidence of the plaintiff and Mr Beatty that on a number of occasions it was necessary for them to alight and wash the wheels and the underside of their trucks at the wash bay when the designated wheel washers were not present and that this was done by them whilst standing on the grid. (f) It is thus apparent that the system put in place by Mr Robinson was not always adhered to. Mr Robinson's evidence was that no vehicle would be allowed to leave the site with dirty wheels. He undoubtedly would have expected Pioneer to inform its drivers of this as Pioneer did in the case of the plaintiff and probably also in the case of Mr Beatty. (g) In these circumstances it was foreseeable that if the tyres were muddy and no designated wheel washer was present the driver would himself wash the wheels and may do so from a position on the grid. (h) The evidence went no further than that the wash bay had been in place for a month before the plaintiff's injury. It cannot be inferred from the fact that there had been no prior complaint, report or incident that either the grid was not slippery or that drivers did not stop there. This is illustrated in the case of Mr Beatty who stopped to wash his vehicle's wheels and slipped on the grid yet there was no complaint or report to the defendants of that incident.

Statutory counts 24 The plaintiff, in his Amended Statement of Claim, alleged his injury was caused by breach of statutory duties imposed by Regulation 73(2), 95(7), 73(8) and 141(1) of the Construction Safety Regulations 1950. 25 In his closing address senior counsel for the plaintiff relied only upon Regulation 73(2) to establish breach of statutory duty. He abandoned reliance on Regulations 95(7), 73(8) and 141(1). 26 It was common ground that Regulation 73(2) was in force at the time of the plaintiff's injury though subsequently repealed upon the commencement of the Occupational Health and Safety Act 2000 on 1 September 2001. It was also common ground that contributory negligence was not a defence to an action for breach of statutory duty arising, as here, before the commencement of the Act in a non employment context (see Booksan v Wehbe [2006] NSWCA 3 at [160 - 173], Balesfire Pty Limited v The Guttershop [2006] NSWCA 112 at [53]). 27 Regulation 73(2) provided relevantly: Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74 ... (2) provide and maintain safe means of access to any place at which any person has to work at any time. 28 The plaintiff submitted that Regulation 73(2) was applicable. He contended the relevant construction work was the building and construction of the M5 East Project in which the defendants, on the pleadings, had admitted they were involved; that his place of work was his truck and that he was on his way to the truck when injured. 29 The defendants submitted Regulation 73(2) was inapplicable as the plaintiff: (a) was not in access at the time of injury; and (b) was not engaged in construction work being carried out by the defendants when injured. 30 In Australian Iron Steel Pty Limited v Luna (1969) 123 CLR 305 at 310 Barwick CJ held (in respect of a statutory provision in similar terms): As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that job of work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s 40. Having thus delineated the place at which he is to work, the question whether or not means of access have been provided to that place, and if so, whether that means of access is safe so far as is reasonably practicable can be resolved. 31 In my opinion the plaintiff was engaged in a job of work in cleaning the wheels of his vehicle and was at the place at which he was to perform that work when injured. Accordingly Regulation 73(2) has no application and the allegation of breach of statutory duty fails. It is unnecessary to determine whether the plaintiff was engaged in construction work being carried out by the defendants when injured.

Contributory negligence 32 The defendants submitted the plaintiff was guilty of contributory negligence of 20%, because, knowing his boots were muddy, that the grid was wet, muddy and slippery, that there were only small sections of mesh on the grid and he was operating a hose he chose to: (a) wash the wheels while walking on the grid when he could have washed the wheels when standing outside the concrete barrier as Mr Robinson said was done by the designated wheel washers; (b) walk on the grid though he had not been directed by the defendants to clean the wheels; (c) walk backward across the grid. 33 The onus is upon the defendants to prove contributory negligence. I make the following comments as to the allegations of contributory negligence: (a) There was evidence from Mr Robinson that there were approximately 60 vehicle movements in and out of the Kingsgrove entrance per hour. Many if not most of the vehicles involved would have been large trucks. There was no evidence as to the precise distance between the concrete barrier and the pile of dirt and/or gravel. There was evidence that the distance between the concrete barrier and the water-filled barriers on the day of injury was such as to leave a relatively small distance on each side between the barrier and the plaintiff's truck. The photographs (exhibit A) suggest the distance between the concrete barrier and the pile of dirt and gravel was approximately similar to the distance between the concrete barrier and the water-filled barrier. In those circumstances there was a risk of grievous injury to a person standing outside the concrete barrier if struck by a truck. I do not consider the action of the plaintiff in not washing the wheels from outside the concrete barrier establishes a lack of reasonable care on his part. (b) The plaintiff had not been directly required by the defendants to clean the wheels of his truck but had been so directed by Pioneer. This direction accorded with Mr Robinson's intent. The plaintiff had been given no instructions by the defendants, Pioneer or his employer as to what course was to be taken in the event the designated truck washers were absent. In these circumstances in my opinion the fact that the plaintiff attempted to clean the wheels of his truck is not incompatible with the conduct of a prudent and reasonable person and is not evidence of contributory negligence. (c) However the defendant was well aware of the conditions in which he placed himself. He should have taken particular care in moving on the grid. The evidence establishes that he took one step backwards. He gave the following evidence: Q. Whilst you were walking across these metal grids, Mr Pollard, shortly before your accident were you looking at the grids? A. I was looking at the tyre. I may have - I may have looked at the grid when I had one step backward, yes.

Q. So do you say that you were looking at the grid as you walked backwards; is that right? A. I may have looked to see where I was stepping, yes.

Q. I take it though you weren't paying particular attention to the structure of the grid? A. No, sir, not before the accident.

In my opinion this evidence demonstrates lack of care on the part of the plaintiff and constitutes contributory negligence for the purposes of s 5R of the Act. I assess the plaintiff's contributory negligence at 10%.

Section 151Z(2)(c) of the Workers Compensation Act 1987 34 In their Amended Defence the defendants pleaded: (6) In the event that, because of the provisions of the Workers Compensation Act 1987 , the first and second defendants are not entitled to contribution from the plaintiff's employer, the first and second defendants rely on s 151Z(2)(c) of that Act such that to the extent that the first and second defendants are not entitled to recover contribution from the plaintiff's employer, the damages (if any) payable to the plaintiff are reduced accordingly. 35 Section 151Z(2) of the Workers Compensation Act 1987 provides relevantly: (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

… 36 The defendants, in support of their pleading, submitted: (a) Dependable, as the employer of the plaintiff, owed to him the employer's duty of care; (b) if the defendants were in breach of the duty of care owed by them then Dependable was in breach of its duty to the plaintiff; (c) the injuries sustained by the plaintiff on 16 March 2001 did not result in a degree of permanent impairment of the plaintiff that was at least 15%; (d) accordingly no damages could be awarded against Dependable - see s 151H of the Workers Compensation Act 1987 ; (e) thus the amount of contribution that the defendants were entitled to recover from Dependable as a joint tortfeasor pursuant to s 151Z(2)(d) was to be determined at nil; (f) the damages recoverable by the plaintiff from the defendants were to be reduced by: … the amount by which the contribution which the person would (but for this part) be entitled to recover from the employer as a joint tortfeasor. (g) the amount of contribution should be assessed at 25%. 37 The plaintiff conceded submissions [36] (a) - (f). He did however submit the contribution should be assessed in the range of 5% - 10% rather than 25%. 38 The apportionment of damages between joint tortfeasors involves: … a comparison both of culpability, that is, 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 subject to comparative examination - James Hardie and Coy Pty Limited v Roberts (1999) 47 NSWLR 425 at 446 [90]. The degree of liability must be assessed on the facts of each case - Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA 174 at [74]. 39 The defendants were responsible for the construction and implementation of the usage of the wash bay. Dependable had no direct involvement in the site or the wash bay nor was it involved in the plaintiff's day-to-day work. However it was the plaintiff's employer and as such owed to him a non delegable duty of care. The risk to the plaintiff only arose when the site was muddy and the designated wheel washers were not at their post. Although there was a risk of slipping if one walked on the rails in wet and muddy conditions the intermittent nature of the problem made it perhaps unlikely a site inspection by Dependable would have put it on notice of the risk. In such circumstances the plaintiff should have been instructed by Dependable that if he encountered site conditions that involved risk to him he should notify Dependable or Pioneer immediately. Had this been done it seems to me likely the risk would have been removed either by the plaintiff being instructed by Dependable or Pioneer not to leave his vehicle for the purpose of washing the wheels or as a result of discussions between Dependable and Pioneer and/or the defendants leading to an alternative solution. 40 In all the circumstances it seems to me appropriate to assess the percentage contribution of Dependable at 20%.

Background 41 The plaintiff is a single man born on 24 January 1976. 42 He left school after completing the School Certificate. He described himself as being a good / medium / average scholar. He has not obtained any tertiary or trade qualifications since leaving school though he did commence an apprenticeship as a butcher to his father. 43 The plaintiff's pre-injury work history was poor. At various times he worked as a cabinet marker, labourer and truck driver but prior to commencing with Dependable his work history was punctuated by long periods of unemployment. He explained this in part by difficulties he had getting to work due to losing his licence in 1994 for 2.5 years for driving whilst intoxicated and that in 1998 he travelled around Australia for 12 weeks. That explanation does not adequately explain the period 1998 - 2000 when, according to his taxation returns, which he agreed were accurate, his only income in the financial years ended 1998 and 1999 was social security benefits and in 2000 $4,852 gross. 44 In mid-2000 the plaintiff obtained employment with Dependable and he was hired to Pioneer to drive a concrete agitator truck. This work, he agreed was pretty easy - nothing heavy about it. He continued in that employment to the date of his accident. 45 The plaintiff, prior to his injury, enjoyed football, golf, weight training, motorcycling and motor cross. 46 The plaintiff gave evidence he had attended a general practitioner in August 1996 for a pulled muscle in his lower back; that problem healed promptly and he was not aware of any problem with his back prior to the subject accident. 47 The plaintiff consulted a general practitioner, Dr Eshrogi on 16 March 2001 following the accident. Dr Eshrogi treated him for a back strain and soft tissue injury at the left ankle. He certified the plaintiff fit for suitable duties from 19 March 2001 to 23 March 2001. The plaintiff then consulted Dr Eshrogi on 19 March when he was certified unfit for work from 17 to 19 March. On 27 March 2001 the plaintiff resumed driving the truck but was unable to continue after about half an hour due to pain. On 30 March 2001 Dr Eshrogi certified the plaintiff fit to resume his pre-injury duties on 2 April 2001. 48 By 3 April 2001 the plaintiff apparently felt he was able to return to truck driving. He telephoned Pioneer seeking to return to his pre injury job but was told there was no longer a truck available for him to drive as the truck he had been driving had been sent to a country depot. 49 Dr Eshrogi last saw the plaintiff on 6 April 2001 when he certified him fit for his pre-injury duties. 50 The plaintiff then consulted Dr Zecevic who he first saw on 13 June 2001 complaining of increasing back pain occasionally radiating to the right knee. Dr Zecevic apparently saw him on four occasions the last on 28 April 2001. The plaintiff was then next seen at Dr Zecevic's surgery on 4 February 2002. He has not presented there since that date. 51 On 31 October 2001 the plaintiff lodged an application for Workers' Compensation in respect of the injury. In March 2002 the claim was settled for $75,000. 52 Following the settlement the plaintiff purchased a new 250cc motorcycle which he said he enjoyed riding. He ultimately sold the bike in 2004 to pay debts. 53 Around July 2002 the plaintiff commenced employment in his brother's butcher shop. He said he worked there for 12 hours per week doing some butchering, sales work and delivering some light orders. He was paid, he said, approximately $150 per week. 54 On 3 June 2003 the plaintiff consulted Dr Maniam for the first time complaining of lumbar spine pain with radiation into the right posterior thigh. 55 On 26 June 2003 the plaintiff made a successful application for employment with Adecco, a labour hire company. In his application form he disclosed the prior back injury and that he had claimed compensation in respect of it. He stated he would have difficulty sitting or standing for two hours but would have no difficulty lifting 25 kilograms. He stated he had ceased working for Pioneer due to "reduced fleet size". 56 The plaintiff was hired by Adecco to Boral as a concrete agitator truck driver. He said he felt able to do the truck driving work though he had pain. 57 On 9 September 2003 the plaintiff was asked to do shovelling and labouring work at Boral to deal with a situation which arose when a bulldozer knocked down a concrete wall. He experienced a significant increase in back and leg pain doing this work, ceased work and consulted Dr Maniam. 58 On 24 November 2003 the plaintiff resumed part time work with Adecco doing administrative tasks. 59 By 14 January 2004 the plaintiff was working 12 hours per week in administrative duties and truck driving for 8 hours per week. He said he found the truck driving difficult. 60 In February 2004 the plaintiff ceased work due to back pain. He subsequently ceased employment with Adecco. 61 The plaintiff was paid Workers Compensation by Adecco. When payments ceased he resumed Newstart payments. He has kept the necessary journal of job applications in order to retain his Newstart allowance. 62 The plaintiff continues to complain of back and leg pain. His medical care is provided by Dr Maniam who generally sees him every two months. The plaintiff said he is unable to continue his sporting activities though he does swim. He owns a motor car and agreed he was able to drive long distances and had been doing so most of the time since the accident. Medical 63 Considerable medical evidence was placed before the Court. As is often the case there was a divergence of opinion between the experts. Neither counsel contended for the most extreme positions presented by the evidence. Each accepted the plaintiff had some pre-existing spinal pathology and that there was some ongoing partial incapacity attributable to the fall on 16 March 2001. The extent and impact of the ongoing incapacity was the subject of dispute particularly in respect of the plaintiff's work capacity. 64 I have considered the evidence of the medical experts and associated health care professionals. I have had particular regard to the opinions of the treating specialist, Dr Maniam and Dr Bodel whose report was obtained by the defendants but relied upon by the plaintiff. I have also had regard to the evidence of the plaintiff and his mother and their demeanour when giving evidence. I have concluded, after weighing all of the evidence that the probabilities are as follows: (a) the plaintiff has a pars interarticularis defect and a spondylolisthesis in the lumbar spine. These conditions pre-existed the fall on 16 March 2001 but were asymptomatic; (b) there was no evidence the plaintiff had suffered a previous injury to his back or back pain other than in relation to a temporary muscle strain in 1996; (c) in the fall on 16 March 2001 the plaintiff sustained damage to the L4/5 and L5/S1 discs. The damage presented radiologically as a mild disc bulge at L4/5 with a moderate disc bulge at L5/S1. There was an absence of neurological deficiencies on clinical examination. There was some aggravation of the pre-existing condition of the spine as well; (d) the disc injuries were not severe but did give rise to pain in the back and legs which continues to some degree to the present time. The lesion at L5/S1 appears to be reducing in size which is a hopeful prognostic sign; (e) the injury on 9 September 2003 exacerbated the condition which was the consequence of the injury on 16 March 2001; (f) the aggravation which occurred on 9 September 2003 was of a temporary nature. I accept the plaintiff's evidence he had returned to his pre 9 September 2003 condition within 12 months of that event; (g) I accept the plaintiff was concerned and unhappy to have sustained injury and lost his job driving. The plaintiff did not seek any psychiatric assistance. I do not accept he has or is likely to suffer any significant psychiatric condition as a result of the fall; (h) the defendant submitted the plaintiff exaggerated his symptoms and incapacities. This was the opinion of a number of medical and health professionals who had examined the plaintiff. I accept that submission. The plaintiff's mother's evidence was that for the first three months following the injury the plaintiff couldn't do anything at all, he was pretty much bedridden on his back most of the time. The plaintiff gave similar evidence. He said it was very difficult to do anything other than lie on his back for the first three months, that he could barely walk or move during that time. This is to be contrasted with the objective facts revealed by Dr Eshrogi's certificates and the fact the plaintiff on 3 April 2001 was representing himself to Pioneer as fit to resume his pre-injury employment. There was also confirmation in the fact that the plaintiff, on settling his Workers Compensation claim in March 2002 proceeded to buy a new 250cc motorbike which he enjoyed riding. This was contrary to the history he gave to Dr Maniam that his injuries precluded him from riding a motorbike and was inconsistent with the level of disability complained of; (i) in my opinion the plaintiff was for all practical purposes totally unfit for work from the date of injury to 2 April 2001 and for approximately 12 months following the aggravation on 9 September 2003. Otherwise he has been fit to perform a wide range of employment duties including (as he conceded he has returned to his pre 9 September 2003 condition) work as a concrete agitator truck driver and most forms of light to moderate work, including, in particular, work as a courier, salesman and the like. He is however permanently unfit for employment which involves work of a heavy manual nature; (j) there is a possibility that had the plaintiff not suffered the injury on 16 March 2001 the pre-existing condition ultimately would have incapacitated him for heavy manual work in any event; (k) it is improbable the plaintiff will require spinal surgery as a result of the fall on 16 March 2001.

Non economic loss 65 The maximum amount of damages that may be awarded for non economic loss (s 16 of the Act) is $427,000. 66 The plaintiff has submitted that his non economic loss should be assessed at, at least, 35% of a most extreme case. 67 The defendants have submitted the appropriate assessment is 30%. 68 I accept the defendants' submission which appears to me an appropriate assessment of non economic loss in this case. 69 The award under this head of damages is accordingly $98,000.

Past out of pocket expenses 70 This head of damage is agreed at $4,925.

Future out of pocket expenses 71 The plaintiff claims future out of pocket expenses comprising a number of categories which are discussed hereunder: (a) Domestic equipment. This claim is based on a report of the plaintiff's occupational therapist. The defendant's occupational therapist does not recommend the provision of that equipment save for a stool. The plaintiff is able to care for himself. He gave no evidence he required any of these items. I reject this part of the claim including a claim for a small hoist which was based upon a suggestion of the defendant's occupational therapist and not included in the plaintiff's occupational therapist's list; (b) Occupational therapy. There is no evidence from the plaintiff which indicates any reasonable need for the provision of occupational therapy. This claim is rejected; (c) Driving assessment, driving mirrors, adjustable back cushion. The plaintiff has his own motor vehicle which he is able to drive. He gave no evidence that he required a driving assessment, driving mirrors or a cushion. I do not accept this part of the claim; (d) There is a claim for consultation with general practitioner four times yearly and an orthopaedic specialist once per year for life. The plaintiff at present does not consult any general practitioner for his back but he does see Dr Maniam. I award for medical attendance $5,000; (e) A claim is made for physiotherapy and hydrotherapy. The plaintiff is not receiving physiotherapy or commercially provided hydrotherapy. There is a possibility such may be required in the future and I allow against that possibility $5,000; (f) A claim is made for analgesia. The plaintiff may require analgesics from time to time. I allow this claim at $10,000; (g) There is a claim for 20% chance that the plaintiff will need to consult a psychiatrist and for antidepressants. The plaintiff has not required psychiatric treatment in the past. It is unlikely it will be required in the future. I allow against the possibility $500; (h) A claim is made for 50% chance of spinal surgery. I regard the likelihood of spinal surgery, on the evidence, as improbable. However against the slight possibility I allow $1,000; (i) Total future out of pocket expenses is $21,500.

Attendant care services 72 It is common ground the plaintiff's mother provided some gratuitous attendant care services for the plaintiff following his injury. 73 The plaintiff makes a claim for those services pursuant to s 15 of the Act as follows: Period Hours/Week Weeks Amount/Hour Total 16/03/01 - 30/04/01 23.5 6.5 $18.00 $2,749.50 01/05/01 - 30/06/01 14.5 9.0 $18.00 $2,349.00 01/07/01 - 01/06/03 14.0 100.0 $19.00 $26,600.00 02/06/03 - 08/09/03 7.38 13.0 $20.00 $1,918.80 Total $33,617.30

74 Section 15(3) of the Act provides: Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. 75 In Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [165], [167], [171] and [172] it was held that no compensation is recoverable if the services are provided for less than 6 hours per week and no compensation is recoverable if the services are provided for less than 6 months. The prohibition continues to apply even if the plaintiff has crossed the 6 hours, 6 months threshold on a prior occasion. 76 The defendants submit the plaintiff is not entitled to any amount for past care as he does not overcome the statutory threshold imposed by s 15(3) of the Act. 77 The relevant evidence of the plaintiff was that he received at least 2 hours assistance per day from his mother, 7 days per week for "four, five or six months" and that the assistance then decreased to sessions of 1 - 1.5 hours once or twice per week. The evidence of the plaintiff's mother was that she provided assistance for 2 - 3 hours per day for the first 3 months following injury thereafter several times per week for an hour or two together with 2 - 3 hours at weekends and then the situation changed with the care reducing again after 9 months. The plaintiff's occupational therapist's report supports the claim. The defendant's occupational therapist considered that the plaintiff's need for care did not overcome the statutory threshold. 78 The evidence does not satisfy me that services of 6 hours or more were provided for 6 months or more as required by s 15(3) of the Act. In my opinion the evidence of the plaintiff's mother is exaggerated. The plaintiff's evidence does not establish, on the balance of probabilities, that the statutory threshold was reached. I do not accept the evidence of the occupational therapist qualified for the defendant. I reject this head of claim.

Past wage loss 79 The plaintiff claims past wage loss calculated at the earnings which the plaintiff would have had, uninjured, if employed as a concrete agitator truck driver from 16 March 2001 to the date of judgment less any actual earnings during that period. The plaintiff has indexed the earnings based on average gross weekly earnings of employees in New South Wales to allow for wage increases since 16 March 2001. The defendants submit that but for a period of 8 weeks following the initial injury and the period of one year following the aggravation on 9 September 2003 the plaintiff should be assessed on the basis he had a significant retained earning capacity.

80 I assess past wage loss as follows: (a) 17 March 2001 - 12 May 2001: 8 weeks at $615.00 per week: $4,920.00; (b) 13 May 2001 - 26 June 2003 at $200.00 per week: $23,000.00; (c) 27 June 2003 - 9 September 2003: no loss as employed by Adecco; (d) 10 September 2003 - 10 September 2004: full loss for 52 weeks at approximately $675 per week = $35,100.00 less the Workers' Compensation payments from Adecco $22,894.00: $12,206.00; (e) 11 September 2004 - 25 January 2007: at $200.00 per week: $24,600.00; (f) the total allowance for past wage loss is $64,726.00; (g) I allow interest on past loss of wages at 4.67%: $3,022.00; (h) I allow loss of past superannuation $5,502.00; (i) I allow interest on loss of past superannuation at 4.67%: $256.00.

Impairment of future earning capacity 81 The plaintiff gave evidence he enjoyed his job as a concrete agitator truck driver and had intended to continue in that employment. I accept that evidence particularly having noted the contrast between his commitment to that job compared to his prior work record. 82 However whether, uninjured, the plaintiff would have continued in that work is uncertain. He was not directly employed by Pioneer. A dispute between Pioneer and Dependable could result in the job being lost. Similarly a downturn in the building and construction industry, ill health on his part or the loss of his licence (this had occurred on at least two occasions) or an altercation between him and Pioneer or Dependable among other possibilities could have seen the job lost. If the plaintiff had lost his job as a concrete agitator truck driver his employment record irrespective of injury may have resumed the appearance which it had taken prior to the 9 months he worked for Dependable. Regard must also be had to the usual vicissitudes in so far as such have not been referred to above. This, it seems to me, makes it difficult to accept the proposition that uninjured the plaintiff would have earned the wages of a concrete agitator truck driver from the date of injury to age 65. 83 There is also difficulty in determining what value should be placed upon the plaintiff's retained future earning capacity. I have found he could do his pre injury job as a concrete agitator truck driver. If he obtained such a job he would suffer no loss of income. I have found he could do other jobs the income from which would be similar to that of a concrete agitator truck driver. If he obtained such employment he would suffer little or no financial loss. 84 However he has been out of the workforce for some time and may have difficulty finding employment. The job journal suggests this may be the case although the plaintiff's motivation to find employment may well improve when this case is behind him. Nevertheless he lacks any formal job qualifications and will not be able to fall back upon heavy manual work should other employment not be available to him. If that scenario eventuates a not insignificant wage loss could result. 85 The situation is further complicated as there is the possibility the pre-existing back condition may result in incapacity in the future. 86 It is impossible to confidently predict what the plaintiff's future may hold. There are sufficient imponderables to make it appropriate to award a cushion rather than to attempt a precise mathematical approach to this problem. 87 The defendant has submitted a cushion of $50,000 would be appropriate. In my opinion a somewhat higher assessment of the plaintiff's possibility of loss is required. In my opinion the sum of $120,000 in which I would include the plaintiff's entitlement to compensation for loss of future superannuation would be appropriate and I award that sum.

Fox v Woods 88 This is agreed at $333. 89 I summarise my assessment of damages as follows:

Item Amount Non economic loss $98,000.00 Past out of pocket expenses $4,925.00 Future out of pocket expenses: $21,500.00 Attendant care services NIL Past wage loss $64,726.00 Interest $3,022.00 Past loss of superannuation $5,502.00 Interest on past superannuation $256.00 Impairment of future earning capacity $120,000.00 Fox v Woods $333.00 Total $318,264.00 Less contributory negligence 10% $31,826.40 Total $286,437.60 Less 20% for employer's liability $57,287.52 Judgment sum total $229,150.08

Orders 90 The orders of the Court therefore are: 1. Verdict and judgment for the plaintiff in the sum of $229,150.08. 2. The defendants to pay the plaintiff's costs. **********

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