Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust

Court of Appeal (NSW)|2017-10-04|Before: Beazley ACJ, McColl JA, Meagher JA

65 NSWLR 1; [2003] NSWCA 47 Vincent v Woolworths Ltd [2016] NSWCA 40 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA Category: Principal judgment Parties: Rail Corporation New South Wales (Appellant) Alan Jerrad Donald (First Respondent) Staff Innovations Pty Ltd t/as Bamford Family Trust (Second Respondent) Representation: Counsel: A Casselden SC; J Malouf (Appellant) D A Campbell SC; D L Del Monte (First Respondent) M Windsor SC; R Perla (Second Respondent)

Solicitors: Hicksons Lawyers (Appellant) Acorn Lawyers (First Respondent) Moray & Agnew (Second Respondent) File Number(s): 2017/51509 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Alan Donald v Rail Corporation of New South Wales (No 11) [2016] NSWSC 1897 Date of Decision: 23 December 2016 Before: Campbell J File Number(s): 2010/349997

[This headnote is not to be read as part of the judgment] The first respondent was employed by the second respondent, which hired out his labour to the appellant. The work involved removing old railway sleepers and replacing them with new sleepers. The first respondent worked as a labourer and, in particular, although not solely, a jackhammer operator. The first respondent brought proceedings against the appellant and second respondent for injuries he claimed he suffered in the course of and due to the nature and conditions of his employment. The primary judge held that the first respondent sustained injury due to the negligence of the appellant. His Honour also entered judgment against the second respondent. The appellant appealed and the second respondent cross-appealed against the primary judge's findings of liability. The parties raised a number of issues on the appeal and cross-appeal. In essence, the issue of whether the appellant breached its duty of care to the first respondent concerned whether the first respondent was required to work without the benefit of adequate rest breaks in circumstances where the worker with whom he was teamed did not undertake the full range of tasks involved in the removal and replacement of sleepers and, in particular, did not jackhammer. There was also an issue as to whether the risk of harm was 'not insignificant'. The second respondent also challenged whether it breached its duty of care to the first respondent. The issue on causation concerned whether the primary judge erred in accepting the evidence of one of the medical experts that the first respondent suffered an internal disc disruption, where there was conflicting evidence. The parties also challenged the primary judge's finding that the first respondent was not contributorily negligent. Beazley ACJ (McColl and Meagher JJA agreeing) held, dismissing the appeal: (i) The first respondent's case was based on the nature and conditions of his employment, and not on his having sustained a frank injury: [29]. (ii) The evidence did not support the inference drawn by the primary judge that the first respondent may have been called upon to perform more than his share of the work clearing away the rubble created by the jackhammering. Nor did the evidence support the inference that the first respondent would have been, at least frequently, left to his own devices to perform all of the tasks required to remove and replace the sleepers. To the extent that the primary judge based his finding that the first respondent would not have received the benefit of the breaks inherent in the system of work on these inferences, the finding was unsupported: [76]-[87]. Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19; Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 considered. Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 referred to. (iii) However, the evidence did support the primary judge's finding that the appellant was negligent in failing to provide the first respondent with a safe system of work, where he was the only worker in his team of two required to jackhammer and where he undertook additional heavy lifting without assistance, which under the general de facto system of work was undertaken by two workers: [111]-[131]. TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 considered. (iv) The risk of personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work was not insignificant: [138]-[143]. Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12; Shaw v Thomas [2010] NSWCA 169; South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 considered. Sibraa v Brown [2012] NSWCA 328; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361; Bitupave Ltd v Pillinger (2015) 72 MVR 460; [2015] NSWCA 298; Vincent v Woolworths Ltd [2016] NSWCA 40; Gulic v Boral Transport Ltd [2016] NSWCA 269 referred to. (v) The primary judge did not err in accepting the evidence of one of the experts that the first respondent suffered an internal disc disruption which progressed to a disc protrusion, and gave adequate reasons for doing so. Nor did the primary judge err in accepting the evidence of one of the experts that cumulative trauma could be a cause of the first respondent's injury: [179]-[192]. (vi) The primary judge did not err in finding that the first respondent was not contributorily negligent. The first respondent could not be expected to regulate his own work practices so that they were safe for him: [201]-[205], [229]. Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34; Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72; Jurox Pty Ltd v Fullick [2016] NSWCA 180 considered. (vii) The primary judge did not err in finding that the second respondent breached its non-delegable duty of care to the first respondent, notwithstanding that it did not devise or have direct control over the system of work under which the first respondent was required to work: [218]-[228]. Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61; Lepore v State of New South Wales (2001) 52 NSWLR 420; [2001] NSWCA 112; TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; [2004] HCA 29; Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14; Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 considered.

Judgment

BEAZLEY ACJ: The first respondent/plaintiff (Mr Donald) brought proceedings against the appellant, Rail Corporation New South Wales (Rail Corp), and the second respondent, Staff Innovations Pty Ltd (Staff Innovations), for injuries he claimed he suffered in the course of his employment with Staff Innovations, in circumstances where his services were hired out by Staff Innovations to Rail Corp. In that capacity, Mr Donald worked as a labourer and, in particular, although not solely, as a jackhammer operator.
Mr Donald contended that he suffered an injury to his back due to the nature and conditions of his employment, which progressed to an external disc protrusion. On 20 April 2010, Mr Donald underwent a lumbar decompression and spinal fusion to free up the L5/S1 nerve root and to stabilise that segment of his back.
The primary judge, Campbell J, held that Mr Donald sustained injury due to the negligence of Rail Corp and entered judgment for him against Rail Corp in the sum of $1,236,913.00. His Honour also entered judgment against Staff Innovations in the sum of $861,108.00, in accordance with the Workers Compensation Act 1987 (NSW), s 151A.
Rail Corp has appealed against Campbell J's finding of liability against it. Staff Innovations has cross-appealed against his Honour's finding of liability as against it. Both Rail Corp and Staff Innovations challenged his Honour's conclusion that Mr Donald was not contributorily negligent. Neither Rail Corp nor Staff Innovations appealed against his Honour's apportionment of liability as between them, nor his Honour's assessment of damages, should either be unsuccessful in its challenge to his Honour's findings on liability.

Legislative framework

The claimed liability of Rail Corp is governed by the Civil Liability Act 2002 (NSW), Pt 1A, the relevant provisions of which are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). ... (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. … 5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task. (2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A. 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
As it was not suggested that Mr Donald was 100 per cent contributorily negligent, s 5S, which provides that contributory negligence assessed at 100 per cent may defeat a claim, is not relevant to the issues before the Court.
The Civil Liability Act does not apply to the claimed liability of Staff Innovations, which is governed by the Workers Compensation Act 1987 (NSW): see the Civil Liability Act, s 3B(1)(f). As this Court noted in South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, at [115], the Workers Compensation Act: "… modifies common law principles, particularly in relation to the assessment of damages. It does not, however, modify the common law principles with respect to duty, breach of duty or causation."
Relevantly, the Workers Compensation Act, s 151N provides for the assessment of contributory negligence as follows: "151N Contributory negligence - generally (1) The common law and enacted law as to contributory negligence apply to awards of damages, except as provided by this section …" It has not been suggested that subs (2)-(5) of that section apply to the present case.
Accordingly, common law principles of negligence apply to the determination of Staff Innovations' liability, as well as the question of whether Mr Donald was contributorily negligent.

Issues on the appeal

The specific questions raised on Rail Corp's appeal and, where these questions were also raised by Staff Innovations, Staff Innovations' cross-appeal, are as follows:

As to liability 1. Whether the primary judge's findings at [89] and [106] which are set out below and which the appellant characterised as inferential findings of fact, could reasonably have been made on the evidence: appeal grounds 1(a) and (b); 2. Whether his Honour's further finding at [106] that Mr Donald would not have received the benefit of the rest breaks inherent in the system of work of two men working together could reasonably have been arrived at on the evidence: appeal ground 1(c); 3. Whether his Honour should have found that Mr Donald received adequate rest breaks in circumstances where he performed the task of jackhammering and his co-worker, Mr Gonzales, cleared away the rubble: appeal ground 2; 4. Alternatively, whether his Honour erred in finding that Mr Donald would not have received adequate rest breaks when the evidence suggested that he would have received breaks when rotating between the tasks of jackhammering and clearing away the rubble: appeal ground 2A; 5. Whether his Honour erred in finding, at [108], that the risk of harm was not insignificant: appeal grounds 3(a) and 4; 6. Whether his Honour erred in finding at [109] that a "reasonably adequate system of task rotation or in built rest breaks would have operated to, if not eliminate, at least substantially reduce the risk of harm": appeal grounds 3(b) and 4;

As to causation 1. Whether his Honour erred in finding that Mr Donald sustained an internal disc disruption at L5/S1 on 13 May 2008 with no frank disc protrusion where the expert evidence did no more than give rise to conflicting inferences of equal degrees of probability which did not pass from the realm of mere conjecture into the realm of inference: appeal grounds 5 and 5A; 2. Alternatively, whether his Honour erred in finding that Mr Donald's internal disc disruption, which progressed to a frank disc protrusion, was caused by Rail Corp's negligence in circumstances where his Honour failed to assess or consider the competing expert opinions of Dr Maxwell, an orthopaedic and spinal surgeon, and Mr Horrigan, an expert ergonomist, and gave no reasons for the acceptance of the hypothesis of Dr Bodel, an orthopaedic surgeon: appeal ground 5B; cross-appeal ground 4; and

As to contributory negligence 1. Whether his Honour erred in finding that Mr Donald was not contributorily negligent in respect of his injury: appeal ground 6; cross-appeal ground 5.

Staff Innovations' cross-appeal

Staff Innovations raised the following additional grounds on the cross-appeal, namely, that his Honour erred: 1. In finding that the scope of Staff Innovations' duty to Mr Donald lay within the negligence of Rail Corp: cross-appeal ground 1; 2. In finding that Staff Innovations breached its duty of care to Mr Donald: cross-appeal ground 2; and 3. In not making a finding that Mr Bamford, on behalf of Staff Innovations, had satisfied himself that Rail Corp's system of work was safe by making enquiries with Mr Donald: cross-appeal ground 3.

Notice of contention

By notice of contention, Mr Donald raised two matters in respect of which he contended his Honour ought to have made the following factual findings: first, a finding that Mr Donald continued to operate the jackhammer, moving further along the concrete, whilst Mr Gonzales removed the concrete broken up by the jackhammer; and secondly, a finding that Mr Gonzales placed the bags into which the concrete was placed to the side of the track for later collection.

Summary of issues

The issue of whether Rail Corp breached its duty of care essentially revolved around the question of whether Mr Donald was required to work continuously without the benefit of rest breaks in circumstances where Mr Gonzales, who was employed by Rail Corp and with whom he was teamed, did not undertake the full range of work activities involved in the removal and replacement of sleepers and, in particular, did not undertake any jackhammering, as was the position in other teams, where the jackhammering was shared between two team members. There was also a question as to whether the risk of harm was "not insignificant": see the Civil Liability Act, s 5B(1)(b). The issue on causation was whether his Honour erred in accepting Dr Bodel's evidence that Mr Donald had suffered an internal disc disruption which caused his subsequent disability.
The issue of whether Staff Innovations breached its duty of care concerned, in essence, the scope of its duty.

Mr Donald's case as run before the primary judge

A preliminary question was raised on the appeal as to the nature of the case that was run by Mr Donald at trial and, in particular, whether the case was one based on the nature and conditions of his employment or whether the allegation was of a frank injury sustained on 13 May 2008. It is convenient to deal with that issue at the outset, because, although not directly the subject of a ground of appeal, it is relevant to understanding the evidence, his Honour's judgment as it related to breach of duty and, more particularly, causation and the challenges made to his Honour's factual findings.
Mr Donald's case, as pleaded in the second further amended statement of claim, was based on the nature and conditions of his employment, which he alleged resulted in his suffering severe injury. Mr Donald pleaded that in his employment as a labourer contracted to work for Rail Corp, the work he was required to undertake was "lifting, carrying and jack hammering involved in the removal and installation of sleepers and manually lifting such sleepers". Mr Donald alleged that this work involved jackhammering for many hours at a time and that in May 2008, he suffered injury to his back, which was aggravated in June 2008.
At trial, the following pleaded particulars of the claimed negligence became the principal focus of the claim: "k. [Rail Corp failed] to institute, devise and or maintain a safe system for working with the jackhammer including limiting the amount of time over which the jackhammer should be used continuously and rotating periods of jackhammering use with periods of quite different activity that would provide some relief. … r. [Rail Corp provided] inadequate rotation of the use of the jackhammer."
It is also relevant to refer to the following three further pleaded particulars of negligence: "s. [Rail Corp required Mr Donald] to perform repetitive lifting tasks. t. [Rail Corp overfilled] bags of concrete rubble. u. [Rail Corp failed] to provide [Mr Donald] with any adequate manual assistance."
Rail Corp submitted that although the case had been pleaded as one based on the nature and conditions of Mr Donald's employment, it appeared that his Honour based his determination on there being a frank injury sustained on 13 May 2008. Rail Corp contended that this was apparent from his Honour's finding at [72] that: "… Mr Donald did suffer low back injury in the course of his employment on 13 May 2008. The nature and the extent of the injury will be discussed later in these reasons. But given Mr Thompson's evidence it was probably more significant than Mr Donald's own account suggests."
Mr Donald submitted that his pleaded case was one based on the nature and conditions of his employment and was so conducted at trial. In this regard, he said that there was a focus on the failure to rotate and rest from jackhammering. The relevance of 13 May 2008 was that that was the date he noticed the onset of his injury whilst he was jackhammering. Mr Donald also referred to senior counsel's brief opening at the commencement of the trial, where he said that the case was: "… that the nature and conditions of [Mr Donald's] work that led up to the injury … in May is the principal injury which obviously flared up again the moment he tried to do some activity in June."
Mr Donald also pointed to his evidentiary statement, tendered at trial, which referred to the nature and conditions of his employment. Rail Corp's records revealed that Mr Donald reported a sore back at the end of the shift on 13 May 2008, but it had no record of such an injury on any other occasion. It should be noted that the primary judge, at [66], rejected that Mr Donald sustained a second injury on 12 June 2008, as he had alleged, and this is not contested on the appeal.
There was an exchange between the primary judge and Mr Donald's counsel during the trial as to what Mr Donald's case was and, in particular, whether it was being alleged that there was a frank injury in May 2008. In response to his Honour's enquiry, counsel stated that there was "no particular lift and twist" involved on that date. Counsel then referred to the pleadings and, in particular, to para 3 of the second further amended statement of claim, as set out above at [16]. Counsel made the same points in his closing written and oral submissions.
Mr Donald pointed to his Honour's statement at [24] that "[Mr Donald's] case is that he suffered back injury because of the nature and conditions of his employment at Rail Corp" and to his Honour's description of the work involved in the removal and replacement of the sleepers as "very heavy labouring work".
It should be noted that at [27], his Honour observed that: "A case pleaded as a 'nature and conditions count' normally implies the absence of a frank injury. Such a case is one of injury received through the accumulation of minor traumata. Notwithstanding his pleading, Mr Donald relies upon the occurrence of two incidents at work." His Honour then discussed two incidents on 13 May 2008, at [27], and 12 June 2008, at [30]-[31].
However, in the section of the judgment entitled "Findings on evidence", to which Mr Donald also referred, his Honour, having rejected at [66] that no specific injury occurred on 12 June 2008, continued: "67. … much of [the] contemporaneous material strongly points to the occurrence of an injury, or the culmination of an injurious process, on 13 May 2008 … 68. Moreover, all of the contemporaneous records and histories given to doctors around this time are consistent with [Mr Donald's] evidence about what happened on 13 May 2008, namely that he suffered some sort of back injury jackhammering … it is not implausible that performance of heavy labouring work of the type Mr Donald was required to perform in the course of his work at Rail Corp will produce a back injury."
Mr Donald further submitted that, as was apparent from his Honour's finding as to the risk of harm and the occurrence of injury, his Honour's determination was based on the nature and conditions of Mr Donald's employment. At [88], his Honour identified: "… the relevant risk of harm as the risk of Mr Donald suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work." His Honour further observed in that paragraph: "As his case was refined by the trial process, the precautions for which he contended were … the institution of a system of task rotation."
Mr Donald pointed out that there was no challenge on the appeal to his Honour's identification of the relevant risk of harm, which was not limited to a risk of injury from the use of a jackhammer.
When his Honour came to deal with the issue of Rail Corp's breach of duty, at [92]-[109], it is also apparent that he was dealing with the issue on the basis that it turned on the nature and conditions of Mr Donald's employment.
In my opinion, having regard to the pleadings, submissions and evidence at trial, and his Honour's reasons to which I have referred, the case was conducted on the basis that Mr Donald sustained injury to his back in the course of the work he was performing with Rail Corp because of the nature and conditions of his employment, with a specific occurrence of pain on 13 May 2008.

General system of work

Mr Donald was employed by Staff Innovations, who hired his labour to Rail Corp to work in maintaining the City Circle of the Sydney Metropolitan Railway Line. Rail Corp generally had possession of the track for about four hours each day from approximately 12:30am. Mr Donald's work involved the removal of old timber sleepers and their replacement with polymer sleepers. The task of removing the old timber sleepers involved jackhammering so as to release the sleepers from their concrete beds. The sleepers were cut by a chainsaw, and manually lifted out of position and placed to the side of the tunnel for later removal.
The sleeper beds were cleaned up by a process called "scrabbling", which involved jackhammering the underlying concrete to smooth it out for the purpose of laying the new polymer sleeper. The new sleepers were then placed into position and concreted into place. The rubble produced by this process was shovelled into bags, which were later loaded onto a truck for removal. The removal of the old sleepers occurred on two alternate nights of the week and the installation of new sleepers occurred on the intervening alternate nights of the week.
The primary judge at [24] described the work involved in removing the old timber sleepers as "very heavy labouring work". His Honour also considered that the shovelling of the rubble into bags, which his Honour noted could weigh up to 30kg when filled, was also "heavy work".
The general practice was that the workers were paired in teams and the jackhammering and cleaning up were shared between the two team members. It took somewhere between 10 and 25 minutes to jackhammer out the sleeper, depending on the skill of the person doing the jackhammering, although Mr Mitic, Mr Donald's team leader, said it could take up to 45 minutes.
According to Mr Mitic, the employees were instructed that the jackhammering work was to be rotated every 20 minutes. Mr Mitic said that this was the 'rule' and that all the men, including Mr Donald, knew this. Nonetheless, the system, in practice, was more ad hoc. Mr Thompson, a group leader and Mr Donald's superior, said that it was up to the jackhammer operator as to how frequently and for how long he would take a break, as long as four half sleepers were removed per shift.
Mr Thompson and Mr Jim Iordanidis, who was a team leader in 2008, said that 'breaks' inhered in the system itself, as after a sleeper was jackhammered out, it was necessary for the rubble created by the jackhammering to be cleaned up. Accordingly, the person operating the jackhammer would rest whilst the labourer would clean away the rubble. This meant that the jackhammer operator could not continuously jackhammer. Mr Mitic said that the 'rule' was that the bags of rubble would be filled to between approximately 15 to 20kg. Mr Mitic and Mr Thompson said that there was no pressure to work quickly.

The work practices as they applied to Mr Donald

The extent of the work that Mr Donald was required to undertake was different from the general de facto system described above, in that Mr Gonzales, with whom he was teamed, did not do any jackhammering work. This meant that as between the two men, there was no rotation of the jackhammering and cleaning tasks. Save for his Honour's comments in the portions bolded in those paragraphs which are the subject of challenge in appeal grounds 1(a) and (b), there was no dispute about this, as was explained by his Honour at [89] and [106], which are set out below.

The evidence as to the system of work

Mr Donald's evidence comprised his evidentiary statement and his oral evidence at trial. In his evidentiary statement, Mr Donald said that he was teamed with Mr Gonzales, who refused to do any of the jackhammering. Mr Donald said that he complained about this but that he got no response. He said, "they just left me with Gonzales and I didn't raise it again because I didn't want to 'ruffle any feathers'". Mr Donald then described the process involved in the removal of the sleepers as follows: "41. The removal … of the sleepers involved using the jackhammer … to cut around the edges of the sleeper to separate it from the concrete. 42. After [Mr Gonzales] had used a chain saw to cut out a block approximately 10 centimetres long from the centre of the sleeper, I would manually lift out each of the now separated parts of the sleeper and drop them on the road bed beside the rail lines. 43. I had to lift out each section of the cut sleeper, apart from the small centre section, without assistance. 44. [Mr Gonzales] would only lift out the very small centre section that had been cut from the sleeper and would leave the two large end sections for me to lift out. 45. Then, again using the jackhammer, I would have to thoroughly clean all the vertical surfaces and edges of the cavity from which the sleeper had been taken out, ready to put the new plastic sleeper in place. … 51. In the course of a normal night's work I would remove and replace about eight (8) sleepers, using the procedure outlined above. 52. During this period of time I would work continuously with the jackhammer, with the only breaks being when I was lifting and carrying. … 55. The jackhammer was a 'ninety pounder' - weighing a little over 40 kg, a bit more with the spade pick attached. Because of its size and weight it should have always been a two-man lift on to and off the tray of the truck and for carrying it, and it was a two-man lift for the teams that had proper assistance. But with me, I had to do my own lifting and carrying because [Mr Gonzales] wouldn't help me. I would lift the hammer off the truck and flick the nose onto the rails and try and slide it down like that to my work station, which could be up to 15 metres away. This was an awkward process because the hammer would tend to want to slide in towards the centre of the rails and I would end up just carrying it some of the way. The process was repeated at the end of the shift. Even if the truck was backed down to where I was working I still had to lift the hammer on to the truck by myself. … 58. [Mr Gonzales] did none of the jackhammer work and only a small part of the other lifting and carrying … he would lift and carry only the small centre section of the sleeper that he had cut out and would leave the much longer and heavier sections for me to lift and carry. I didn't have to carry them very far at all, just put them off to the side where I was working and at the end of the shift the truck would reverse along the rails and I would lift them onto the truck. … 62. In addition to the lifting and carrying described above, I would also have to carry bags of rubble that had been collected and were to be transferred to the truck so they could be taken back to the depot for unloading."
In cross-examination, Mr Donald said that he worked with Mr Gonzales for about 16 months. He also said that there was jackhammering for three nights and that there was only one night when there was no jackhammering. This evidence was not consistent with the other evidence in the case to which I have already referred.
Mr Donald was also cross-examined as to the cleaning work involved in removing the sleepers. He accepted that the system was that the person who filled the bag with the rubble carried it to the position from which it would be collected later. Mr Donald was then cross-examined as follows: "Q. … The cleaner's job, we've heard thus far, involved putting the broken concrete and any rubble that came with it into a bag; is that right? A. Yes. Q. The bag was filled by the cleaner and placed by him in a particular position near the wall for collection at a later time by the truck; correct? A. Yes Q. So the person doing the lifting of the bag was the very person who had to carry it from the point where it had been filled to the point where it would later be collected? A. Not in my case it wasn't. Q. It wasn't? A. Because he would put it next to the wall and then I would pick it up and put it in the truck, because he wouldn't do any part of that job, because he was railway. … Q. … It was the system, was it not, that the person who filled the bag, the cleaner, carried it to the position from which it would later be collected that night? A. He was sitting on the rail and-- Q. I'm talking about the system, Mr Donald. A. Well, the system for other groups was that. … Q. But in your case you say - you and you alone, was it? Anyone else get this same problem or only you? A. No, it was me alone … everyone else had a contractor to interchange the hammering and have nights off, where I never got that. I was hammering and picking up the waste at the end of the shift. [Mr Gonzales] would pick his gear up after he had packed the bags, put it against the wall and just walk out of the tunnel and leave me with the whole job."
There was further cross-examination on this issue, as follows: "Q. You say that you were forced not only to do the jack hammering but to carry the bags across as well? A. There was sometimes a couple of bags there left closer to the rail that I've had to pick up and the wooden sleepers, yes. Q. You say that this was an occasional circumstance where a bag had not been moved, is that what you're saying? A. No, it was on a regular basis with Mr Gonzales."
Mr Donald said that Mr Gonzales was overfilling the bags, and that although he had asked Mr Gonzales to help him on numerous occasions, Mr Gonzales did not like him requesting help and told him "to eff off". Mr Donald said that after that, Mr Gonzales "just [took] off on me, but before that occasion he was filling the bags … The person who had to pick them up at the end was copping it". He was then asked: "Q. Your proposition then is that he was not only not doing his job, but he was making it deliberately difficult for you to do it? A. Yes."
Mr Donald said in cross-examination that in a lot of teams, one man would work one night jackhammering and his partner would swap with him the next night, so that they would interchange the jackhammering and cleaning roles.
Following Mr Donald's injury on 13 May 2008, he was paired with another worker, Mr Price. Mr Price said that the team members swapped between jackhammering and cleaning. In cross-examination he said: "A. You do swap. You don't do it all the time, you try to share the workload. Q. You're sharing the workload by one person doing the cleaning and another person doing the jack hammering; aren't you? A. Yeah, but [the] same guy can't jack hammer all the time for weeks on end. Q. But you don't jack hammer all the time, do you? You have a considerable number of breaks, for a start, when the cleaner is getting the rubble out that you've just broken up? A. I'm still hammering. Q. What, while he's doing it? A. Yeah. That's why [he] wears safety glasses and a hard hat because there's rocks hitting him."
Mr Gonzales did not give evidence. Although his Honour did not draw a Jones v Dunkel inference from the failure of Mr Gonzales to give evidence, he rejected the tender of Mr Gonzales' statement. However, Rail Corp contended that Mr Price in cross-examination said that Mr Gonzales cleaned. The relevant evidence was: "Q. So he had things to do additional to any task that he might take on of cleaning. Do you agree? A. Agree."
This evidence followed cross-examination to the effect that Mr Gonzales was a carpenter who did work forming up for the setting down of the new concrete and that he was also the person who operated the chainsaw to cut out the middle section of the sleepers. Mr Donald was cross-examined about this as follows: "Q. … [Mr Gonzales] was in fact the person who used the chainsaw in all the work that was going on during the course of the shift for the purpose of chopping a chunk out of the middle of each sleeper, do you agree? A. Well, I've seen several different people cut the sleeper as well. HIS HONOUR Q. A moment ago you agreed with [Counsel] that the person who did it was generally Mr Gonzales, is that correct? A. Yes."
Mr Thompson gave evidence of the system of work. He also gave evidence of the work performed by Mr Gonzales. In his evidentiary statement tendered as his evidence-in-chief, Mr Thompson explained that the removal of the old sleepers occurred on two nights a week, mostly on a Monday and Wednesday, but sometimes on a Monday and Tuesday. The new sleepers were installed on two different nights a week at most. This evidence was not challenged.
In his statement, Mr Thompson gave the following evidence regarding Mr Gonzales: 15. … [Mr Gonzales] was a good cleaner and took the sleeper out of the holes and put them to the side against the wall. [Mr Gonzales] would jack hammer if I asked him but he was never asked to do the jack hammering … … 21. The bloke on the jack hammer did not usually lift the sleepers out. That was the cleaner's task. … 23. A new sleeper might be installed if I had time after the removal and cleaning. However concreting the sleeper would be done in the following shift. … 27. The jackhammering of the sleeper might take 10 minutes. There would then be a break whilst the cleaner removed the rubble or piece of sleeper. You cannot continuously jackhammer doing this work. 28. You do not have to work flat out. I did not feel [Mr Donald] worked flat out. … 32. [Mr Gonzales] used to pick out all the sleeper parts out of the bays. The truck used to come back at the end of the shift and the men lifted the timber onto the truck and there were two men on the truck who used to place them on the pallets there. Sometimes they'd lift them as pairs and sometimes alone. 33. When [Mr Donald] was jack hammering, [Mr Gonzales] lifted the sleeper out. … 38. The men were told repeatedly not to over fill [the bags of rubble] … I told the men at the start of each shift not to overfill and not to fill to a weight above 20kg. … 39. … [Mr Donald] never complained about the installation of polymer sleepers or appeared to have a problem with the task. … 52. [Mr Donald] did not jack hammer constantly every shift. He jack hammered two nights a week and then it was intermittently … Some weeks the teams jack hammered only one night a week. The teams did other tasks which included installing the polymer sleepers and concreting them. 53. … They can have breaks and stop and start and have a smoke and a drink of water. It is up to the operator. As long as the four [half] sleepers are removed the operator can operate the jack hammer as frequently as he chooses. … 59. … [Mr Donald] replaced four half sleepers or two sleepers and four bays and at the most three sleepers or six half sleepers. The whole crew removed eight sleepers in a shift. … 61. If a sleeper piece was too heavy, you got a team mate to do a team lift. This is what the men were told to do. 62. … There were 16 half sleepers and eight middle bits so 24 pieces to be loaded at the end of the night … … 69. [Mr Gonzales] used to clean for [Mr Donald], filling the bags and placing the bags to one side and removing the sleepers after they were jackhammered up. 70. From what I saw, [Mr Gonzales] did his tasks and [Mr Donald] was not doing them for him. … 84. The continuous use of jackhammering is limited by time. 85. The system at the time was for persons assigned to jackhammering with regular rest breaks, to alternate that work with something different, other than jackhammering, on every other day. … 122. When Mr Donald became good at the jackhammering he expressed a desire to do all the jackhammering and was then teamed with [Mr Gonzales] who was happy to do all the ongoing clean-up."
Mr Thompson also said that Mr Donald never complained to him about the work, nor did he ask that he be paired with someone other than Mr Gonzales.
There was no cross-examination on paras 15, 21, 23, 27, 32, 33, 38, 52, 53, 61, 62, 69, 70, 84 and 122 of Mr Thompson's statement.
In cross-examination, Mr Thompson accepted that Rail Corp's "safe working method statement" included a provision that tasks should be rotated every 20 minutes with respect to jackhammering. Mr Thompson was cross-examined as to discussions he had with Mr Mitic about the need for such rotation as follows: "Q: But you would have discussed that topic with [Mr Mitic] surely? A: Yeah. Q: In effect, you and he spoke about the need for jackhammering to be rotated every 20 minutes didn't you? A: Depending on the person - of what he [preferred] to do. … Q: It's one thing to just let a person do what he wants to do, and it's another thing entirely to give effect to what should happen every 20 minutes, isn't it? A: Yeah."
Mr Thompson agreed that sometimes one of the two team members did not want to jackhammer. He also said that he could not say whether Mr Gonzales jackhammered in 2007 and 2008. However, it may be noted that it was not in issue that Mr Gonzales did not jackhammer, at least when teamed with Mr Donald.
Mr Thompson explained the process of "scrabbling" as follows: "Once we replace the sleepers, the tunnel floor is rough with rough concrete and to get the concrete below the height of the new polymer blocks that have been replaced, you've got to break off high spots on the tunnel floor, so when we do what they call a final pour, so the floor is smooth again, there's no high spots sticking out the level of the concrete, that's what's known as scrabble. … [It is done] with the jackhammers [and how long the process takes] depends [on] how many high spots there is."
Mr Jordan Iordanidis was employed by Rail Corp as a fettler at the time of Mr Donald's engagement with Rail Corp and trained Mr Donald in the use of the jackhammer. He said that he explained to Mr Donald that the sleeper is removed by jackhammering first on one side of the sleeper to loosen it. The other side is then jackhammered, followed by the short ends. The sleeper is then taken out by the second worker, often with the help of the jackhammer operator. He explained that: "The second man removes the broken concrete as the jack hammer operator moves along the concrete. The second man places the pieces in white bags and places them to the side of the track for later collection."
Mr Jordan Iordanidis then referred to the explanation he gave to Mr Donald as to the "scrabbling" process as follows: "Once the sleeper is removed the next step is to 'scrabble' the concrete that was under the sleeper. The jack hammer is used to scrabble. The purpose is to make room for the new sleeper and its plate. When the timber sleeper is removed there is a hole left. That hole has concrete in it. You operate the jack hammer to chip away five to 10 cm at a time to make the hole deeper and to clean up the old concrete where necessary. The aim is to ensure that the new concrete will bind with the old existing concrete in the hole and also that the new sleeper will fit into position."
Mr Jordan Iordanidis explained that no one jackhammered "for an entire shift and every shift". He stated that Rail Corp did not have possession of the track for a complete shift and that the average length of possession was four hours, including the time for setting up, cleaning up and returning possession of the track before departing the tunnel. He also said that the workers alternated between jackhammering the old sleepers out on one shift and installing the new sleepers on the next shift.
In cross-examination, Mr Jordan Iordanidis said that if the person doing the jackhammering got tired, he could "ask someone else to do his hole". He said that everyone pitched in, as some workers would only take 5 or 10 minutes to jackhammer a hole. Mr Jordan Iordanidis also said that Mr Donald preferred to jackhammer and did not want to do the cleaning, which was hard work. He said that that was the reason Mr Donald was paired with Mr Gonzales, as Mr Gonzales did not want to operate a jackhammer and, for that reason, always worked as a cleaner in the teams of two. In cross-examination, he said that the teams were all working within 20 to 30m of each other. He said, "[i]f I'm hammering here, I can see what he's doing … I can see who's cleaning, who's hammering". He agreed, however, that he "didn't make any particular note of who was doing what". He did not say what work he saw Mr Gonzales doing or that he saw Mr Donald doing cleaning work.
Mr Jim Iordanidis was a team leader employed by Rail Corp. He was not Mr Donald's direct supervisor, and both Mr Thompson and Mr Mitic reported to him. He worked the day shift but had spoken to Mr Donald on certain occasions as to his conduct at work. He also spoke to all the workers on one night shift as to safety matters. He said that Rail Corp did not "do safe manual handling techniques for contractors". That training was undertaken by Staff Innovations.
Mr Jim Iordanidis responded directly to the particulars of negligence alleged by Mr Donald in the second further amended statement of claim. Relevantly, his answers to particulars (k) and (r) were as follows: "(k) In relation to the allegation that RailCorp failed to institute a system of work where continuous use of the jack hammer was limited and there was rotation of tasks I say the men were briefed on the need to rotate and vary their tasks. We don't force men to jack hammer so if [Mr Donald] was paired with a man who did not jack hammer then [Mr Donald] should have waited 20 minutes and then started jack hammering again. … (r) In relation to the allegation that RailCorp provided inadequate rotation of the use of the jack hammer I say the men can rotate any time they like. There is ample time to complete the tasks. There is no jack hammering each night. Every second night there is jack hammering and every other night there is cementing and installation of the new sleepers."
In cross-examination, Mr Jim Iordanidis gave the following evidence: Q. Did you not have in place a system whereby jackhammer operators would not use a jackhammer for more than 20 minutes before doing something else? A. That was in the [Safe Working Method Statement (SWMS)]. That was - if they wanted [to], they could have a 20-minute break. That was an option to them. It wasn't - like I said to you before, it's - everyone jackhammered at their own convenience. It was - it's a bit hard to put a time limit - because we had some guys that were 60 kilos, some guys were 90 kilos. Some guys would stop earlier, some guys - and they rotate whenever they want. We didn't [make] it law." … Q. I think you said the SWMS say something to the effect that you shouldn't jackhammer for more than 20 minutes; is that right? A. The SWMS that you can have 20-minute - have a break after 20 minutes if you wanted to. Q. So the SWMS say that after 20 minutes it's a good idea to have a break or something like that. A. If you wanted to. Like I said, yes. We didn't force it. It's up to the individual if he wants to. Q. Then when you have a break, what you are saying in subparagraph (k) is that you should have a break of at least 20 minutes; is that right? A. Well, it says here 20 minute - but, yeah, you can - to have a break. Q. Well, your words. 'Should have waited 20 minutes.' A. He can have as long as - he can have an hour if he liked. As long as - Q. Not less than? A. I'm just saying, it depends. Every person - what I'm trying to say is each individual took his own break. We didn't have a time or clock. Some guys … had more breaks than others. We weren't there to police - we were there just to make sure they're comfortable in what they were doing and they did it to the best of their ability, that's all." (emphasis added)

Issues on the appeal regarding the primary judge's findings at [89] and [106]

Whether the primary judge erred in drawing the inferences at [89] and [106]: appeal grounds 1(a) and (b)

Whether the primary judge erred in finding at [106] that Mr Donald would not have received rest breaks: appeal ground 1(c)

Primary judge's reasons

One of the issues at trial as between Mr Donald and Rail Corp, as his Honour noted at [8], was the content of Rail Corp's duty of care. Rail Corp argued at trial that its workers were allowed to take breaks whenever they wanted and that a system of work rotation was in place.
His Honour observed at [93] that the "expert evidence from ergonomists was unanimous", namely, that a safe system for this work required "job rotation and task breaks interspersed inside short spells of work (work spells on the jackhammer limited to a maximum of 15-20 minutes)", as stated by Dr Adams, Mr Donald's expert, and Mr Dohrmann in a joint report of 2 April 2013. His Honour at [93] also referred to Mr Horrigan's evidence, which was essentially to the same effect. His Honour recorded Mr Horrigan's evidence in his report of 23 August 2013, in which he said that there was "no doubt that regular breaks from jackhammering are needed to reduce the risk of fatigue and/or the effects of vibration". Mr Horrigan said: "The easiest way to achieve this was for the team members to swap tasks every 20 minutes. There were natural process breaks where, for safety purposes, jackhammering ceases while the clean up takes place. These would occur every 10 to 20 minutes. A changeover could occur at the end of one of these natural breaks."
His Honour found at [98] that it was clear from the evidence of Mr Jim Iordanidis in cross-examination that Rail Corp "had no formalised system for rotating tasks". His Honour continued: "That is to say, although the need for task rotation to avoid a risk of manual handling injury from repetitive or heavy work was recognised, the workers were basically left to their own devices in this regard. As he said, 'that was an option to them'."
His Honour noted at [99] that Mr Jim Iordanidis said that "everyone jackhammered at their own convenience". His Honour concluded on this point that "Rail Corp did not institute and maintain a system of work that required structured task rotation".
However, his Honour at [104] commented that whilst the system operated in practice "without regulated or structured breaks or rotation, [it may be that] in most cases [the system] had de facto task rotation or breaks". His Honour observed that, in practice, the work was carried out in a way that the two members of the team: "… generally took turns at the various tasks, including jackhammering and cleaning away the rubble; the jackhammerer had a break while the cleaner cleaned; and the cleaner had a break while the jackhammer jackhammered."
Accordingly, his Honour at [105] considered that whilst the system of job rotation or work breaks was honoured more in the breach by leaving it to the men themselves, this ad hoc system "was generally not unreasonable". However, his Honour accepted that this ad hoc system did not apply to Mr Donald. In considering the work that Mr Donald did, his Honour at [89] and [106] drew two inferences, both of which are the subject of challenge by Rail Corp. It is necessary to set out those paragraphs of his Honour's reasons in full. The challenged inferences are the bolded portions in each paragraph.
His Honour discussed the work as it was performed by Mr Donald as follows: "89. It is necessary to say a little more about the precise nature of the task. I am satisfied that up until 13 May 2008, Mr Donald was generally teamed with a co-worker who did not perform jackhammering work, meaning that he was required to perform all of the work of that nature allocated to his team of two. That man was a Mr Gonzales. Mr Gonzales was a direct employee of Rail Corp. He was older than Mr Donald, probably in his fifties and was not required by Rail Corp to perform any jackhammering. It should also be noted that Mr Gonzales had other skills. It was generally him who cut the middle section from the sleepers for all teams and he had the responsibility of placing the form work for pouring the concrete to secure the new polymer sleepers. I infer that this had the consequence that Mr Donald may have been called upon to perform more than his share of the work clearing away the rubble created by the jackhammering. … 106. Mr Donald's position was a little different from the other workers. In this regard, it is important to bear in mind that the duty of care is owed not only to the class of employees as a whole, but also to each worker individually (Paris v Stepney Borough Council [1951] AC 367). One does not have to accept Mr Donald's evidence at face value, because it is common ground, that he was paired with Mr Gonzales, who because of his age and perhaps his other duties did not jackhammer. Moreover, because of the performance of those other duties involving his carpentry skills, I infer Mr Donald would have been, at least frequently, left to his own devices to perform all of the tasks required to remove and replace sleepers. All of this work, as I have said, was heavy. Mr Donald's evidence was that the bags of rubble could weigh as much as 30 kilograms. This does not seem an unreasonable estimate. Accepting this, he would not have received the benefit of the breaks inherent in the two man team working together and sharing the tasks. This at least would have been the case up until 13 May 2008 when he, as I have found, suffered injury. After that date he was probably paired, with Mr Price. I rejected the evidence of each of them about a second incident. But that does not mean everything they said is unreliable. Probably, from about the middle of May 2008 Mr Donald and Mr Price worked as a team in the same way as the other men. I do not accept that during the period they worked together, Mr Price did all the jackhammering and Mr Donald the cleaning." (emphases added)

Rail Corp's submissions

Rail Corp contended, first by reference to the pleadings (see above at [16]), that it was never part of Mr Donald's case that Mr Gonzales did not perform his role as cleaner. Rather, it contended that Mr Donald's case was that he was required to jackhammer continuously and that this case had not been made out on the evidence.
In support of its specific challenge to his Honour's inferential finding at [89], Rail Corp submitted that it was not reasonably open to infer that because Mr Gonzales cut the middle section from the sleepers, he was not performing his role as cleaner. It submitted that the evidence on that matter was silent, by which I understand the submission to contend that there was no evidence that because, or on the occasions when, Mr Gonzales was cutting the middle section of the sleepers for each of the teams, he did not do his work as the cleaner when teamed with Mr Donald. Rail Corp pointed out that the evidence was that Mr Gonzales undertook his role as cleaner and that Mr Donald did not do any of the clearing away of the rubble.
Further, according to Rail Corp, the primary judge misapprehended the evidence in that he appeared to have understood that the work involved in the removal of the old sleepers occurred on the same night as the installation of the new sleepers. That was not correct. Mr Gonzales' responsibility for placing the form work down for the purposes of laying the new sleepers occurred on a different night from the night that the jackhammering and removal of the old sleepers and the clearing away of the rubble took place.
Rail Corp submitted that the inferential finding at [106] involved the same error as his Honour had made in [89], namely, that his Honour erroneously inferred that because Mr Gonzales did not jackhammer, Mr Donald, at least frequently, would have been left to his own devices to perform all of the tasks involved in removing and/or replacing the sleepers. Rail Corp again emphasised that the tasks of removal and replacement occurred on different nights and that there was no evidence that permitted his Honour to find that Mr Donald did both the jackhammering and the clearing away of the rubble. Rail Corp pointed to Mr Donald's statement of evidence, in which, it contended, there was no complaint that Mr Gonzales did not clear away the rubble. Rail Corp submitted that Mr Donald's main complaint in his statement was that Mr Gonzales did not jackhammer.
It followed, on Rail Corp's submission, that his Honour's foundational finding at [106] for his conclusion on breach of duty, that Mr Donald "would not have received the benefit of the breaks inherent in the two man team working together and sharing the tasks", was flawed because the inferential bases for that finding were unsupportable.

Mr Donald's submissions

Mr Donald's submissions focussed essentially on the case that was run at trial, namely, that the nature and conditions of his employment were such that he was engaged in heavy work, involving jackhammering and heavy lifting, which culminated in his sustaining injury. The first sign of the injury occurred in the early hours of 13 May 2008, the shift having commenced on the evening of 12 May 2008. Mr Donald was off work for the night shift on 13 May 2008 and returned for the shift on 14 May 2008.
In support of this case, Mr Donald relied on his evidence to the effect that he was required not only to do all the jackhammering without that task being rotated with another worker, but also to do heavy lifting, including lifting the sleepers out after they had been jackhammered, lifting the bags of rubble from the railway line across to where they would be collected for removal at the end of the shift and lifting the bags onto the truck for removal. He did not contend on the appeal that he cleaned up the rubble and put it in the bags.
Mr Donald submitted, therefore, that on all of the evidence, it was established that he did not have the breaks the others did, and was not getting the breaks that he needed. He pointed out that he had not been cross-examined to the effect that he was able to stand around and have a break while Mr Gonzales "was doing things". He also gave evidence that he was never told he could take breaks every 20 minutes.
Mr Donald also submitted that his Honour's statement at [104] that "the jackhammerer had a break while the cleaner cleaned" related to the general de facto work system that operated and was not a finding as to the manner in which Mr Donald worked when paired with Mr Gonzales.

Consideration

The principles that govern the drawing of inferences are well-established. An inference may only be drawn if there is evidence to support it. In Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 the plurality, Dixon, Fullagar and Kitto JJ at 358 approved the High Court's explanation of the principle in the then unreported decision of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 as follows: "… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise." (emphasis added, citations omitted)
This was reiterated in Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25. In that case, the plurality, Williams, Webb and Taylor JJ, observed at 480 that: "Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause 'you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference …" (emphasis added)
Their Honours, referring to Bradshaw v McEwans, emphasised that an inference could be drawn "from the circumstances that sufficiently appear by evidence or admission" provided that the circumstances were left unexplained.
Rail Corp's first challenge to his Honour's inferential finding at [89] was that it was never part of Mr Donald's case that Mr Gonzales did not perform his role as cleaner when they were paired together. As I understand this submission, it was directed, in essence, to the pleadings and the way the case was run. I have dealt with that question at [15]ff, but the following observations need to be made at this point. Insofar as the pleadings point is relied on in support of appeal grounds 1(a), (b) and (c), the particulars of negligence in paras 7(s), (t) and (u), as set out at [18] above, extend to a case based on heavy lifting. In any event, the drawing of inferences does not depend on the case pleaded, which goes to the anterior question as to the scope of the case that was or could be made out. Rather, the drawing of inferences is a mode of circumstantial fact finding based on proved facts or admissions, from which it is reasonable to draw a particular conclusion.
In order to determine whether there was evidence to support the inferences drawn by his Honour at [89] and [106], it is important to understand not only the jackhammering task, but also the two different aspects of the cleaning task insofar as it related to clearing up the rubble. First, there was the jackhammering to remove the sleeper, which was then lifted out. Mr Donald said that he did the lifting, except for a small centre section, without assistance (see Mr Donald's statement at para 43, set out above at [37]). Following that, the bed in which the sleeper lay had to be cleaned up, a process known as "scrabbling". It was apparent from Mr Price's evidence that during this process, the rubble would be removed as the jackhammer operator continued to move along the sleeper bed.
As Mr Donald acknowledged, Rail Corp was correct in saying that Mr Donald did not clean up the rubble created by the jackhammering in the sense that he did not clean up the loose concrete and put it into the hessian bags. However, Mr Donald's evidence was that, in addition to doing all of the jackhammering, Mr Gonzales would leave it to him to pick up the bags of rubble, take them to the position from where they were to be collected, and later assist in loading them onto the truck, as Mr Gonzales would not do that work. This evidence is set out above at [39] to [41]. In particular, reference should be made to Mr Donald's evidence at para 62 of his statement, that he had to carry the bags of rubble to the side of the track, and his evidence in cross-examination that he had to pick up the bags at the end of the shift and load them onto the truck. I should add that I do not understand Mr Donald's evidence as to an occasion when Mr Gonzales told him to "eff off" (see above at [41]) to mean that Mr Gonzales no longer filled the bags.
Accordingly, if his Honour inferred that Mr Donald cleared away the rubble in the sense of sweeping it up and putting it in the bags for removal, that was contrary to the evidence and unsupported by any other evidence. On that basis, the inferential finding was not available. If his Honour meant to refer only to the task that Mr Donald said he did, namely, that he moved the filled bags of rubble to the side of the track and later lifted them onto the truck for removal, then that was the subject of direct evidence and it was not necessary to engage in any inferential fact finding. Rather, it was a matter for his Honour to decide whether he accepted Mr Donald's evidence on this point.
I will return to the question of what evidence his Honour accepted after dealing with the inference drawn at [106]. Before doing so, it is necessary to refer to two other matters. Rail Corp contended that his Honour, at [89], also misapprehended the evidence insofar as he observed that Mr Gonzales had the responsibility of placing the form work for pouring the concrete for the new polymer sleepers. If his Honour understood that that work was carried out on the same night as the removal of the old sleepers, that would not have accorded with the evidence, except to the extent that Mr Thompson said that sometimes a new sleeper would be installed on the same night as the old sleepers were removed: see above para 23 of Mr Thompson's statement at [47]. Rail Corp also submitted that his Honour, erroneously, inferred from the evidence that because Mr Gonzales cut the middle section from the sleepers, he was not performing his work as cleaner. That, however, was not the inference his Honour drew. Rather, it was that because Mr Gonzales undertook tasks other than cleaning, Mr Donald may have been called upon to do more than his share of the work clearing away the rubble.
Nonetheless, the problem with his Honour's inferential finding at [89] remains. It was not part of Mr Donald's case, either as pleaded or supported by evidence, that he had to pick up the rubble and put it in the bags. As I mentioned above, if his Honour's inferential finding was to that effect, then the challenge in appeal ground 1(a) should be upheld.
Rail Corp made essentially the same challenge to the inference drawn in [106] that: "… Mr Donald would have been, at least frequently, left to his own devices to perform all of the tasks required to remove and replace sleepers."
For the reasons I have already given, the evidence, including Mr Donald's evidence, did not support an inference in those terms. Accordingly, I consider that appeal ground 1(b) should also be upheld.
Appeal ground 1(c) challenged his Honour's foundational finding in [106] that Mr Donald "would not have received the benefit of the breaks inherent in the two man team working together and sharing the tasks". As I understand his Honour's reasons, this finding was based, at least in part, on the inference drawn earlier in that paragraph that Mr Donald would have frequently been left to his own devices to perform all of the work involved in removing and replacing the sleepers. It was also likely to have been based on the inference drawn in [89]. To the extent that I have rejected the availability of those inferences, it follows that this finding could not be supported by those inferential findings.
However, for the reasons I give below, even if the finding was based on the inferential findings at [89] and [106] and therefore unsupported by the facts, either direct or inferred, I consider that that is not determinative of the question whether Rail Corp breached its duty of care to Mr Donald.

Issues on the appeal regarding task rotation and rest breaks

Whether the primary judge should have found that Mr Donald received adequate rest breaks: appeal ground 2

Alternatively, whether the primary judge erred in finding that Mr Donald would not have received adequate rest breaks when rotating between jackhammering and cleaning: appeal ground 2A

Whether the primary judge erred in finding that a reasonably adequate system of task rotation or in built rest breaks would have operated to eliminate or substantially reduce the risk of harm: appeal grounds 3(b) and 4

Primary judge's reasons

His Honour held that Rail Corp had no formalised or structured system for rotating tasks, and that: "… the performance of hard, physical work on a continuous or repetitive basis without adequate break exposes workers to a risk of musculo-skeletal injury" ([98]-[99], [103]).
His Honour accepted at [105] that a de facto system of work had developed so that the rotation of tasks and rest breaks was in the main left to the workers themselves to organise, but that the system of work "was generally not unreasonable". However, his Honour found at [106] that the position with Mr Donald was "a little different".
His Honour held at [107] that the risk of musculo-skeletal injury was reasonably foreseeable. This finding was not challenged. His Honour also held, and this finding was challenged, that the risk of harm was "not insignificant". I deal with that challenge below and have rejected it. As his Honour said, the heavy nature of the work made the occurrence of back injury unsurprising.
His Honour concluded at [109] that: "… in the circumstances a reasonable quasi-employer in Rail Corp's position would have taken the precaution of pairing Mr Donald with a permanent partner able to share all aspects of the work. By this means a reasonably adequate system of task rotation or in built rest breaks would have operated to, if not eliminate, at least substantially reduce the risk of harm."
His Honour at [110] stated that such a precaution was reasonable, having regard to: the degree of probability that the harm would occur if care were not taken; the fact that the injury could be significant; and the fact that the only burden involved would be to rearrange or reorganise the existing work force, as apparently happened after 13 May 2008. His Honour held as part of his consideration of s 5B(2), that although the provision of employment is socially useful, its social utility did not justify any kind of immunity from the liability that would otherwise be imposed by the law of negligence.

Rail Corp's submissions

Rail Corp argued that, even if his Honour's inferential findings were to stand, it had not breached its duty to Mr Donald. It pointed out that regular breaks could be taken through task rotation, so that even if Mr Donald generally performed all the work during the nights when the sleepers were replaced, he received sufficient breaks as he changed from one task to another, that is, from jackhammering to cleaning. In other words, there was a reasonably adequate system of in-built rest breaks so as to reduce, at least substantially, the risk of harm. It followed on this submission that the primary judge erred in finding that Rail Corp had breached its duty of care. Rail Corp relied in particular on the evidence of Mr Horrigan, who gave expert ergonomic evidence, which is discussed below.
Rail Corp further submitted that the finding that Mr Donald had not received adequate breaks ignored the evidence that half a sleeper would take between 10 and 20 minutes to jackhammer and that only four half sleepers were typically required to be jackhammered over a four hour period of possession. Rail Corp submitted that the jackhammering was therefore "intermittently spread" over the possession period, and was not continuous, or at a forced pace. Jackhammer operators could take as long as they wanted to complete a sleeper, at which point there would be a natural break in the process of jackhammering to allow cleaning to take place.
Therefore, on Rail Corp's submission, Mr Donald would still have received the necessary breaks even if he was performing all the tasks required to replace the sleepers. This system of task rotation and breaks was adequate to eliminate, or at least substantially reduce, the risk of harm to Mr Donald.

Mr Donald's submissions

Mr Donald's primary submission assumed that appeal grounds 1(a), (b) and (c) would not succeed. That argument must now be put aside. He submitted that even accepting that Mr Gonzales cleaned up the rubble, it was never suggested to him that he could take breaks whilst this was occurring. Rather, the work of jackhammering was continuous. He contended that Mr Jordan Iordanidis' evidence supported this submission. In this regard, Mr Jordan Iordanidis explained the system of work in his witness statement, as follows: "The second man removes the broken concrete as the jack hammer operator moves along the concrete. The second man places the pieces in white bags and places them to the side of the track for later collection."
Mr Donald contended that a safe system of work required that there be a system of task rotation such that a worker not be required to operate a jackhammer for longer than 20 minutes at a time. Rail Corp contended that workers were allowed to take as many breaks as they wished and that there was a system of work rotation in place whereby the members of the teams alternated between tasks so that "each worker had the opportunity for a 5-20 minute break after using the jackhammer while subsequent necessary tasks could be carried out".
In making this submission, Mr Donald relied on his evidence, as discussed above, that Mr Gonzales left it to him to move the bags filled with rubble, that they were often heavier than 20 kg and that he was also required to lift them onto the truck. He submitted that in other teams, this work was done by the cleaner. Mr Donald also said that he moved the long ends of the sleepers off the tracks, while Mr Gonzales only moved the short middle sections that he chainsawed.

Mr Horrigan's evidence

As I have indicated, Rail Corp relied upon the evidence of Mr Horrigan in respect of its contention that it did not breach its duty of care by pairing Mr Donald with someone who did not jackhammer.
In his report of 23 August 2013, to which reference has already been made, Mr Horrigan stated that there was "no doubt that regular breaks from jackhammering are needed to reduce the risk of fatigue and/or the effects of vibration". Mr Horrigan made this comment in response to the expert report of Dr Adams of 1 July 2010, in which Dr Adams stated that: "… an aggravating risk factor that may exacerbate the potential for injury … is the exposure to vibration. Unavoidably, the use of a pneumatic jackhammer involves significant exposure to vibration which may affect not only the hands and forearms … but can adversely contribute to the injurious effect of … other risk factors on the musculo-skeletal system."
Mr Horrigan also gave the following evidence in cross-examination: "Q. You would regard, would you not, a proper measure of rotation as being something in the order of 15 to 20 minutes when using a jackhammer wouldn't you? A. What would you require to ameliorate the effects of a jackhammer would be to have regular breaks. Now, regular breaks can be created by rotation … which happens, or they can result from natural breaks that occur in the course of the activity of the task being undertaken. Now, the important thing is not the rotation. The important thing is the breaks. Q. Well, is it not important that different muscles be used in place of those that were being used before being relieved from the first task? A. Not necessarily. It's the fact - what you've got to have is that the muscles get a chance to recover and there is a break. The important thing is the break. You could argue if someone was working and then stopped and undertook another task, then the different muscle groups were used. If the person actually stood just stationary or walked around, just to shake their arms or do anything else, yes, there is different muscles being used. So it's the break in the work tasks that is important. It doesn't really matter how they are achieved, as long as they are achieved." (emphases added)
Mr Horrigan agreed that from an ergonomic perspective, jackhammering placed stress on the lower back. He was then questioned as to whether that was a form of cumulative stress. He said that: "Cumulative is an accumulation of loads on the body, not a particular - one instance … they occur from time to time …"
The cross-examination continued: "Q. But also this is why you have breaks and rotation, isn't it? That you don't want to continuously apply the forces onto the body? A. The main reason for breaks and for whatever reason you are to get them is give you a chance for a variation, whether it's postural variation or whether it's - whether it's to reduce the amount fatigue, a rest break. So there's a whole raft of reasons why you would want to have breaks. But certainly if you're doing a physical work load and you had a break and the physical activities were more stressful during the break, then it would be better on the body not to have more ongoing stresses. That doesn't necessarily mean that there would be - yes, well, there would be an accumulation of stresses, because every - every load that's on the body is felt by the body, but it doesn't necessarily accumulate in an injurious fashion. It could be just, of course, tiredness."
Mr Horrigan said that an accumulation of stresses could actually cause a person to become stronger and to protect the body from injury. He accepted, however, that "generally … accumulation gradually works on the body" and that "a whole body vibration … is something that you want to have regular breaks from".

Dr Adams' evidence

Dr Adams, in his report of 1 July 2010, stated: "… another important and commonly advocated preventative or ameliorative action relevant to the use of jackhammers is to strictly limit the amount of time over which the machine should be used continuously and to rotate periods of jackhammering use with periods of quite different activity that would provide some relief."
Dr Adams reiterated this view in his joint report with Mr Dohrmann of 2 April 2013, as set out above at [61].
Dr Adams concluded that: "… there is … an [sic] quite high probability that a person performing the repetitive jackhammering and the lifting/carrying work being performed by Mr Donald would be exposed to a cumulative risk of musculo-skeletal injury of some kind, and most likely reflective of occupational overuse or cumulative trauma."
Dr Adams affirmed these opinions and comments in his subsequent report of 12 October 2013.
In their joint report of 30 October 2015, Mr Horrigan and Dr Adams did not address the issue of rest breaks. However, they agreed that "the use of a jackhammer … may entail postures and weight-supporting movements that carry an increased risk of injury".

Consideration

Rail Corp did not dispute that it owed a duty of care to Mr Donald. This is well established: see TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47. That case was concerned with the liability of a labour hire company, in circumstances where its employee was injured whilst engaged in work at TNT Australia Pty Ltd, to whom his services had been hired out. Mason P at [41] held that on the facts as found, the entity to whom the plaintiff's services had been hired had the same duty of care as that of the employer. His reasons were as follows: "It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with the person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT's relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked. See also Ferguson Construction Company Ltd v Hargreaves and Mayhead Brothers Ltd [1973] 1 NZLR 634."
Rail Corp contended that his Honour should have found that Mr Donald had adequate rest breaks in circumstances where Mr Gonzales cleared away the rubble. In order to determine whether that is so, it is necessary to have regard to the evidence which his Honour either accepted, or which was not challenged. In summary, that evidence was as follows.
His Honour found that Mr Donald did all of the jackhammering. Mr Donald also said that he had to move the heavy bags of rubble to the side of the track and, at the end of the day, lift them onto the truck. His Honour accepted at [109] Mr Donald's evidence that the bags weighed as much as 30kg, noting that that was not an unreasonable estimate. That finding involved an acceptance of Mr Donald's evidence on that point and, in my opinion, implicitly involved an acceptance by his Honour that Mr Donald lifted the bags.
Rail Corp's Safe Working Method Statement provided that jackhammer operators should have a break every 20 minutes. However, this was not enforced and the workers were left to work at their own convenience.
Those in supervisory positions, such as Mr Thompson and Mr Jim Iordanidis, understood that jackhammer operators needed to have breaks from jackhammering, even if, like Mr Thompson, they did not understand the anatomical reasons for that. Mr Thompson accepted that he had discussed the need for jackhammer operators to rest every 20 minutes with Mr Mitic, Mr Donald's team leader. Although he said that it would depend upon what the individual worker preferred, he accepted that it was "one thing" to allow a person to do what they wanted and an entirely different thing "to give effect to what should happen".
Mr Mitic said that the workers were told that jackhammering was to be rotated every 20 minutes and that Mr Donald knew this. Mr Donald was not cross-examined to that effect.
Mr Jim Iordanidis said that the workers were briefed on the need to rotate and vary their tasks. He said that if Mr Donald was paired with someone who did not jackhammer, he should have waited 20 minutes before jackhammering again. However, there was no evidence that he ever instructed or advised Mr Donald to do this. His evidence, that on one occasion he spoke to the night shift about safety matters, was merely a general statement with no detail as to the matters he dealt with. He also said that Rail Corp did not instruct the contractors on manual handling techniques. He said that that was left to Staff Innovations.
Mr Jordan Iordanidis said that if a jackhammer operator got tired he could "ask someone else to do his hole". However, there was no evidence that Mr Donald was ever told that or that that was a realistic alternative, although Mr Jordan Iordanidis did say that "we all used to pitch in together".
Mr Horrigan accepted that "whole body vibration" was "something that you want to have regular breaks from", but that if the break encompassed other heavy lifting, "then it would be better on the body not to have more ongoing stresses". The need for rest breaks was reiterated by the other expert ergonomists.
As the evidence summarised above demonstrates, Rail Corp's own Safe Working Method Statement specifically recognised that a person should not jackhammer for more than 20 minutes at a time. Mr Horrigan recognised that workers needed a break from the vibration caused by jackhammering and that, if the worker did heavy, although different, work while having a break from jackhammering, that was likely to place more stress on the body.
The evidence was also clear that the responsible Rail Corp personnel did not ensure those rest breaks were taken. It was very much a matter for the workers to organise themselves and take such rest breaks, including by rotating tasks, as and when they thought they needed a break. This, as his Honour found, worked well enough when workers were paired in teams where the cleaning and jackhammering were rotated. However, as his Honour found, Mr Donald's position was different.
It may be accepted that the de facto system of task rotation worked reasonably well. However, that system did not operate in relation to Mr Donald. Rail Corp knew that Mr Donald undertook all the jackhammering in his team. Although Rail Corp contended that Mr Donald wanted to do so, and for that reason, teamed him with Mr Gonzales, that is not the point. As his Honour explained, Rail Corp, as a quasi-employer, owed a direct duty of care to Mr Donald.
Even if Mr Donald knew that the jackhammering was to be rotated every 20 minutes, there was no one with whom he could rotate that task. Rail Corp adduced no evidence that Mr Donald was given any safety instructions over and above or different from the general instructions given to those employees who were in teams where the jackhammering and cleaning were rotated between the two team members. Mr Donald's evidence was that he was not told to take breaks every 20 minutes. There was no evidence to the contrary. Rather, the evidence was general as to what Mr Donald knew. Further, to the extent that Mr Donald did additional heavy lifting on his own, as compared with other teams where the work was shared, Mr Jim Iordanidis said that Rail Corp did not give any instructions to those contractors whose services were hired to Rail Corp by Staff Innovations. That was left to Staff Innovations.
There was a conflict in the evidence as between that of Mr Thompson on the one hand, and Mr Donald, Mr Jordan Iordanidis and Mr Price on the other, as to whether breaks inhered in the system in that the jackhammering did not proceed while the rubble was being cleaned up. On balance, however, as the necessary breaks were, under the de facto system of work, provided by rotating the tasks of jackhammering and clearing away the rubble, it is unlikely that Mr Thompson's understanding was accurate, at least insofar as Mr Donald was concerned.
Mr Donald's case was that he should not have been required to jackhammer without having a partner with whom to share that task so that there was appropriate task rotation, that he should have been provided with proper rest breaks and that he should not have been required to do additional heavy lifting without assistance. The evidence, and in particular the evidence of the ergonomic experts, was that these precautions ought to have been taken. Rail Corp's own safety manual stipulated safe work practices that included the provision of rest breaks when jackhammering work was being undertaken.
In my opinion, the evidence demonstrated that Rail Corp was negligent in failing to take precautions against the risk that Mr Donald would sustain injury in undertaking work where he was the sole person in his team of two required to undertake jackhammering, and where he also did additional heavy lifting without assistance. It was not sufficient for Rail Corp to leave it to Mr Donald to decide when and for how long he stopped for rest breaks.
Once Rail Corp determined or permitted Mr Donald to work differently from the way in which the reasonably safe de facto work system operated, it was its responsibility to take reasonable care to ensure that Mr Donald was given adequate instruction in relation to the manner in which he needed to perform his work so as to do so in a safe manner. It was also obliged to take adequate steps to ensure that he was performing his work in a safe manner. It did neither. As I have explained, Rail Corp's evidence was that not only did it not follow its own safety procedures, to the extent that its evidence related to the instructions it gave to employees, that evidence only related to the general system of work.
Rail Corp was thus negligent in failing to provide Mr Donald with a system of work that guarded against the risk of personal injury, and failed to take adequate steps to ensure that he took reasonable rest breaks from jackhammering and from undertaking additional heavy work that was recognised to be work generally undertaken by two workers, including removing the sleepers and lifting them onto the truck and moving the bags of rubble to where they were to be collected and also lifting them onto the truck.
It follows that I would reject ground 2 of the appeal.
It also follows that I would reject appeal grounds 3(b) and 4. The evidence discussed above demonstrates that a reasonably adequate system of task rotation or rest breaks would have at least substantially reduced, if not eliminated, the risk of harm.
Ground 2A of the appeal is based on the assumption that Mr Donald also cleared away the rubble, and thus would have had adequate rest breaks through the sufficient rotation of tasks. As Mr Donald did not contend that he placed the rubble in the bags, which is what I understand the challenge in appeal ground 2A to encompass, it is not necessary to deal with this ground of appeal.

Whether the risk of harm was insignificant: appeal grounds 3(a) and 4

As I have already stated, the primary judge at [88] identified the 'risk of harm' for the purposes of s 5B as "the risk of Mr Donald suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work". This characterisation of the risk of harm was not challenged. His Honour at [108] was satisfied that the risk of harm was not insignificant, in the sense of being very unlikely to occur. As his Honour said, the heavy nature of the work made the occurrence of back injury unsurprising. His Honour concluded at [109] that precautions would have been taken by a reasonable quasi-employer to pair Mr Donald with someone who shared all the tasks involved in the work required to be performed. On this finding, Mr Donald's pleaded case in para 7(k) and (r) was thus made out.

Rail Corp's submissions

Rail Corp submitted that his Honour erred in finding that the risk of harm was not insignificant, in circumstances where in 2008, there were over 4,000 reports of work injuries, none of which were reports of injury due to jackhammering sleepers other than that made by Mr Donald in respect of 13 May 2008. Rail Corp also relied on the evidence of Mr Thompson, who said that he was unaware of occupational overuse injury or cumulative trauma from operating a jackhammer. This evidence appears to be inconsistent with the ergonomic evidence in the case.
Rail Corp contended that the effect of Mr Horrigan's evidence was that the continuous application of forces onto the body does not necessarily render a person more susceptible to injury. Rail Corp further referred to Dr Maxwell's expert orthopaedic evidence to the effect that "hard work never hurt anyone".
Accordingly, Rail Corp submitted that, in the circumstances, the primary judge erred in finding that the risk of harm was "not insignificant", as the evidence demonstrated that the probability of the occurrence of the risk of harm was remote: see Shaw v Thomas [2010] NSWCA 169 at [42]-[46]; Garzo v Liverpool/Campbelltown Christian School Ltd [2012] NSWCA 151 at [141]-[151]. Rail Corp submitted that if that proposition was accepted, one of the necessary preconditions for a finding of breach of duty under s 5B(1) had not been made out.

Mr Donald's submissions

Mr Donald submitted that the precise mechanism by which his back injury occurred did not have to be foreseeable or not insignificant: Shaw v Thomas at [43] per Macfarlan JA (Beazley and Tobias JJA agreeing). He contended that his Honour's conclusion as to the risk of harm was a common sense finding, which was consistent with the evidence of Dr Bodel and Dr Maxwell as to the connection between back injury and the performance of labouring work. Mr Donald submitted that the requirement that the risk be "not insignificant" was not much more demanding than the requirement in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 that the risk be "not far-fetched or fanciful": Sibraa v Brown [2012] NSWCA 328 at [49].
Mr Donald further submitted that the evidence of Mr Ramaswmy, a team leader in Rail Corp's injury and claims management team, did not negate the conclusion reached by his Honour. The spreadsheet of injury reports only covered one year, 2008, and although there were no other reports of injury from "jackhammering sleepers", there were other complaints of lower back injury from manual-handling work.

Consideration

The meaning and application of the requirement in s 5B(1)(b) that the risk of harm be not insignificant, was considered by this Court in Shaw v Thomas at [43]-[44]. Macfarlan JA (Beazley and Tobias JJA agreeing) at [43] referred to the common law principle that it is not necessary to demonstrate that the precise manner in which the injury was sustained was reasonably foreseeable: see Bitupave Ltd v Pillinger (2015) 72 MVR 460; [2015] NSWCA 298 at [193] and Gulic v Boral Transport Ltd [2016] NSWCA 269 at [38] for more recent applications of this principle.
Macfarlan JA next referred to the well-accepted maxim in Wyong Shire Council v Shirt at 48 that a risk "which is not far-fetched or fanciful" was "real and therefore foreseeable" and observed at [44]: "The requirement in s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much." This standard has been consistently applied in this Court: see Sibraa v Brown at [49]; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [153].
Although the standard of whether a risk of harm is 'not insignificant' is not particularly demanding, the mere fact that an injury occurred does not, of itself, require a conclusion that the risk of harm was 'not insignificant'. However, the unlikely eventuation of a risk of harm may mean that the risk is 'not insignificant' within the meaning of s 5B(1)(b). This was explained in South Sydney Junior Rugby League Club Ltd v Gazis. In that case, an employee of the South Sydney Junior Rugby League Club fell and injured his back when moving a large empty trolley. As to the requirement under s 5B(1)(b), Basten JA (Macfarlan and Simpson JJA agreeing) said at [89]: "… The significance of a risk will depend upon a variety of factors, including obviousness, likelihood of occurrence and seriousness of consequences. In the present circumstances … the risk that a person would fall over if a force, either insufficient (as the plaintiff thought) or too great were applied, or if the person were careless in his or her grip, was foreseeable, but quite unlikely to eventuate. In my view, such a risk could be dismissed as insignificant or, which may be the other side of the same coin, not a risk which would cause a reasonable person in the position of a Club supervisor to direct the plaintiff not to move the trolley." See also Vincent v Woolworths Ltd [2016] NSWCA 40 where the unlikelihood or very low probability of the occurrence of injury was such as to lead the Court to find that s 5B(1)(b) had not been satisfied.
Rail Corp relied upon the fact that of over 4,000 reported work injuries in 2008, the only report of an injury associated with jackhammering was Mr Donald's. In my opinion, this reliance on an injury associated with jackhammering was too narrow a characterisation of Mr Donald's case and, in any event, did not accord with the primary judge's finding at [88] as to the risk of harm, which was of "suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labouring work". Further, as has been mentioned, there were other complaints of lower back injury from manual work. In any event, Mr Donald's position was different from that of other workers who worked on the city tunnel rail network. In addition, Rail Corp's safe work practices recognised that a worker should not operate a jackhammer for more than 20 minutes without taking a break.
In my opinion, the absence of reports of injury due to jackhammering does not mean that there was such a low probability of harm occurring that the risk of harm was not 'not insignificant'. Indeed, Rail Corp recognised that the risk of harm was 'not insignificant' by the very fact that its documented safe work practices were designed to minimise the likelihood of personal injury through heavy repetitive labouring work, by having a system of task rotation, rests and instructions as to weights that should be lifted. In other words, Rail Corp itself recognised that there was a risk of injury against which precautions should be taken.
It follows that I would reject these grounds of appeal.

Causation: appeal grounds 5, 5A and 5B; cross-appeal ground 4

The issue on causation on the appeal was whether Mr Donald's injury and, in particular, the degree of injury he claimed, was caused by the negligence of Rail Corp.

Primary judge's reasons

The primary judge observed at [127] that the treating surgeon, Dr Bentivoglio, in his report of 17 December 2014, reported that "Mr Donald injured his back whilst working as a labourer". In addition, his Honour referred to the reports of Mr Donald's general practitioner, Dr Ajam, who had seen Mr Donald monthly since 18 June 2008. His Honour found that Dr Ajam's reports revealed that "Mr Donald's back pain had become worse working with a jackhammer stooping forward for most of the day". However, the real dispute was as between the opinions of the medico-legal experts, Dr Bodel and Dr Maxwell.
Although his Honour found it a difficult question to answer, he determined the question of causation by accepting the opinion of Dr Bodel, as follows: "131. I accept that the work leading up to 13 May 2008 and the work done on that day caused, in Dr Bodel's terms, an internal disc disruption, but no frank protrusion then occurred. This explains why Mr Donald was able to work on until the work was withdrawn and notwithstanding symptoms which were of concern to Dr Ajam, he performed 20 hours' work for Multi Civil and Rail and was able to continue at the gym for a period. It should be borne in mind that at one stage a gym program was prescribed as part of his treatment. However, his condition progressed until clinical signs of radiculopathy were evident in the early part of 2009, prompting the referral to Dr Cherukuri. I find that those worsening symptoms were due to the natural progression of the condition, which became manifest on 13 May 2008. Dr Bentivoglio operated to relieve the effects of that injury. 132. I am satisfied on the balance of probabilities that but for the negligence of Rail Corp, Mr Donald would not have received the injury which progressed to a frank disc protrusion at L5/S1 in the early part of 2009."

The medical evidence

The primary judge reviewed the medical evidence of Mr Donald's treating doctors: Dr Ajam, general practitioner; Dr Cherukuri, neurosurgeon; Dr Manohar, consultant physician who performed an L5 and S1 selective nerve root sleeve block and an L4 and L5 facet joint blockade in July 2009; Dr Bodel, orthopaedic surgeon, to whom Mr Donald was referred by the workers' compensation insurer; and Dr Maxwell, orthopaedic and spinal surgeon, who was Rail Corp's medico-legal expert. On the appeal, Rail Corp's focus was on the evidence of Dr Maxwell, particularly his oral evidence.
It is convenient in the first instance to refer to the evidence of Dr Ajam and Dr Cherukuri, as summarised by the primary judge, and to which there was no challenge. Before doing so, it should be noted that Dr Hoffer, a general practitioner in practice with Dr Ajam, provided Mr Donald with a medical certificate for the shift from which he was away from work on 13 May 2008. Mr Donald then returned to work until 14 June 2008.
Mr Donald then saw Dr Ajam on 18 June 2008. Dr Ajam diagnosed Mr Donald with an "acute back injury/query lumbar disc protrusion/sacro iliac strain". As observed by his Honour at [53] Dr Ajam, after a period of conservative treatment, referred Mr Donald to Dr Cherukuri in early 2009. Dr Cherukuri reported to Dr Ajam on 17 March 2009 as follows: "Many thanks for referring Mr Donald who present to my rooms with history of acute onset of back pain when he was working on railway sleepers in May 2008 using a jackhammer. He had intense onset of pain and had to stop the work. For the past three months he noticed the pain radiating down the left leg up to the knee. He also reports paraesthesia in the left leg predominantly involving the little toe. There is no history of numbness."
On examination, Dr Cherukuri reported that Mr Donald had: "… minimal weakness of the left Extensor Hallucis Longus, which could be partially contributed by pain. He has diminished sensation over left S1 dermatomal distribution and minimal altered sensation over the left L5 dermatomal distribution. The reflexes are elicited well and are symmetrical."
Dr Cherukuri considered there was evidence on the CT scan of "lumbar spondylosis and left L5/S1 disk protrusion". Dr Cherukuri advised that Mr Donald should have an MRI scan, which was subsequently performed.
Dr Bentivoglio, the treating surgeon, performed lumbar surgery on Mr Donald on 20 April 2010. He was not called upon to give evidence at trial. In his first consultation report dated 17 February 2010, Dr Bentivoglio recorded Mr Donald as having had "mechanical low back pain for the 2 ½ years following a work injury whilst working on jack hammers". He recommended that Mr Donald be considered for an L5/S1 discectomy and fusion.
On 20 April 2010, Dr Bentivoglio performed an "L5-S1 pedicle screw fusion, decompression of both L5 nerve roots, bilateral interbody L5-S1 fusion cages with a posterior lateral bone graft". His Honour observed that although Dr Bentivoglio's operation note was not in evidence, it was "clear that he was operating to free up the L5/S1 nerve root and to stabilise that segment of Mr Donald's back".
In his medico-legal report dated 17 December 2014, Dr Bentivoglio expressed the opinion that "Mr Donald injured his back whilst working as a labourer". In response to a question about the proportion of any impairment due to pre-existing conditions, he stated that "there was no pre-existing condition before the relevant injury which occurred approximately 6 years ago".
Dr Bodel first saw Mr Donald on 11 May 2009, almost 12 months prior to Mr Donald's surgery. In his report dated 11 May 2009, Dr Bodel recorded the history given to him as being an injury suffered by Mr Donald at work on 13 May 2008. He did not make any reference to a further frank injury in about June 2008. Mr Donald's complaints at that time were recorded as being: "… constant unbearable back and left buttock pain; and … pain that radiates down the whole of the left leg to the lateral border of the left foot with associated numbness and tingling in the foot."
Dr Bodel summarised Mr Donald's injuries as: "Injury to the lower part of the back with a disc rupture at L5/S1; and Left-sided sciatica."
Dr Bodel also referred to the results of the CT scan taken on 30 June 2008, which he had seen on the first consultation with Mr Donald, and the MRI scan taken on 27 March 2009. He recorded the CT scan result as showing "a large left-sided disc prolapse at the L5/S1 level" and reported that the MRI scan showed "[a]t L5/S1 … a moderate broad left posterolateral disc protrusion".
Dr Bodel and Dr Maxwell provided a joint report dated 11 April 2013. They agreed that: "… the initial diagnosis was an L5/S1 disc protrusion to the left which from the history provided appears to have occurred on or about the [13]/5/2008." They accepted that there was: "… probably a pre-existing degenerative condition at the L5/S1 level which may have been partially responsible for the original disc protrusion and [Mr Donald's] failure to respond to conservative treatment initially."
In response to the following question posed for their opinions, "[w]hat effect does not being able to review the pre-surgical radiological investigations affect your opinions?", Dr Bodel and Dr Maxwell severally responded as follows: "Dr Bodel indicated that he had seen the pre-operative investigations including the CT scan and the MRI scan. Dr Maxwell has never … reviewed the original films and had to rely on the reports. Given the subjective variation of radiologists's reports, Dr Maxwell considers that he would certainly prefer to see the original films which should be able to be obtained from the radiology practices. It would particularly help to ascertain whether the original disc protrusion had the characteristics of an acute disc protrusion or an age-related disc protrusion or a normal variant."
On 18 June 2013, Dr Maxwell, having reviewed the MRI scan, provided the following separate report: "The sagittal views showed the S1 nerve roots very clearly and there was no evidence of nerve root compression. The longitudinal views showed some abnormality of the L5/S1 disc with modic changes in the vertebral bodies with oedema of the adjacent vertebral bodies, desiccation of the disc and narrowing of the disc which is a congenital variant. There is a disc bulge on the left side which looks more like a long term developmental lesion than an acute disc protrusion and there does not appear to be any S1 nerve root irritation on the longitudinal views. The transverse views show this apparent lesion which is narrowing the lateral recess but it does not appear to be causing S1 nerve root impingement. … There were some letters from Dr Bentivoglio, the treating neurosurgeon, in the notes provided. He initially saw him on the 16/2/2010. It was suggested he had mechanical lower back pain for 2 ½ years which had slowly deteriorated. He stated there was no evidence of neurological dysfunction. Dr Bentivoglio suggested he should be considered for an L5/S1 discectomy and fusion. It would not appear there was any evidence of radiculopathy clinically prior to the surgical procedure. He did develop a mild traction injury to his brachial plexus secondary to positioning on the table."
Subsequently, Dr Bodel and Dr Maxwell departed significantly from each other in their opinions as to the cause of Mr Donald's back pain. Both accepted that as at June 2008 when Mr Donald consulted Dr Ajam, there was no report of sciatica, nor was there an external disc protrusion. However, Dr Bodel was of the opinion that there had been some internal disruption of a disc which was quiescent but which subsequently developed to an external disc protrusion causing radiculopathy. Dr Maxwell considered that there was a back sprain or facet joint sprain.
Dr Bodel, in oral evidence, referred to the time deficit of about six weeks between the incident that "start[ed] it all off" and the appearance of radiculopathy, and still adhered to his view, given the history, his clinical findings and the CT scan, that there had been an initial internal disc disruption. Dr Bodel gave the following evidence: "WITNESS BODEL: Based on the history given by [Mr Donald] when first seen - that is, the history of the nature of his work and what happened to him after that particular date in May - it was my considered view, based on my clinical judgment and by reference to later scans, that it is likely that at that time he developed, at the very least, an internal disc disruption of the disc at the L5, S1 level, which is the lumbosacral junction. [COUNSEL]: What is the clinical significance of an internal disc disruption at the lumbosacral junction level? WITNESS BODEL: That it is an abnormality that is due to some structural change in the disc at that level, but at that stage it doesn't appear to exhibit any signs or symptoms even of sciatica or involvement of the nerve roots because it's still contained within its own structure. [COUNSEL]: What is it about a situation such as that that can lead to the development of those types of symptoms that you have just adverted to? WITNESS BODEL: If damage has occurred at that time, as I believe it probably did, then at some later stage an external rupture can occur because of the damage to the disc caused by that first event, and then a set of different or additional symptoms would flow, including leg pain, numbness, tingling, weakness and signs of sciatica or nerve root tension. [COUNSEL]: What type of situation is required for there to be a subsequent rupture of the type you have just adverted to? WITNESS BODEL: Anything from a relatively small innocuous or apparently innocuous event to a significant bending, twisting or lifting event. … … I would have thought that the nature of that work, which went on, as I understood the process of work, was for fairly lengthy periods of time without regular breaks, and it was over a number of weeks or maybe months that it went on before the really bad episode that prompted him to have to crawl and go and lie in the truck, that he is causing minor little trauma to the back, and then on that particular day when it became unbearable, some additional structural damage occurred. I would choose to call it as an internal disc disruption because there were no signs or symptoms as we - as far as we know, of involvement of the leg at that stage … But I am prepared [to state], based on history, clinical findings and the seeing of the CT scans and the MRI scans that that's the scenario that occurred." (
Dr Bodel accepted that "genetic factor[s]" were the prime cause of things "go[ing] awry" with Mr Donald's back but said that he still held the view that: "… inappropriate work practices may well add an element of risk and the development of internal disc disruption which at a later stage may have that magic external rupture causing the sciatica and the need for the surgery which eventuated in this circumstance."
Dr Bodel was "happy to accept" that there was no sciatica or external protrusion when Mr Donald went to see Dr Ajam on 18 June 2008. In the context of Mr Donald's case at trial that he suffered a further specific injury on 12 June 2008, Dr Bodel said: "So therefore something could have occurred, it could have been a back sprain, could have been something to do with the facet joints as [Dr Maxwell] opined earlier, it could be an internal disc disruption, it could be any of those sorts of things but it's certainly not an external disc disruption with a disc protrusion causing left-sided sciatica on that date."
The primary judge asked Dr Bodel whether, assuming that the first record of sciatica was in March 2009, that fitted with his hypothesis of an internal derangement of the disc in May or June 2008. Dr Bodel responded as follows: "… if the initial insult has not been a facet joint derangement, has not been a back sprain but some internal disc disruption if you believe in that concept as I do, then it can sit quiescent without sciatica and without an external rupture until sometime in the future. It can occur for all sorts of reasons."
However, Dr Bodel accepted that: "… there is a significant amount of speculation in what we are all saying here. I have proposed a hypothesis that I'm still happy with as a possibility or probability in this circumstance in the absence of any other evidence to the contrary."
It is plain from Dr Bodel's other evidence that in giving this evidence, he is to be regarded as having corrected "possibility" to "probability". This is made clear in Dr Bodel's explanation of the process involved in an internal disc disruption eventually becoming an external disc protrusion: "[COUNSEL]: … Dr Bodel in terms of your hypothesis that we've been speaking of, what is involved in the internal disruption is a form of biological cell mediated change is it not? WITNESS BODEL: Yes. [COUNSEL]: And it is most pronounced in the nucleus of the disc correct? WITNESS BODEL: Well, that's the internal part, that's the interior part, the fibrosis is the outside part. [COUNSEL]: And it ultimately becomes most evident in the annulus and end plate? WITNESS BODEL: Yes, that's when it starts to become painful and that's back pain, not leg pain. [COUNSEL]: And common structural changes occur and those structural changes can for example include tears in the annulus? WITNESS BODEL: Yes. [COUNSEL]: And of course associated with that situation it is more likely to be symptomatic? WITNESS BODEL: What form of - [COUNSEL]: Pain? WITNESS BODEL: Where? [COUNSEL]: In the area of the back? WITNESS BODEL: In the back, yes. [COUNSEL]: And of course those changes that I've just identified are changes which make the disc more susceptible to an eventual prolapse? WITNESS BODEL: I think that's the type of answer I gave to his Honour earlier. … [COUNSEL]: Assuming those sequences that I've just identified with you have taken place as a result of the initial trauma, in this case that you've hypothesised occurred on 13 May 2008, and assuming that there is no evidence of any other discrete frank traumatic event, it is on the balance of probabilities is it not more likely that the end rupture with radiculopathy had its origin in the traumatic occurrence of 13 May 2008? WITNESS BODEL: I have nothing further to add to that, I think that I accept that that is a reasonable hypothesis on the basis of the evidence as I've assessed it. [COUNSEL]: When you say reasonable hypothesis, would you accept that that is a more probable than not scenario, assuming the intervening matters I've put to you? WITNESS BODEL: Yes."
Dr Maxwell only saw Mr Donald after surgery and found no radiculopathy, although he accepted that that could have been improved by the surgery. He observed, however, that Dr Bentivoglio did not find any evidence of radiculopathy prior to the surgery. Dr Maxwell stated that his "impression" was that there had been "a discrete event which led to [Mr Donald's] pain and disability and radiculopathy which commenced shortly after", but that subsequently, he had seen the medical notes of Mr Donald's treating doctors "which made no reference [to] radiculopathy for at least seven months". In this regard, it appeared that the first record of reported radiculopathy was by Dr Cherukuri on 17 March 2009. Dr Maxwell said that a disc protrusion was only relevant if the patient also had radiculopathy.
Dr Maxwell did not subscribe to the theory that cumulative trauma may contribute to disc damage. He said that he did not know of "any evidence to suggest that heavy lifting causes a disc protrusion or disc damage" or that "jackhammering causes specific injuries to the disc". Dr Maxwell also stated that there was no evidence that physical activity was harmful or evidence that repetitive trauma, for example as occurred with weightlifters and footballers, gave rise to an increased incidence of back pain or disc protrusions. He said that "all this OH&S stuff and how you lift" was not based on evidence.
Dr Maxwell reiterated that cumulative trauma was not associated with disc protrusions. He also referred to studies that had been done on identical twins which demonstrated that: "… this accumulative injury model of - the changes we see on investigations are due to accumulated injury over the years is not the case, and most of the changes you see on investigations are not related to trauma in the absence of radiculopathy, and when you've got radiculopathy it changes everything."
Dr Maxwell expressed the view that Mr Donald could have suffered a back sprain or a facet joint sprain. He said that people who "present with acute back pain that comes on very suddenly during a certain movement" usually recover quickly, as appeared to have been the case with Mr Donald, because "after that he was attending a gym". It should be noted that this evidence was given in respect of an alleged incident in June 2008. In Dr Maxwell's view, there was no evidence of a disc protrusion in 2009, despite the fact that sciatica had been reported at that time. Dr Maxwell's view in this regard was based upon the fact that he did not consider that the MRI scan showed a protrusion.
Dr Maxwell also considered that the hypothesis of internal disc derangement was "very, very controversial". Regarding a diagnosis of internal disc disruption, he said: "It's a theory rather than being proven. There are no changes. There are no definite diagnostic features of it and there are no definite radiological features of it."
He also said: "… the diagnosis of disc protrusion is based on radicular symptoms, that is leg pain over and above that pain. There may have some back pain initially, but the main diagnosis of a disc protrusion is whether or not they have leg pain, because the disc itself is a fairly painless structure."
Dr Maxwell later explained: "… the disc is poorly innovated with pain fibres, it's not a particularly painful structure, the facet joints are far more highly innovated with pain fibres, far more likely to cause pain than a disc and overall we have no evidence that internal disc disruption as a clinical entity exists. Fundamentally discs change as people get older. The appearance of CT scans, MRI scans and X-rays is related to genetic factors and not due to trauma, so that investigations in the absence of radiculopathy are unhelpful in diagnosing back pain or the pathological process going on because they don't elucidate the cause of that back pain in the absence of radiculopathy unless there've got tumour, infection or a very large central disc protrusion, none of which are present in this case."
Rail Corp also relied on Mr Horrigan's evidence, as discussed above, that accumulated stress on the body does not necessarily make a person susceptible to injury. According to Mr Horrigan: "Accumulation of stresses can actually cause [a person] to become stronger and protect [the] body from injury … it's not … if there's an accumulation of stresses necessarily is harmful." However, as mentioned above, Mr Horrigan accepted that it would be better, if during a break from a particular activity, a more stressful physical activity were not performed. As he said, "it would be better on the body not to have more ongoing stresses".

Submissions

Rail Corp submitted that his Honour erred in accepting the opinion of Dr Bodel in circumstances where he failed to consider the competing evidence of Dr Maxwell and Mr Horrigan and gave no reason for his acceptance of Dr Bodel's evidence over the evidence of either of those two witnesses. Rail Corp submitted that taking the evidence as a whole, the link between trauma alone and disc injury remained a mere possibility. It contended that Mr Donald had not established that link as a matter of probability and that the possibility was even more remote where the Court was asked to draw the inference that the trauma said to have caused the internal disc disruption was caused or materially contributed to by Rail Corp's inappropriate work practices.
Rail Corp submitted alternatively that Dr Bodel's hypothesis rose no higher than a mere possibility, in circumstances where, in his oral evidence, he had agreed with Dr Maxwell that a genetic factor could be the cause for a disc to go awry. Rail Corp submitted that the Court should reject Dr Bodel's hypothesis that inappropriate work practices might add an element of risk and that an internal disc disruption might have the effect, as Dr Bodel said, of "that magical external rupture causing the sciatica and the need for the surgery".
Mr Donald submitted that if it was permissible for his Honour to accept Dr Bodel's evidence, then there was no error in his Honour's finding as to causation. He also submitted that it was open to his Honour to act upon the initial joint report and not to act upon Dr Maxwell's later evidence in which, it was contended, he resiled from his acceptance in that report that Mr Donald had sustained a disc protrusion in the incident which occurred on 13 May 2008.

Consideration

At the outset, it should be observed that Mr Donald's submission to the effect that Dr Maxwell "resil[ed]" from his opinion in the joint report involved an inaccurate reading of the joint report. In the joint report, Dr Maxwell qualified his position by stating that he would prefer to review the films to ascertain whether there had been "an acute disc protrusion or an age-related disc protrusion or a normal variant". The primary judge had understood as much when he observed at [117] that Dr Maxwell had given "cogent reasons for resiling from this agreement". Accordingly, the question whether there was error in his Honour's conclusion falls to be determined on the basis of whether Dr Bodel's evidence was sufficient to establish on the balance of probabilities that Mr Donald suffered an internal disc disruption and whether his Honour adequately exposed his reasoning as to why he preferred the evidence of Dr Bodel over that of Dr Maxwell.
The manner in which the evidence proceeded before his Honour was that each expert proffered his opinion as to whether the nature and conditions of Mr Donald's employment and the specific incident on 13 May 2008 when he experienced pain, had caused or materially contributed to the injury he eventually sustained, namely, a prolapsed disc.
Although it was not expressed this way by his Honour, on a reading of the evidence of the two medico-legal experts, Dr Maxwell's evidence presented as more dogmatic than Dr Bodel's. This was apparent from his evidence, to which reference is made above at [169], where Dr Maxwell expressed the view that there is no evidence that heavy lifting causes disc protrusions. He gave unsupported and undocumented evidence that this was apparent from the incidence of back pain and disc protrusions among weightlifters and football players.
Even if that was a correct statement, weightlifters and footballers could not be considered a representative group of persons who engage in heavy lifting. One might be able to add, as a matter of general observation of televised weightlifting events, that weightlifters do not merely bend over and pick up a weight. They bend from the knees and have other safety equipment to provide support for their backs. They are highly trained, often with coaches on site as they undertake the lifts. Similar observations may be made about footballers who are professionally trained. Further, Mr Donald's complaint was not in respect of picking up heavy objects of a known weight, as is the case with weightlifters. His complaint was in relation to the effect of jackhammering and lifting heavy weights. Dr Maxwell did not directly address the dual nature of this task, nor did he directly address the impact of jackhammering on a person's body.
Dr Maxwell also referred to investigations involving identical twins to the effect that changes in a person's discs are not related to accumulated trauma. However, that observation was stated at such a level of generality as not to be of assistance in this case. Dr Bodel, for his part, accepted that the studies of identical twins were important and had already accepted that genetic factors were the prime reason for disc problems. He nonetheless adhered to his view as to what had caused Mr Donald's disc protrusion.
Dr Maxwell's opinion was that the bulge which appeared in Mr Donald's CT scan taken on 30 June 2008 was a normal variant and that external disc protrusion was irrelevant without radiculopathy. Importantly, however, as I understand Dr Maxwell's evidence, he did not deny that there could be a hiatus between injury, the onset of radiculopathy and the onset of the radiological appearance of disc protrusion.
I am also of the view that Mr Horrigan's evidence did not provide the support that Rail Corp sought to obtain from it. In respect of jackhammering, he said that "a whole body vibration … is something that you want to have regular breaks from".
Finally, I am of the opinion that his Honour gave adequate reasons for not accepting Dr Maxwell's opinion. His Honour stated at [117] that quite apart from his earlier agreement in the joint report, Dr Maxwell's evidence that there was no impingement on the exiting L5/S1 nerve root was inconsistent with the greater body of medical evidence in the case. His Honour referred to Mr Donald's complaints of lower left back pain to Ms Calvert, a speech pathologist and Illawarra Brain Injury Service's rehabilitation coordinator on 30 May 2008, as well as to Dr Ajam's reference to a suspected disc protrusion on 18 June 2008 when he first saw Mr Donald.
His Honour at [118] referred to the fact that Dr Cherukuri found clinical signs consistent with a disc protrusion when he first saw Mr Donald and did not doubt the accuracy of the report of the CT scan. Dr Cherukuri was of the view that the clinical signs were consistent with the worsening of Mr Donald's condition and with radiculopathy. His Honour also observed at [119] that Dr Cherukuri thought that Mr Donald had pre-existing spondylosis and that that was consistent with the agreement of Dr Bodel and Dr Maxwell that there was a pre-existing degenerative condition that may have been partially responsible for the "original disc protrusion".
His Honour at [130] also observed that the operation performed by Dr Bentivoglio was one that Dr Maxwell performed for radiculopathy but that some doctors performed it for back pain. Dr Bentivoglio did not give oral evidence, but in circumstances where his reports referred to radiculopathy, as did the reports of Dr Cherukuri, it may readily be inferred that the reason for operative intervention was radiculopathy. His Honour also referred to Dr Bodel's findings on examination at the first consultation, which were all consistent with disc protrusion at that time.
His Honour's reasoning process, which I consider answers the complaint that his Honour did not give adequate reasons for not accepting Dr Maxwell's opinion, is found in the manner in which he addressed Dr Bodel's evidence. This is clear from the following passage, at [130]: "… Dr Bodel agreed that his hypothesis moves 'towards probability if there is no competing hypothesis or no competing history which is otherwise explained when this happened'. … given the findings I have already made, I am not satisfied that there is a competing hypothesis to that proffered by Dr Bodel. I have found that Mr Donald did not injure his back in the assault of 25 August 2001. That was the only matter that really represented any competing hypothesis. I accept consistently with the opinions expressed by Drs Maxwell and Bodel that Dr Bentivoglio operated to address signs of radiculopathy, that is to say, to address a disc protrusion in the presence of degenerative changes. It seems to me that Dr Bodel's opinion better fits in, viewed retrospectively for this purpose, with the facts as I have found them to be than any competing hypothesis."
It is apparent, therefore, that the primary judge, in the course of his fact finding, referred to the other medical evidence which was consistent with Dr Bodel's opinion and clearly articulated why he accepted Dr Bodel's evidence. There was no evidence that directly supported Dr Maxwell's view that there was no internal disc disruption. Importantly, contrary to Rail Corp's submission and as the primary judge found, Dr Bodel's evidence that Mr Donald suffered an internal disc disruption rose higher than a mere possibility. Like the primary judge, I consider that Dr Bodel expressly stated his opinion as a matter of probability.
There was no error, in my opinion, in his Honour's acceptance of the evidence of a medical specialist, such as Dr Bodel, that cumulative trauma could be a cause of an injury such as that sustained by Mr Donald. Dr Bodel's view was also consistent with the history given to Dr Bentivoglio and Dr Ajam as to the injury and the pain he subsequently suffered, to which his Honour referred at [127]. As his Honour explained at [129], in a further exposition of his reasons, Dr Bodel stated that Dr Cherukuri's findings were consistent with his view.
It follows that I would reject appeal grounds 5, 5A and 5B and cross-appeal ground 4 relating to causation.

Contributory negligence: appeal ground 6; cross-appeal ground 5

The primary judge at [135]-[137] rejected Rail Corp's claim that Mr Donald was contributorily negligent. His Honour stated that he could not identify any act or omission on the part of Mr Donald that amounted to negligence. Rather, his Honour considered that: "[Mr Donald's] injury arose simply from his performance of the work allocated to him by Rail Corp according to the system they instituted for him to work in." His Honour added: "In the particular circumstances of this case to find [Mr Donald] guilty of contributory negligence would be to permit parties owing to him non delegable duties to devolve those duties upon him. This is legally impermissible."
Rail Corp submitted that his Honour erred in rejecting the claim of contributory negligence in that he failed to consider what a reasonable person would have done in the circumstances that Mr Donald was in. Rail Corp relied upon the fact that Mr Donald had been trained in relation to working on and around railway lines as part of his "railway industry safety induction" and submitted that from that induction, Mr Donald knew that he had an obligation to look after his own safety, including when lifting, bending and twisting.
Rail Corp further submitted that Mr Donald knew that he should follow the procedures in which he had been trained and not put his own personal health at risk by undertaking activities that might cause him injury. In addition, Rail Corp referred to its document entitled "Manual Re-Sleepering", which it contended had been signed by Mr Donald. It submitted that that document set out safe work methods and that by signing the document, Mr Donald acknowledged that one of the controls to reduce or eliminate the risk of back injury was manual handling techniques, as well as rotating staff on repetitive tasks.
Rail Corp also relied upon Mr Thompson's evidence, upon which he was not cross-examined, that he had no memory of Mr Donald having asked to be partnered with another co-worker who could take his turn on the jackhammer, nor had Mr Donald ever complained to him. Rail Corp also referred to the evidence of Mr Mitic that Mr Donald did not make any complaints about his work duties.
Rail Corp submitted that the overwhelming evidence was that the system allowed workers to rotate tasks whenever they wanted and take breaks whenever they wished, so long as the work got done, and that they could ask for someone else to jackhammer if their partner did not do it. It submitted that despite being aware of these matters, Mr Donald failed to ask to be partnered with someone other than Mr Gonzales, and did not take the rest breaks to which he was entitled. In all the circumstances, Rail Corp submitted that his Honour should have found that Mr Donald was contributorily negligent and should have assessed that contributory negligence in the order of 15 to 20 per cent.
Staff Innovations adopted Rail Corp's submissions in relation to contributory negligence. In addition, Staff Innovations relied upon cls 7.2 and 7.3 of its Workplace Agreement which had been signed by Mr Donald and which was in the following terms: "7.2 The Employee will take all practicable steps to ensure their own safety while at work … 7.3 The Employee will report to management as soon as possible any accidents, incidents or hazards arising during the course of their employment. If the Employee has any concerns in relation to their safety … the Employee is to report them to their direct Manager."
Staff Innovations submitted that there was an ongoing failure by Mr Donald to raise any concerns with it in relation to Rail Corp's system of work. In addition, it submitted that Mr Donald had failed to take steps to ensure his own safety at work. It submitted, therefore, that the primary judge should have made a not insignificant allowance for contributory negligence "of between 15%-20%".
Mr Donald submitted that no error had been shown in his Honour's determination that he was not contributorily negligent. As his Honour had found, there was no identified act or omission of Mr Donald that amounted to contributory negligence. He simply worked in the system provided to him and did not disobey any directional warning from either Rail Corp or Staff Innovations. Mr Donald submitted that Rail Corp and Staff Innovations had failed to discharge their onus of proving that he had been contributorily negligent.

Consideration

In respect of the appeal by Rail Corp, the starting point for determining whether Mr Donald was contributorily negligent is the Civil Liability Act, s 5R, as set out above at [5]. As I have indicated, s 5S is not relevant in this case. The application of s 5R has been considered by this Court on numerous occasions. In Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72, I observed (Barrett and Gleeson JJA agreeing) that: "161. The effect of s 5R … is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case. 162. As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew ..."
It is also important to observe that when the court is determining whether a person has been contributorily negligent, the standard of care is that of the reasonable person in the position of the plaintiff: see s 5R(2). In Jurox Pty Ltd v Fullick [2016] NSWCA 180, Simpson JA (Rothman J agreeing), after referring to s 5R, stated at [85] that what was required for an assessment of contributory negligence was as stated in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 at 532-533 as follows: "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."
Notwithstanding the conceptual difficulties referred to in Grills v Leighton Contractors at [162] set out above, this passage in Podrebersek v Australian Iron & Steel expresses the same notion as the statutory provisions insofar as it relates to the conduct of a plaintiff and thus retains some utility for the purposes of assessing whether there has been and the extent of any contributory negligence on the part of a plaintiff. However, the primary reference must be to the statutory provisions.
Rail Corp's essential position was that Mr Donald should have taken breaks himself and asked for help. However, in my opinion, the manner in which Rail Corp permitted an ad hoc system of work to operate and the fact that it permitted Mr Donald to do all the jackhammering work meant that it was unlikely that a worker in his position would ask for help. I am also of the opinion that a quasi-employer in the position of Rail Corp could not expect an unskilled labourer such as Mr Donald to regulate his own work practices so that they were safe for him. That is the obligation of an employer or, in this case a quasi-employer with the same obligations as an employer.
I would reject appeal ground 6 and cross-appeal ground 5.

Whether Staff Innovations breached its duty of care to Mr Donald: cross-appeal grounds 1, 2 and 3

Grounds 1, 2 and 3 of the cross-appeal, in which Staff Innovations contended, in essence, that it had not breached its duty of care to Mr Donald, may be conveniently considered together.
The primary judge dealt with the liability of Staff Innovations at [133]-[134]. His Honour referred to the duty as being personal or non-delegable and cited Mason P's description of the duty in TNT Australia Pty Ltd v Christie at [47], where his Honour stated: "… in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care."
His Honour observed that, having found that Rail Corp was liable in negligence for failing to institute and maintain a safe system of work for Mr Donald, that negligence was within the scope of an employer's duty of care par excellence. His Honour stated that there was nothing on the facts he had found that suggested that Rail Corp's negligence lay outside the scope of Staff Innovations' duty of care as an employer.
To the extent that Staff Innovations relied on the investigations and enquiries of its general manager in 2008, Mr Bamford, his Honour found at [139] that as Staff Innovations' obligations were owed individually to Mr Donald, it was insufficient that Mr Bamford satisfy himself that generally the system of work was safe. Mr Bamford's evidence was that from the early 2000s, he attended the Sydney city underground approximately twice a year, during which he went into the tunnels to see the work being performed. He stated that: "It was my practice on the occasions of my visits … to approach each of Staff Innovation employees and ask him whether he had any concerns about the work he was required to perform."
His Honour inferred that it would have been in Mr Bamford's power to enquire as to the conditions under which each of Staff Innovations' employees worked, and considered that, whether by inspection or inquiry, if it had come to Mr Bamford's attention that Mr Donald was not working in a team like the others, he could have set that straight with Rail Corp.
His Honour had earlier at [99] stated that it was clear from the evidence of Mr Jim Iordanidis that "everyone jackhammered at their own convenience" and that "Rail Corp did not institute and maintain a system of work that required structured task rotation".

Submissions

Staff Innovations accepted that Rail Corp had breached its duty of care to Mr Donald. It also accepted that it had a non-delegable duty of care: see Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61. It submitted, however, that in determining whether an entity in its position breached its duty of care, it was necessary to be sensitive to the scope of the duty in the particular context. In this regard, it submitted that the scope of its duty was affected first by the degree to which it could control the system of work. As his Honour found at [138], "Rail Corp was overwhelmingly in control of all of the relevant activities underpinning negligence in this case". Staff Innovations also pointed out that it had not devised or instituted the system of work that was in fact implemented. It submitted that in those circumstances, "there's a different scope of duty so far as the absent employer is concerned": see Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 at [146].
Staff Innovations also contended that the following passage in Kondis v State Transport Authority dealt only with the circumstance of devising a safe system of work and had no application to this case as Staff Innovations played no role in devising the system of work. Rather, that was done by Rail Corp. In Kondis v State Transport Authority, Mason J said at 687-688: "As we have seen, the personal duty which has been recognized in the other cases which I have discussed, such as Dalton v. Angus, may rest on rather different foundations which have no relevance for the present case. The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed. That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor." (citation omitted)
Staff Innovations submitted that it was sufficient that Mr Bamford had required Mr Donald to inform him about all difficulties he had in performing the work.
Staff Innovations also submitted that there was no evidence criticising it for not having done what a prudent employer would have done in the circumstances. It pointed out that the expert evidence was only tendered against Rail Corp. It contended that in the absence of expert evidence, in circumstances where there was an instruction to Mr Donald before he commenced working with Rail Corp to report to Mr Bamford if he, Mr Donald, thought there was something wrong with his work conditions, there was no evidence that it had breached its duty of care to him. It further submitted that someone from Rail Corp, or even Mr Donald, should have given evidence of what would have happened had it undertaken an inquiry or an inspection.
Staff Innovations conceded that if the Court was against it on the question of the content of its duty, then Mr Bamford's evidence was irrelevant. It submitted, however, that his Honour's finding that had Mr Bamford undertaken an inquiry or an inspection, he "could have set that straight with Rail Corp" was a "weak" finding. It pointed out that his Honour did not use the language of "should" or "would", which would have indicated more clearly that the outcome would have been different. Staff Innovations also submitted that it was not clear what his Honour meant by "set straight".
Further, Staff Innovations submitted that his Honour erred in stating at [139] that "Mr Donald worked under those conditions from some time probably in September 2007". Staff Innovations also submitted that it would depend on which night of the week Mr Bamford might have conducted an inspection as to whether he would have ascertained that Mr Donald was not being provided with the assistance he needed as was the position with other employees.

Consideration

The nature and scope of an employer's duty to an employee was explained by the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12] in the following terms: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. 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."
The nature of the duty owed to an employee where the employer engages another, such as an independent contractor to carry out the employer's work, is not merely a duty to exercise reasonable care and skill. Rather, as Mason J stated in Kondis v State Transport Authority at 681: "… the employer in order to discharge his general duty of care for the safety of his employees must ensure that reasonable care and skill is exercised in relevant respects."
Accordingly, the content of the duty of care, and therefore the question of breach, falls to be determined having regard to the facts. This was emphasised by Gleeson CJ in Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; [2004] HCA 29 at [1]. His Honour, having observed that the respondent owed the appellant a duty of care, continued: "There is, however, an issue concerning the nature and extent of the duty. To address that issue, it is useful to begin by identifying the harm suffered by the appellant, for which the respondent is said to be liable, and the circumstances in which she came to suffer that harm. As Brennan J said in Sutherland Shire Council v Heyman, 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered'. The kind of damage suffered is relevant to the existence and nature of the duty of care upon which reliance is placed. Furthermore, a description of the damage directs attention to the circumstances in which damage was suffered." (citation omitted)
In Estate of the Late M T Mutton v Howard Haulage Pty Ltd, upon which Staff Innovations placed particular reliance, the employee was delivering grain to a number of farming properties. The appellants provided the machinery necessary for offloading the grain at their property. The employee's shirt became entangled in the unguarded machinery and he was seriously injured. The employee brought proceedings against the appellants, and the case was settled. The appellants then unsuccessfully brought contribution proceedings against the employer. On appeal from that decision, Ipp JA (Hodgson JA agreeing) observed at [147]: "… it was not reasonably possible for the respondent to have devised and implemented a safe system of work dealing with the specific circumstances involving the appellant's [machine] and the particular circumstances that obtained on the appellant's farm. The respondent was not aware of those circumstances and, in my view, considerations of reasonableness did not require it to be aware of them. Additionally, the respondent had no control over the [machine] and was not in a position to take appropriate measures to guard it. That is not to say, of course, that the respondent did not owe Mr Kelman a duty of care in the general terms expressed in Czatyrko v Edith Cowan University at 842 to 843, [12]. The means by which the respondent was required to discharge that duty, however, must be determined by the particular circumstances."
Spigelman CJ differed in his conclusion. His Honour observed, at [8], that whilst it was relevant that the machinery was provided by a third party, that was not determinative of the question of breach. His Honour considered that the case was sufficiently analogous to the facts in Czatyrko v Edith Cowan University and that there was a relatively simple alternative in relation to the manner in which the machine was used. Spigelman CJ also considered that the decision in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 was analogous.
The plaintiff in that case was employed by Andar, a subcontractor who provided outsourced services to a third party, Brambles, to make deliveries of linen to various customers at different sites. Brambles provided trolleys to carry the linen, and the plaintiff was injured when one of the trolleys jammed. The plurality held that Andar, as the employer, was liable for breach of its duty to provide a safe system of work and, accordingly, was liable to make contribution to Brambles, the third party head contractor. The plurality stated at [54] that as employer, Andar: "… 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 Andar to develop, and maintain, a methodology or system which would achieve that result."
The plurality concluded that Andar had failed to take reasonable steps to prevent the jamming of the trolleys, stating, at [57]: "It is not difficult to conceive of steps which reasonably could have been taken to reduce the likelihood of injury. Those steps might have involved a change in the design of the trolleys, a reduction in the amount of linen carried within them, or the alteration of the truck to ensure the correct placement of the trolleys during loading."
Staff Innovations was Mr Donald's employer and as such, it owed him a non-delegable duty of care, which it accepted. This was so notwithstanding that it hired his services out to Rail Corp and thus had not devised the system of work under which Mr Donald was required to work or been directly responsible for its implementation. In this regard, where a non-delegable duty of care is owed, the person or entity owing the duty will be liable regardless of any personal fault on their part, provided that the plaintiff establishes that the damage or injury "was caused by lack of reasonable care on the part of someone … within the scope of the relevant duty of care": TNT Australia Pty Ltd.
In TNT Australia Pty Ltd v Christie, Mason P referred to his decision in Lepore v State of New South Wales (2001) 52 NSWLR 420; [2001] NSWCA 112, in which he stated at [29]: "The expression 'non-delegable duty' is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious …" (original emphasis)
In my opinion, Staff Innovations' submission that as it had no control over the manner in which the work was performed, it had not breached its duty of care to Mr Donald must be rejected. As Mason P observed in TNT Australia v Christie at [67]: "In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees."
The fact that Staff Innovations was, apparently, unaware of Mr Donald's particular work circumstances meant either or both of the following: first, Mr Bamford did not undertake adequate inspections; and secondly, he did not speak to Mr Donald. Alternatively, to the extent that Mr Bamford discussed the manner in which the work was performed with Rail Corp personnel, I consider Staff Innovations to be liable, just as I consider Rail Corp is liable, for permitting Mr Donald to work in circumstances where even the de facto system of work did not apply to him.
Common law principles of contributory negligence apply in respect of Staff Innovations' cross-appeal. I have referred to the well-accepted common law position as stated in Podrebersek v Australian Iron & Steel. I do not accept that Mr Donald, a semi-skilled worker, departed from the standard of care of the reasonable person in not complaining to Staff Innovations about his work conditions. I would reject Staff Innovations' cross-appeal on this ground.

Conclusion

It follows that although Rail Corp has been partly successful on its appeal, it has not been successful in displacing his Honour's judgment against it. Its challenge to his Honour's inferential findings in [89] and [106], whilst not inappropriately made, were in many respects peripheral to the central question of whether it had breached its duty of care to Mr Donald. For that reason, I do not consider that this is a case where an appellant, who has had some success on the appeal, should have any reduction in the costs that it should pay to the respondent.
Finally, I should add, as will be apparent from the review of the evidence I have undertaken, I consider that the findings for which Mr Donald contended in his notice of contention are findings that his Honour should have made.
Accordingly, I propose the following orders: 1. Appeal dismissed; 2. The appellant to pay the first respondent's costs of the appeal; 3. Cross-appeal dismissed; 4. The second respondent to pay the first respondent's costs of the cross-appeal; 5. No order as to costs as between the appellant and the second respondent on the appeal or the cross-appeal.
McCOLL JA: I agree with Beazley ACJ.
MEAGHER JA: I agree with Beazley ACJ.

Amendments 08 May 2018 - Typographical error corrected at [191]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2018

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