Samways v WorkCover Queensland & Ors

GUARANTEE AND INDEMNITY - INDEMNITIES - CONSTRUCTION OF CONTRACT - whether the second defendant is obliged to indemnify the third defendant for claims for negligence, including claims caused by the third defendant's own negligence

Workplace Health and Safety Act 1995 (Qld), s 27A(2)

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 cited

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 cited

Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 cited

Davis v Commissioner for Main Roads [1968] HCA 10; (1968) 117 CLR 529 cited

DIB Group Pty Ltd trading as Hill & Co v Cole (2009) NSWCA 210

Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500 considered

Ellington v Heinrich Constructions Pty Ltd (2005) 13 ANZ Ins Cases 61-646; [2004] QCA 475 considered

Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; (2008) 72 NSWLR 1 considered

F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; (2005) 63 NSWLR 502 cited

Farrell v Queensland Newspapers Pty Ltd Unreported, Muir J 30 May 1997; upheld on appeal [1998] QCA 18 considered

Fraser v The Irish Restaurant and Bar Co Pty Ltd [2008] QCA 270 cited

Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 cited

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 cited

Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673; [2009] HCA 35 applied

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 cited

Nilon v Bezzina [1988] 2 Qd R 420 cited

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 applied

Schiliro Peppercorn Childcare Centres Pty Ltd (No 2) [2000] QCA 18; [2001] 1 Qd R 518 cited

Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 cited

Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213 cited

Wilkinson v BP Australia Pty Ltd [2008] QSC 171 cited

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 cited

[1] The plaintiff was injured on 6 December 2005 on a construction site when he walked into the raised bucket of a bobcat. The bobcat was parked close to where the plaintiff and other workers were preparing for a concrete slab to be poured. The plaintiff had been instructed by his supervisor to locate and retrieve some conduit pipe so that it could be used to bend bars that would tie together concrete slabs. The plaintiff says that he did not notice the raised bucket of the bobcat because his attention was on the ground. He walked into the bobcat's bucket and injured his left shoulder. He claimed damages for negligence and/or breach of statutory duty against:

• the first defendant which was his employer at the time;

• the second defendant which was in control of the site; and

• the third defendant which provided the second defendant with the bobcat and its operator

**The original first defendant, Tessman Concreting Pty Ltd ("Tessman"), was placed into liquidation, and on the first day of the trial I ordered that WorkCover Queensland be substituted as the first defendant.

[2] The threshold issue is whether the injury that the plaintiff suffered was caused by the negligence of any or all of the defendants. The plaintiff additionally relies on breach of statutory duties, and legal issues arise about whether breaches of the provisions of the Workplace Health and Safety Act 1995 (Qld) pleaded by him give rise to causes of action against the first defendant, the second defendant and/or the third defendant on proof of breach. If they do it will be necessary to consider whether any duty imposed by the Workplace Health and Safety Act was discharged by the relevant defendant and whether any defendant has a defence to the plaintiff's claim for breach of statutory duty.

[3] If the plaintiff establishes liability against any or all of the defendants, then an issue arises as to whether his damages are to be reduced on account of contributory negligence. In essence, each defendant claims that the plaintiff caused or contributed to his injuries by failing to pay sufficient attention to the position of the bobcat and failing to have regard to his own safety when moving around the construction site.

[4] Contribution and indemnity issues are joined between the defendants, including an issue about whether the second defendant is obliged to indemnify the third defendant pursuant to contract.

[5] A major issue is the nature and extent of the injuries suffered by the plaintiff as a result of the accident. The plaintiff claims that the incident caused him to suffer great pain and discomfort that has reduced his capacity to work and to pursue physical recreations. He also claims to have been clinically depressed as a result of the accident. The defendants contend that the plaintiff has grossly exaggerated the consequences of the accident. A related issue is the extent to which a back injury that the plaintiff suffered in June 2009 affects the assessment of his loss and damage.

The credibility and reliability of the plaintiff's evidence

[6] The resolution of liability and quantum issues depends, in part, upon the credibility and reliability of the plaintiff's evidence. The plaintiff's evidence was unsatisfactory in relation to the circumstances of the accident and its aftermath. He gave different versions of the path that he took before he walked into the bobcat's bucket. These are depicted on Exhibit 2. The revised version of the path drawn by him on a sketch depicted him walking around steel mesh which was stored on the ground one or two metres away from the bobcat. The plaintiff said that he was still looking on the ground for the plastic conduit when he struck the bobcat bucket with his left shoulder. This differs from the version recorded by Dr Gillett who saw the plaintiff for the purpose of a medico-legal report on 26 September 2006. Dr Gillett recorded the plaintiff's account that one of his co-workers called out that someone else had found the required bit of conduit and that the plaintiff was to come back to help with the process, as time was of the essence. On this version of events, the plaintiff was walking back to where he and others were preparing for a slab to be poured when he walked into the teeth of the elevated bucket of the bobcat. When this different version was put to the plaintiff, he said that he was still looking for the conduit and was walking past the mesh, some of which was protruding into his path, that he stepped around it and that this was when he struck the bucket. He says that "simultaneously" his co-worker yelled out "We've got it. We've got it. Hurry up". The plaintiff's conflicting versions of the circumstances of the accident reveal him to be an unreliable witness.

[7] The plaintiff admitted to giving inaccurate and misleading information to doctors who he saw for medico-legal purposes. The plaintiff's explanation for these inaccuracies was unconvincing. He suggested that his failure to qualify or better explain the things that he said was due to the way he expressed himself. However, despite the stress that the plaintiff was under in cross-examination, I found that he had little difficulty in communicating information. I find that his inaccurate and misleading accounts to medical specialists were given in order to enhance his case.

[8] The plaintiff's accounts to doctors of the extent of his shoulder injury and its debilitating effect are hard to reconcile with a covert recording of him playing touch football on 9 April 2007. The plaintiff was able to actively participate in an informal game of touch football that day. He was able to pass both ways, raise his left arm above his head and on one occasion control the football with his left hand raised well above his head. The plaintiff was also able to play rugby league in

mid-2006 for Wynnum Manly in the second grade of the Queensland Cup competition. He played for 20 minutes in the centres on 1 July 2006 before coming off the field due to a lack of match fitness. He says that he played that game in order to see if he was able to continue playing in that competition. The extent to which the plaintiff's shoulder injury permitted him to play football will require further consideration in the context of the issue of quantum. The present issue is the plaintiff's credibility.

[9] On 8 June 2007 the plaintiff told Dr Coyne that he had limited capacity for housework, could no longer do things like mowing the lawn and that he could not run or do ball work with the football team that he coached. The plaintiff admitted that it was inaccurate to say that he could not run or do ball work. On 15 January 2007 the plaintiff told Dr Todman that he was unable to play touch football. That was untrue. The plaintiff admitted that it was a lie. I find that the plaintiff deliberately exaggerated to medical practitioners the extent of the disability in his left shoulder. The plaintiff's preparedness to mislead medical practitioners to secure his own advantage causes me to have a general reservation about his credibility.

[10] In early December 2005 the plaintiff was employed as a permanent casual concreter by Tessman, and was employed on a construction site at 679 Boundary Road, Darra. The site was under the control of the second defendant ("De Luca"). De Luca's site supervisor was Mr Furlanis.

[11] On 5 December 2005 the third defendant ("Lynsha"), through an agent, agreed to supply to De Luca a bobcat and a bobcat operator. Late on the afternoon of

5 December, roughly at around 4.30 pm, a hydraulic hose on the bobcat that governed the tilting of its bucket failed. The bobcat was parked about two metres away from the edge of an area that Tessman employees were preparing to be concreted. The area was marked B1 on a sketch drawn by the plaintiff.

[12] The bobcat's bucket was raised by its operator, Mr Manning, to enable him to gain access to the failed hydraulic hose and to remove it with a spanner. It took him about two minutes to do so. Mr Manning left the bobcat parked with its bucket raised to a height of about 1.5 metres. He decided to take the failed hose to Pirtek, which supplied such hoses and had premises nearby, rather than wait for Pirtek's mobile repair service, which may have taken an hour or two to arrive. Pirtek's retail outlet was about to close. Mr Manning obtained the replacement hose, but did not return to the site later that afternoon to install it. He thought that the site would be shutting soon after he left. Instead, he returned early on the morning of

6 December 2005 at a time that he described as "roughly 6, 6.30". He replaced the hose and then went back to an excavator, which he operated at the instruction of the site supervisor, Mr Furlanis. After replacing the hydraulic hose on the bobcat

Mr Manning neither lowered its bucket nor returned the bobcat to its usual parking place close to the front fence of the construction site.

[13] The replacement of the hydraulic hose was probably completed by 6.30 am when the plaintiff commenced work. Neither the plaintiff nor his supervisor,

Mr Heilbronn, apparently noticed Mr Manning carrying out the replacement work. I infer that the hydraulic hose had been replaced by Mr Manning by 6.30 am.

[14] The plaintiff, Mr Heilbronn and another Tessman employee, Mr Costa, continued to prepare the area described in the evidence as B1 for concreting. A stack of reinforcing mesh was on the ground not far from B1. The mesh was about two metres away from the parked bobcat. The plaintiff noticed the bobcat. So did

Mr Heilbronn who was concerned about its bucket being in a raised position.

Mr Heilbronn spoke to Mr Furlanis about the danger posed by the bobcat being in the position that it was parked with its bucket raised. Mr Furlanis responded that he could not move the bobcat because he did not have its key. He also told

Mr Heilbronn that the bucket could not be lowered because its hose was blown. I accept Mr Heilbronn's evidence that he told the plaintiff and Mr Costa about the danger posed by the raised bucket and that they should "try to avoid it". The plaintiff denied having received any such warning, but I find his recollection is unreliable, and I prefer the evidence of Mr Heilbronn. I also reject the plaintiff's evidence that he remained on B1 and did not collect steel mesh from close to the bobcat. His evidence at trial in this regard is inconsistent with an earlier account that he gave in notices of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld).

[15] At around 7 am Mr Heilbronn instructed the plaintiff and Mr Costa to try to locate a piece of plastic conduit to be used to bend starter bars that had been inserted in the B1 area. Each of the Tessman employees went looking for a piece of conduit. The precise path that the plaintiff walked in search of conduit is unclear. I accept that he walked in the area shown on Exhibit 2 as B, which was the main area of the factory that was to be built. He was unable to locate a piece of conduit in that area, returned from it and walked in the area to the east of B1.

[16] The plaintiff has given conflicting versions of the path he walked and what he was doing as he walked into the elevated bucket of the bobcat. At some stage he prepared a sketch (not to scale) of the area and marked the path that he walked looking for the conduit pipe. According to this sketch he returned from the area marked as B and walked to the west of the stack of mesh and in the direction of the bobcat. This sketch was attached to a statutory declaration that he swore on

22 August 2006. In that statutory declaration he said that he was not directly facing the direction of the bobcat at the time of the incident but was walking, turning to his right hand side on a 40 degree angle and was struck by the "teeth" of the bucket on his left shoulder.

[17] The plaintiff was examined by Dr Gillett at the request of his lawyers for the purpose of a medico-legal consultation. The plaintiff reported to Dr Gillett on

26 September 2006 that as he was trying to find the required piece of conduit one of his co-workers called out that someone else had found it and that he was to return. According to this version of events, the plaintiff "then turned and walked back to where he was working and walked into a bobcat, which was left in his path with the bucket in an elevated position". The plaintiff told Dr Gillett that he walked "straight into the teeth of the bucket and hit his left shoulder".

[18] At some stage the plaintiff altered his account of the path that he took. At some time prior to when Mr McDougall prepared an engineering report dated

5 May 2009, the plaintiff indicated that the path of travel shown on the sketch that he prepared was "not 100% accurate". In his evidence in chief the plaintiff marked in red on the same sketch a different path. It depicts a path by which the plaintiff walked initially to the eastern side of the mesh before turning to his right and in a westerly direction towards B1. On this version of events, the plaintiff walked several metres on a path which included the gap of a few metres between the bobcat and the stacked mesh. The plaintiff's sketch depicts the bobcat as being parked on a 45 degree angle to this path with its bucket facing north-west. However, other witnesses, whose evidence I prefer, stated that the bobcat was parked with its bucket facing west.

[19] The plaintiff's evidence in chief was that there was a distance of about two metres between the mesh and the bobcat and that he was still looking on the ground for the conduit pipe that had been requested at the time of the accident. He said that he struck the bobcat bucket with his left shoulder, was knocked off balance and went to the ground on one knee. He said that during this time Mr Heilbronn had been telling him to hurry up. Under cross-examination, and when confronted with the conflicting versions given by him of the circumstances of the incident, the plaintiff said that he walked a distance of some eight to ten metres after being told that a piece of conduit had been found before he walked into the teeth of the bobcat. He said that he was looking at the ground and where he was going. Even though he had been told to return to the site because a piece of conduit had been found and there was no need to look for another piece, he said that "maybe" he was looking for a bigger bit of conduit or a bit of conduit that would do the job.

[20] In his evidence at trial the plaintiff added a detail which had been omitted from earlier versions. He said that he noticed a sheet of mesh that was protruding out of the stack that he had to walk around at about the time he struck his shoulder. No mention of the protruding mesh had been given by the plaintiff until shortly before the trial. It was something that the plaintiff had "overlooked", and he remembered it after "getting grilled". He denied that it was a false memory.

[21] The plaintiff's evidence was highly unsatisfactory concerning the sequence of events. For example, he said that he struck his shoulder "simultaneously" with the call from a fellow worker that the conduit had been found. On another version he walked several metres between this call and hitting his shoulder. More importantly, the path of travel on different versions is very different. The plaintiff gave no satisfactory explanation as to why the path that he originally marked was wrong. The steel mesh was marked on this original sketch and the plaintiff marked a path to the west of it. This was the sketch adopted in his statutory declaration. I conclude that it is a more reliable indication of his probable path than the path later marked in red. I find that the path marked in red was drawn by the plaintiff in order to enhance his prospects in this litigation on the basis that he was walking through a relatively narrow gap between the steel mesh and the bobcat.

[22] I find that the plaintiff walked into one of the teeth on the raised bucket of the bobcat, and did so after being called back to the site after another worker had found the required piece of conduit pipe. The plaintiff was probably looking at the ground at the time. The area in which he was walking sloped from the vicinity of the steel mesh to the level of B1. The drop was about two metres. The dirt slope and the possibility of loose objects being on the ground warranted the plaintiff looking at the ground in front of him. He was wearing a safety helmet at the time and this may have restricted his peripheral vision of the bobcat's bucket as he focused on the ground in front of him. It is possible that he was still looking for another piece of conduit, despite being told to return. The general unreliability of the plaintiff's evidence does not permit me to conclude that this is probable. The plaintiff's evidence about this possibility was couched in terms of "maybe", and was given in an unconvincing manner.

[23] The plaintiff was walking at a normal pace. He did not suggest that he ran or rushed back to the site in response to any call to hurry up. The sketch drawn by him is not to scale, and one cannot be sure of the precise position of the plank which had been placed over a boxed trench. The Tessman workers used this plank to walk between B1 and the steel mesh. The plaintiff was probably walking in the general direction of this ramp in order to return to B1. The raised bucket of the bobcat was in his path, but he did not see it because he was focused on the ground and did not take the precaution of looking up. If he had looked up he would have seen the bucket of the bobcat and avoided contact between it and his left shoulder.

[24] The third defendant submits that because of the conflicting accounts given by the plaintiff about the circumstances in which the accident occurred, I should not be satisfied of the circumstances in which he was injured and therefore the plaintiff has failed to discharge his onus of proof. Reliance is placed upon Farrell v Queensland Newspapers Pty Ltd.[1] In that matter the plaintiff alleged that he was injured on

21 February 1992 whilst pulling a heavy steel table that was stacked with newspapers. Muir J (as his Honour then was) did not find the plaintiff to be a reliable witness, and was not persuaded that he had an actual recollection of sustaining his injury on a particular occasion whilst pulling a laden table. Other versions given by the plaintiff of his injuries did not link it to such a particular incident. Reasonably contemporaneous records recorded the plaintiff as having complained of an injury whilst lifting. There were other difficulties with the plaintiff's version of events. The Court of Appeal declined to overturn the dismissal of the plaintiff's claim and observed that the appellant's task in doing so was made all the harder where all the contemporaneous documents tended to support rather than throw doubt on the view which Muir J had reluctantly adopted. The circumstances of the present case are distinguishable. I am persuaded that the plaintiff was injured on the date alleged in the manner alleged by him, namely that he walked into the teeth of the raised bucket of the bobcat. Although the actual incident was not observed by persons on the site the plaintiff immediately reported it and received treatment from his general practitioner for his injury the same day. The unsatisfactory aspects of the plaintiff's evidence about the path taken by him before the accident do not persuade me to not be satisfied that his left shoulder was injured when he walked into the bobcat's bucket.

[25] I shall deal with the plaintiff's claims for negligence against Lynsha, De Luca and Tessman in that order. The conduct of Lynsha's employee, Mr Manning, created the risk. De Luca and Tessman are alleged to have taken inadequate steps to remove or reduce that risk.

[26] Leaving the bucket of the bobcat in a raised position on such a worksite gave rise to a clearly foreseeable risk of injury. Mr Manning owed a duty of care to the plaintiff and other workers in the vicinity of the bobcat. The content of that duty and the issue of breach focus attention upon the steps that could have been reasonably taken to remove or reduce that risk. The magnitude of the risk was significant.

Mr Heilbronn readily appreciated the risk when he saw the raised bucket of the bobcat and he raised the matter with Mr Furlanis. Mr Furlanis could not recall the matter being raised with him, but readily accepted that it is not safe to leave a bobcat's bucket elevated with its tines sticking out. He accepted that this was especially so if workers are in the area and that such a vehicle should have been parked elsewhere on the site so as to not create a hazard for pedestrians in the area. Mr Furlanis accepted that if he had been on the site in the morning and seen the machine with its tines raised he would have barricaded it if he had noticed it.

[27] Mr Manning, as operator of the bobcat, was obliged to take reasonable care to prevent the raised bucket of the bobcat causing injury to a worker on the site. Leaving the bobcat parked where it was with its bucket raised was an unsafe practice. I accept Mr McDougall's unchallenged evidence concerning the incidence of workplace injuries caused to pedestrians who do not detect obstructions above ground level that are positioned in their path of travel. Proper practice for an operator in Mr Manning's position was to park the machine in a designated place away from pedestrian traffic or at least to lower its bucket onto the ground. This appears in the unchallenged parts of Mr McDougall's report. Such safe practices are understood in the construction industry. Unfortunately, they were not understood by Mr Manning.

[28] The third defendant's bold submission that there is "no evidence of negligence against the third defendant" cannot be accepted. The third defendant submits that the bobcat was a large piece of machinery that was "easily discernible by anybody keeping a proper lookout to the standard imposed on every individual by the law." It contests the proposition that the presence of the bobcat gave rise to a risk of injury, requiring Mr Manning to move it. Counsel for the third defendant makes the submission that in the light of the evidence of three "reasonable men", namely

Mr Heilbronn, Mr Furlanis and Mr Manning, the presence of the bobcat gave rise to no such risk. This submission is untenable. Mr Heilbronn's evidence was that the presence of the bobcat did pose a risk. Mr Furlanis gave evidence that he did not see the bobcat with its tines raised on the morning of the incident. However, his evidence in this regard cannot be accepted and counsel for the second defendant correctly conceded that Mr Heilbronn's evidence that he made Mr Furlanis aware of the problem on the morning of 6 December 2005 should be accepted. Mr Furlanis' evidence concerning the danger posed by an elevated bucket undermines, rather than supports, the third defendant's submissions on liability.

[29] The third defendant's submissions that the presence of the bobcat with its raised bucket did not give rise to a risk of injury, requiring it to be moved, are unsupported by acceptable evidence concerning safe practice. They only find support in the

self-serving evidence of Mr Manning that "a bright red Bobcat in the middle of the paddock is pretty hard to miss." The bobcat may have been painted red, but its bucket was not. It was not parked in the middle of a paddock. It was parked a few metres away from the area to be concreted and a few metres away from the steel mesh that was to be used by the concreters. Mr Manning accepted that he would not ordinarily leave his bobcat in the middle of a work area with its bucket raised, but would park it away from such a place. By the time of the accident he had repaired the bobcat, and was using an excavator. After he had fixed the bobcat there was nothing to stop him from moving it. Instead, knowing that men were to work in the vicinity, he chose to take the shifting spanner back to the excavator, and then start work on the excavator. When first cross-examined about whether there was anything to stop him from moving the bobcat after it was fixed, Mr Manning answered "No". Later, he seemed to recall that the keys might have still been up on the excavator, with the excavator key. I found this belated recollection of the possibility of the keys not being in his pocket an unreliable recollection. In any event, it would have posed little difficulty to walk a relatively short distance to the excavator, retrieve the bobcat keys and move the bobcat before going to work on the excavator. He may have simply forgotten to move it.

[30] It was an easy matter for Mr Manning to move the bobcat or to lower its bucket once he had repaired it on the morning of 6 December 2005, provided he had the keys. He had the keys or easy access to them. A significant risk was posed to workers by leaving the bobcat with its bucket raised in the middle of a worksite.

[31] Given the risk of serious injury, the degree of probability of its occurrence and the minimal inconvenience that would have been occasioned to Mr Manning in moving the bobcat after it had been repaired, I conclude that Mr Manning breached his duty of care and his employer, the third defendant, is vicariously liable for his negligence.

[32] If Mr Manning had moved the bobcat once the hydraulic hose was fixed to its usual parking place, where its other buckets were stored, then the accident would not have occurred. Mr Manning's negligence was a substantial cause of the plaintiff's shoulder injury.

[33] De Luca accepts that it owed the plaintiff a duty to take reasonable care. This is an appropriate acknowledgment of its common law duty in the circumstances. It was in control of the worksite. In that regard, its position can be likened to that of an occupier of work premises.[2] The High Court in Leighton Contractors Pty Ltd v Fox[3] considered the position of a principal contractor in respect of a claim for personal injuries by an individual whilst working as a subcontractor. Their Honours stated:**

"[48] It may be accepted that (the principal contractor), as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. However, this says nothing about whether (the principal contractor) owed a duty to (the plaintiff) to take reasonable care to prevent him suffering injury on the site as a result of the negligent conduct of (a sub-contractor). The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken. ...

[49] The obligation imposed on (the principal contractor) under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads & Traffic Authority (NSW) v Dederer,[4] 'whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden'."

**[34] The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees.[5] However, in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.[6]

[35] De Luca submits that it discharged its duty to take reasonable care by monitoring the situation on the afternoon of 5 December 2006 and, having been led by

Mr Manning to understand that the bobcat was to be repaired, submits that it was reasonable to leave it on site. De Luca further submits that it discharged its duty of care by attending the site on the morning of 6 December 2005 and discussing the matter with Mr Heilbronn. However, Mr Furlanis' discussion with Mr Heilbronn highlighted the danger the bobcat posed to workers on the site. It is possible that at the time of this conversation Mr Furlanis did not appreciate that the bobcat had been repaired and was able to be moved. His evidence in chief was that he did not notice the bobcat on the morning of 6 December 2005 and gave no thought to it because it should have been fixed. However, the situation in relation to the bobcat was brought to his attention by Mr Heilbronn, and, according to Mr Heilbronn, the only explanation given by Mr Furlanis for not moving the bobcat was that he did not have the keys. Having had the matter brought to his attention, it was within the power of Mr Furlanis to direct Mr Manning to shift the bobcat to a safer location. He could also have directed that it be fenced off in the event of a delay in having it moved. Bright plastic barricading material could have been erected on star pickets so as to isolate the bobcat and its bucket from work areas. Mr Furlanis accepted that if he had been on site on the morning of the incident and seen the bobcat with its tines raised he would have barricaded it if he had noticed it.

[36] In circumstances in which Mr Furlanis was alerted to the danger and was in a position to address the risk posed to workers, I consider that it was unreasonable for him to not direct Mr Manning to move the bobcat or, if the bobcat could not be promptly moved, to not barricade it. The fact that he did not personally have the keys to the bobcat did not disable him from exercising control over the situation. The terms of the hire agreement between Lynsha and De Luca placed Mr Manning under the control of Lynsha, and therefore subject to Mr Furlanis' directions.

[37] It was unreasonable for Mr Furlanis to fail to promptly direct Mr Manning to move the bobcat to a safe position once it had been repaired. Alternatively, he should have arranged for it to be barricaded whilst it remained in its parked position, with its bucket elevated. I am satisfied that Mr Furlanis was negligent.

[38] Had Mr Furlanis directed the bobcat to be moved or barricaded then the accident would not have occurred. De Luca is vicariously liable for Mr Furlanis' negligence.

[39] My findings of causative negligence against De Luca and Lynsha in having failed to move the bobcat after it was repaired make it unnecessary to consider other grounds of negligence against those defendants. It is unnecessary to address the issue of whether it was unreasonable to leave the bucket elevated overnight and before the repairs were performed early on the morning of 6 December 2005. I should add, however, that the bucket had to be raised to enable Mr Manning to remove the blown hose in order to quickly source a replacement. It seems likely that the bucket could have again been lowered. This may have involved some litres of oil being lost, and necessitated cleaning up oil-soaked dirt after the repairs were completed. Mr Manning had to clean up about three litres of oil that were lost in raising the bucket. Similar quantities may have been lost if the bucket had been again lowered and then raised in preparation for replacing the hose. The task of cleaning up the spilt oil was not an onerous one. Although the discharge of some additional litres of oil on the ground posed workplace and environmental issues, such a course was reasonable in the circumstances if there was likely to be a lengthy delay in replacing the hose. It is unnecessary to decide whether leaving the bobcat with its bucket elevated overnight, rather than lowering it at the risk of discharging more oil, amounted to negligence. The matter was overtaken by events, namely the repair of the damaged hydraulic hose. The failure to move the bobcat to a safe location after the repairs were effected was the primary cause of the accident.

[40] The plaintiff's employer, Tessman, owed him a non-delegable duty to take reasonable care to avoid foreseeable risk of injury to him. The content of that duty may depend upon whether the work is being undertaken on the employer's own premises.[7] However, this is not a case in which an employee was sent by an employer to work on the premises of a third party in circumstances in which the employer was not aware or should not have been aware of a danger that existed on the premises. On the contrary, Mr Heilbronn was aware of the danger posed to Tessman employees and others in the vicinity of the bobcat.

[41] The first defendant's submissions correctly identify the issue as whether the plaintiff has demonstrated by direct evidence or reasonable inference that Tessman unreasonably failed to take measures or adopt a means reasonably open to it in all the circumstances which would have protected the plaintiff without unduly impeding accomplishment of the required task. It correctly submits that the plaintiff must demonstrate that there was a risk of injury that was reasonably foreseeable, that the defendant could have taken steps to remove that risk and that the failure to take such steps was unreasonable.[8] The first defendant correctly concedes that the risk was reasonably foreseeable. It emphasises that Tessman's putative liability as employer does not rest simply upon its duty being a non-delegable one. To be liable it must have itself failed to take reasonable care. The law does not impose a duty to prevent potentially harmful conduct. It imposes an obligation to exercise reasonable care. The assessment of breach depends on the correct identification of the relevant risk of injury and must be assessed prospectively, not retrospectively.[9] Such an assessment must be made in the manner described by Mason J (as his honour then was) in Wyong Shire Council v Shirt.[10] Accordingly, the issue of whether Tessman exercised reasonable care in the circumstances must be determined from the perspective of Mr Heilbronn, avoiding hindsight bias.[11]

[42] The plaintiff's case of negligence against Tessman is that Mr Heilbronn was negligent in:**

"(a) allowing the Plaintiff to continue working in the area adjacent to the Bobcat;

(b) failing to barricade the area surrounding the Bobcat;

(c) failing to attach any form of high visibility warning to the bucket of the Bobcat so as to alert persons of the presence of the bucket;

(d) failing to ensure that Furlanis removed, lowered the bucket or barricaded the area surrounding the Bobcat."

**[43] Mr Heilbronn identified the risk of injury and considered that the magnitude of the risk was sufficient to request Mr Furlanis to remove the bobcat from the work area or to lower its bucket. He did not direct the employees under his supervision to not work in the area or to barricade the bobcat. He instructed them to "try to avoid it". He saw it as being the principal contractor's responsibility to barricade the bobcat. However, the principal contractor, Lynsha, did not do so and did not take steps to move the bobcat or lower its bucket. The issue is whether in these circumstances the exercise of reasonable care by Tessman obliged Mr Heilbronn to take one or more of the steps submitted by the plaintiff.

[44] The third step, namely attaching a form of high visibility warning to the bucket, can be briefly addressed. Strictly speaking, attaching such an item to the bobcat would have amounted to a trespass. More importantly, it is unlikely to have made a difference. The plaintiff failed to observe the bobcat's bucket, and may not have seen a colourful warning device attached to it.

[45] The fourth matter relied upon by the plaintiff is failing to ensure that Mr Furlanis removed the bobcat, lowered the bucket or barricaded the area surrounding the bobcat. The short response to this submission, which I accept, is that Mr Heilbronn did not have authority over the first defendant so as to dictate what it did in this regard. The issue then becomes whether Tessman failed to take reasonable care by itself failing to barricade the area surrounding the bobcat and by allowing the plaintiff to continue to work in that area.

[46] The plaintiff was not specifically directed to continue to work in the area in which he was injured. He was earlier told to "try to avoid" the bucket when he and others were collecting steel mesh from the stack near it, and was later asked to find a piece of conduit. He was not specifically directed to go near the bobcat in order to find a piece of conduit, but he was not again told to avoid that part of the site when looking for conduit. However, the earlier warning to try to avoid the bobcat was not withdrawn and continued to apply.

[47] The process of managing exposure to risks established by the Workplace Health and Safety Act does not determine the content of reasonable care at common law. However, Mr Diehm SC for the first defendant helpfully pointed to s 27A(2) which provides:**

"To properly manage exposure to risks, a person should consider the appropriateness of control measures in the following order -

(b) if eliminating the hazard or preventing the risk is not possible, minimising the risk by measures that must be considered in the following order -

(i) substituting the hazard giving rise to the risk with a hazard giving rise to a lesser risk;

(ii) isolating the hazard giving rise to the risk from anyone who may be at risk;

**[48] By instructing the plaintiff to try to avoid the bobcat Mr Heilbronn took what the Act would describe as an administrative measure rather than isolating the hazard by erecting a barricade. The analogous issue in the context of a common law duty of care is whether it was sufficient to warn the plaintiff to avoid the bobcat. I consider that the issue is a finely-balanced one, and Mr Diehm SC did not submit otherwise. One must avoid the benefit of hindsight. The issue is not whether all reasonable steps were taken, but whether the steps that were taken were reasonable in the circumstances.

[49] Mr Heilbronn appreciated the risk that the raised bucket of the bobcat posed to individuals working in its vicinity. It was because he identified the risk and presumably realised the limitations on simply warning workers to try to avoid it that he asked Mr Furlanis to move the bobcat. Mr Furlanis was unable or unwilling to do so at that time. This left the safety of Tessman's employees largely in the hands of its employer. De Luca as principal contractor itself had a responsibility to remove the threat to the safety of workers on the site. Its failure to remove the danger meant that until the danger was rectified Tessman had "an obligation to ensure its workers (were) not subjected to it, if necessary, by refusing to allow them to carry out tasks where they may encounter the danger."[12] After some hesitation, I have concluded that it was not reasonable for Mr Heilbronn to simply warn the plaintiff and Mr Costa of the danger. The danger was such that they should have been excluded from the area in which the bobcat was situated until it was either moved or barricaded. The task assigned to the plaintiff of looking for conduit required him to focus his attention on the ground and doing so whilst walking in the vicinity of the bobcat carried the risk of injury, despite the earlier warning.

[50] It also was open to Mr Heilbronn to arrange for a simple plastic barricade supported by star pickets to surround the bobcat and its bucket. Barricading material was available. It could have been erected fairly easily. The first defendant submitted that erecting such a barricade was tantamount to interfering with another contractor's property and regard should be had to the conflicts that may arise on construction sites where a contractor, dissatisfied with the response of the principal as to a hazard alleged to arise from another's equipment, chooses to isolate the equipment by barricading it off. The erection of a barricade would not have interfered with the operation of the bobcat. If and when Mr Manning or

Mr Furlanis, or both of them, wanted the bobcat removed, the barricade could have been easily removed. Such a barricade did not interfere with the operation of the bobcat in the way that a wheel lock or removal of an essential part would have.

Mr Heilbronn was not to know how long the bobcat might be expected to remain parked with its bucket raised. For all he knew it may have remained there for a matter of hours and continued to pose a danger to employees working in its vicinity. The risk of an employee coming into contact with its bucket was not slight. It was a real risk. Permitting the plaintiff to continue to perform work, particularly searching for conduit in the vicinity of the bobcat, posed an unreasonable risk of injury.

[51] In circumstances in which Lynsha and De Luca had neglected to cause the source of the danger to be removed, Tessman had an obligation to ensure that its workers were not unreasonably subjected to it. Reasonable care in the circumstances required Mr Heilbronn to direct the Tessman employees to not carry out tasks in the vicinity of the bobcat, not simply to warn them to try to avoid it. If Tessman wanted its employees to continue to work in the area, either by collecting mesh from the stack, searching for conduit or undertaking other tasks, reasonable care in the circumstances obliged it to barricade the area surrounding the bobcat.

[52] I conclude that Tessman was negligent and that if it had directed its employees not to carry out tasks in the area or if it had barricaded the area surrounding the bobcat, then the accident would not have occurred.

[53] My findings that each defendant was negligent makes it unnecessary to address their alleged breaches of statutory duty and the legal issue of whether such a breach gives rise to a cause of action.[13]

[54] The plaintiff failed to pay sufficient attention to the bobcat and failed to have regard to his own safety when moving around the construction site. The issue is whether his failure should be characterised as mere inadvertence, inattention or misjudgment.[14] This was not a case in which the plaintiff's inattention was "bred of familiarity and repetition".[15] The plaintiff says that he was recalled from his search for the conduit, and Mr Heilbronn accepted that he probably gave such an instruction. However, there is no evidence that the plaintiff was rushing back in response to this call. The plaintiff had been looking towards the ground for conduit, but the search for conduit was called off. On the version of events that the plaintiff gave he was able to walk several metres after the search was discontinued before he hit the bucket. However, I have rejected his version of the path that he took and found that he probably walked in a different direction. Still, if he had ceased searching for the conduit and walked a number of metres before hitting the bucket then he would have had some time to raise his eyes from the ground and notice the obstruction to his path posed by the bobcat's bucket.

"Mr Samways did not detect the existence of the tooth extending from the raised bucket of the bobcat in his path of travel.

In an accident such as this, it is very easy to have a simplistic notion that people should pay attention and watch where they are walking. However it fails to take into account the fundamental ergonomic issues associated with visual information processing.

If a hazard, such as this tooth extending from the raised bucket of the bobcat, is to be avoided by pedestrians, its presence must first be detected. Detection will primarily be a function of visual perception and expectation.

Therefore, one only has to imagine a person moving around a construction site and focus on objects in the visual environment at foot level to understand how the tooth extending from the raised bucket of the bobcat which is outside of the field of view (or at least well into the peripheral field of view) can fail to be detected.

Mr Samways was moving about outdoors where no other hazards at head height would be expected.

Whilst the bobcat had been in position all morning with bucket raised, it is foreseeable that this piece of information may not be recalled at the critical time."

**[56] Even after the search for conduit was called off, the plaintiff was required to negotiate his way around the site and his primary focus would have been on the ground in front of him. The area between the bobcat and the area described as B1 to which he was returning was a bank that dropped a few metres and regard for his own safety required him to maintain his primary vision towards the ground. Despite the warning that had earlier been given to him about trying to avoid the bobcat, being a warning that he presumably forgot, he was walking outdoors, not indoors where restrictions on head height might be expected.

[57] Notwithstanding these considerations in the plaintiff's favour, neither the task required of him at the time of the accident (returning to B1 and abandoning the search for conduit) nor regard to his own safety required him to have his vision fixed on the ground immediately in front of him. The exercise of reasonable care for his own safety required him to glance up from the ground regularly to avoid potential hazards. His failure to do so cannot be described as mere inadvertence, inattention or mismanagement. It justifies a reduction of his damages by

20 per cent on account of his contributory negligence.

[58] Issues of contribution between defendants arise. I have regard to the degree of departure from the standard of care of a reasonable person and also compare the relative importance of the conduct of the parties in causing the accident.

[59] Lynsha's negligence amounted to a significant departure from the standard of care required of it and was a significant cause of the accident. It created a hazard by leaving the bobcat with its bucket still raised after the repair. The simple step of moving it to a safe place would have removed the hazard.

[60] De Luca failed to address the danger that Lynsha's employee, Mr Manning, created. It did so in circumstances in which it was in control of the site and able to direct

Mr Manning to move the bobcat or lower its bucket. Its failure to do so amounted to a significant departure from the standard of care required of it in circumstances in which Mr Heilbronn alerted it to the danger. The fact that Mr Furlanis did not have the keys to the bobcat and therefore was not in a position to personally move it did not relieve him of the obligation of directing Mr Manning to move it or locating the keys himself.

[61] Tessman's response to the danger that the respective defaults of Lynsha and

De Luca created was unreasonable in the circumstances. However, Tessman did attempt to rectify the situation by warning its employees of the danger and taking the matter up with Mr Furlanis.

[62] I consider that a just and equitable apportionment between defendants having regard to the extent of their responsibility for the plaintiff's injury is 10 per cent against the first defendant (which assumes the liability of Tessman), 30 per cent against the second defendant (De Luca) and 60 per cent against the third defendant (Lynsha).

Contractual indemnity claim by Lynsha against De Luca

[63] De Luca entered into a contract in writing with Lynsha for the hire of the bobcat on 5 December 2005. The terms were in the form of standard printed terms on the reverse side of a tax invoice document. De Luca and Lynsha agree that it was this contract, rather than a contract on identical terms for the hire of the same bobcat on 6 December 2005, that governs the issue of the contractual indemnity claimed by Lynsha. The contract described De Luca as "the Hirer" and Lynsha as "the Contractor". The terms of the contract contemplated that the Contractor might supply a "Driver or Operator" in addition to the plant. Clause 5 provided:**

5. When a Driver or Operator is supplied by the Contractor to work the plant he shall be under the control of the Hirer. Such drivers or Operator shall for all purposes in connection with their employment in the working of the plant be regarded as the servants or agents of the Hirer who alone shall be responsible for all claims arising in connection with the operation of the plant by the said Drivers or Operators. The Hirer shall not allow any other person to operate such plant without the contractor's consent to be confirmed in writing." (emphasis added)

Clause 7 of the contract contained the indemnity upon which Lynsha relies in its statement of claim against De Luca. It states:

1. The Hirer shall fully and completely indemnify the Contractor in respect of all claims by any person or party whatsoever for injury to any person or persons and/or property caused by or in connection with or arising out of the use of the plant and in respect of all costs and charges in connection therewith whether arising under statute or common law."

**[64] Lynsha submits that the indemnity in respect of all claims for injury to any person "caused by or in connection with or arising out of the use of the plant and in respect of all costs and charges in connection therewith whether arising under statute or common law" encompasses claims for negligence, including its own negligence. De Luca relies upon Ellington v Heinrich Constructions Pty Ltd[16] in submitting that cl 7 should not be construed so as to oblige it to indemnify Lynsha against the consequence of Lynsha's own negligence. However, the clause considered in Ellington was in materially different terms, and the form and punctuation of the clause determined the Court's decision.

[65] De Luca originally pleaded that other clauses in the contract, namely cls. 8, 9, 10 and 11, were inconsistent with the construction contended for by Lynsha. However, this contention was not pressed in final submissions. Instead, by its amended reply it contends that cl 7 does not require it to indemnify Lynsha. It pleads that the plaintiff's claim:**

(b) was not in connection with the use of the plant;

Moreover, the claim by the plaintiff arose in circumstances in which the plant was not being used, either by the hirer, the contractor, their servants and/or agents."

**It submits that the bobcat had not been used for at least 14 hours, was unoccupied and was rendered useless by reason of its breakdown, and that, in the circumstances, it could not be concluded that the plaintiff's injury was caused by, was in connection with or arose out of "the use" of the bobcat.

Principles of construction of such an indemnity clause

[66] Such an indemnity clause falls to be construed strictly, and any doubt as to the construction should be resolved in favour of the indemnifier.[17] The doubt may arise not only from the uncertain meaning of a particular expression but from its apparent width of possible application.[18]

[67] The authorities that require ambiguity to be resolved in favour of the indemnifier do not require that ambiguity be detected where the natural and ordinary meaning of the language, taken in its contractual context, requires no such conclusion.[19] Absent statutory authority, a court has no mandate to rewrite a provision to avoid what it retrospectively perceives as commercial unfairness or lack of balance.[20]

[68] The clause should be construed in its contractual context which allocates risks of different kinds between the parties, and, relevantly in this case, provides that the operator shall be under the control of the Hirer. Effect should be given to the ordinary meaning of the language used (absent use of technical expressions or terms of art) so as to provide certainty as to where responsibility may lie, against which insurance may be obtained.[21] The fact that the contract requires a party to take out insurance against the indemnified liability may be taken into account in concluding that the indemnity applies to that liability, whether or not insurance is in fact taken out.[22] The absence of a provision for insurance against the liability may also be taken into account.[23] However, the fact that the indemnifier is not required by the contract to take out insurance, and chooses not to take out insurance should not affect the construction of an indemnity that unambiguously allocates responsibility for the liability against the indemnifier.

[69] The outcomes of other cases involving different contractual arrangements and different clauses do not dictate the outcome of this case. However, the principles of construction established in those cases should be followed.[24]

[70] One line of authority construes contracts of the present kind on the assumption that it is inherently improbable that a party would contract to absolve the other party against claims based on the other party's own negligence.[25] The competing view is that at least a principal purpose for obtaining such an indemnity is to protect a party against liability for its own fault.[26]

[71] The interpretation of phrases such as "arising out of" and "in connection with" in different contexts, including compulsory third party insurance, does not determine its meaning in the present context. However, guidance can be derived from authorities in which such phrases are used in comparable cases involving indemnity clauses.

[72] The words "arising out of" are wide. The relevant relationship should not be remote, but one of substance albeit less than required by words such as "caused by" or "as a result of".[27] The phrase connotes a weak causal relationship.[28] However, more is required than the mere existence of connecting links.[29] The words require the existence of a causal or consequential relationship between, in this case, the use of the plant and the injury.[30]

[73] The expression "in connection with" is capable of having a wide meaning, but its meaning must be derived from the context in which it is used.[31] The words "in connection with" have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another. The question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the contract.[32] In the present context there must be a sufficient nexus between the use of the plant and the injury.

[74] The apparent breadth of cl 7 in extending the indemnity to claims for personal injury "caused by or in connection with or arising out of the use of the plant", including claims in respect of Lynsha's own negligence, arises from the ordinary language of the clause. The commercial and contractual context in which cl 7 applies does not make it improbable that Lynsha would seek to be indemnified against claims for damages caused by its own negligence. The plant was under the control of De Luca. Lynsha might be found liable to a third party by reason of the negligence of its employee, as occurred in this case. However, as between Lynsha and De Luca, the employee was under the control of De Luca. In circumstances in which Lynsha ceded control over the operator and De Luca assumed that control, the clause should be construed according to its ordinary meaning to extend to claims for liability for personal injury in circumstances in which Lynsha is vicariously liable for the negligence of its employee.

[75] An issue between the parties is whether the plaintiff's personal injury was caused by or in connection with or arising out of "the use" of the plant. Dictionary definitions of the word "use" include the following:**

1. a. The act of employing a thing for any (esp. a profitable) purpose; the fact, state or condition of being so employed, utilization or employment for or with some aim or purpose, application or conversion to some (esp. good or useful) end.

1. to employ for some purpose; put into service; turn to account

2. to avail oneself of; apply to one's own purposes

1. the act of employing or using, or putting into service

**[76] In its context in the contract, the word "use" should not be interpreted as being restricted to the "operation" of the plant. The word "operation" is used in cl 5 and if the indemnity was intended to apply to the operation of the plant, as distinct from its use, then the word "operation" presumably would have been used in cl 7. The word "use" is not confined to circumstances in which the plant is being "driven or operated" (terms used in cl 13). It is wide enough to include circumstances in which the plant is being employed or utilised for some purpose or end.

[77] The meaning of "use" in the context of cl 7 is not determined by its meaning in the context of compulsory third party insurance where different principles of interpretation apply. The parties referred, however, to Dickinson v Motor Vehicle Insurance Trust[33] in which a father left his two children in a parked car as he went shopping. One child started a fire. The other child sued her father for damages and the Motor Vehicle Insurance Trust for a declaration that it was liable to pay the amount of any judgment against the father. The High Court held that the injuries had arisen out of the use of the vehicle within the meaning of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The occupation of the vehicle by the plaintiff and her brother as passengers whilst the car was stationary and their father was absent was held to be a use of the vehicle within the meaning of the Act. The vehicle was in use to carry the plaintiff and her brother as passengers in the course of a journey which was interrupted to enable the father to do some shopping. There was no suggestion that the interruption was other than temporary. The word "use" for the purposes of the Act extends to everything that fairly fell within the conception of the use of a motor vehicle and may include a use which does not involve locomotion.[34]

[78] I conclude that the plaintiff's personal injury was in connection with or arising out of the use of the bobcat. The bobcat was in use at the relevant time. The breakdown had been repaired. The operator, who was under De Luca's control, repaired it and left it in its location, rather than move it. Although cl 7 should be strictly construed and any ambiguity resolved in favour of De Luca, the word "use" is not ambiguous and in its contractual context could not be construed to mean that the plant was being driven or operated. At the time of the accident the plant was in use, being in an operational condition and having been parked with a view to being deployed on tasks at the direction of De Luca. The deployment of the plant at that location involved its use for the purpose of the hire.

[79] There was a sufficient nexus between the plaintiff's personal injury and the use of the plant to conclude that his personal injury was in connection with or arose out of the use of the plant.

[80] Lynsha is entitled to an indemnity against the plaintiff's claim, and in respect of any costs that it may be adjudged to pay to the plaintiff and its own costs in defending his claim. I will hear the second and third defendants concerning the form of judgment to be given in favour of Lynsha against De Luca.**

The nature and extent of the plaintiff's injuries

**[81] The medical and other evidence supports the conclusion that the plaintiff suffered a soft tissue injury to his left shoulder. He also claims to have suffered a psychological injury in the form of "an adjustment disorder with depressed mood and anxiety" based on the diagnosis of a psychiatrist, Dr De Leacy, who interviewed him on 27 February 2007 for the purpose of a medico-legal report. The first defendant admitted that the plaintiff sustained an injury to his left shoulder and psychological injury as a result of the accident but denied the extent of the plaintiff's loss and damage. It pleaded that the injury to the plaintiff's left shoulder was a minor injury causing minimal if any impairment and no continuing loss, and that his psychological injury resulted in minimal if any impairment and has not resulted in any consequential loss. The second defendant admits that as the result of striking his left shoulder on the bobcat bucket the plaintiff sustained personal injuries but does not admit the nature and extent of those injuries. The third defendant does not admit that the plaintiff sustained personal injuries to his left shoulder and psychological injury.

[82] The plaintiff relies on a number of medico-legal reports. However, I am not prepared to accept, without qualification, the opinions expressed in them because they are based at least partly, if not substantially, on the history given by the plaintiff who I find to be an unreliable historian who admitted to providing misleading information to some of the doctors who were asked to assess him. The medico-legal reports and opinions of orthopaedic surgeons and neurosurgeons who examined the plaintiff were also partly based upon the plaintiff's reporting of the extent of his pain upon examination, and I find that the plaintiff was prone to exaggerate the extent of his pain and the degree to which his shoulder injury restricted his movement and activities.

[83] A remarkable feature of the case is the abundance of medico-legal reports obtained to advance the plaintiff's legal claim compared to the relative absence of evidence of medical treatment for his allegedly debilitating conditions.

[84] The plaintiff saw a general practitioner on 6 December 2005 in relation to his injury. The plaintiff declined analgesia and was seen a week later. On examination he was found to be tender over the AC joint. He was seen again by a general practitioner on 20 December 2005. His left shoulder had a normal range of movement but was still "somewhat painful" and tender over his AC joint. The diagnosis was of a resolving left shoulder injury. He was seen again on 9 January 2006 and obtained a certificate for a soft tissue injury to his left shoulder. He was certified as fit to return to work, and did so on 11 January 2006.

[85] Remarkably, he did not seek or obtain treatment of any kind for his shoulder injury between 9 January 2006 and 12 April 2007. On 12 April 2007 he obtained from a general practitioner a WorkCover certificate after he told his general practitioner that he wanted "to go back on WorkCover for a claim for depression".

[86] Although the plaintiff did not seek treatment of any kind for his left shoulder between January 2006 and April 2007 he saw solicitors about his injury on

5 January 2006 and was examined by medical practitioners for medico-legal purposes. So far as his psychological condition is concerned, the general practitioner who saw him on 12 April 2007 noted that there was no record of depression in the clinic's past notes. The plaintiff had visited his general practitioner on several occasions between January 2006 and 12 April 2007 for unrelated issues and there is no recorded reference of any problem to his left shoulder or of depression. In short, rather than the plaintiff being diagnosed with depression by a treating doctor following which he was referred by his lawyers to a specialist for the purpose of a medico-legal assessment, the plaintiff underwent a medico-legal assessment by Dr De Leacy on 27 February 2007 following which he went to his general practitioner seeking a WorkCover certificate for depression.

[87] The plaintiff was subsequently referred to Dr John Keim and he makes a claim for out of pocket expenses for having seen Dr Keim on seven occasions. Dr Keim was not called as a witness. The plaintiff confirmed that Dr Keim was of the view that the plaintiff "tended to over-talk in order to push his case". I infer that Dr Keim was not called by the plaintiff because his report and opinions would not have assisted the plaintiff's case. Dr De Leacy's recollection of his interview with the plaintiff on 27 February 2007 was that the plaintiff was "preoccupied with his concerns and worries that he had, and this affected his capacity to give a coherent history". He described the plaintiff as a "poor historian in that he wasn't replete with details", he was "a little bit shy on details" and not able to "spontaneously give a lot of information". Dr De Leacy formed the view that the plaintiff was not "one to embellish his symptoms" but was "a little bit on the vague side." In his

medico-legal report Dr De Leacy stated that the plaintiff appeared to be expressing his symptomology without exaggeration.

[88] One cannot be critical of Dr De Leacy who expressed an opinion about the reliability of the plaintiff on the basis of a single interview. However, with the advantage of evidence concerning the plaintiff's capacity to embellish his symptoms and to mislead doctors, I find that Dr De Leacy's assumption that the plaintiff was not one who embellished or exaggerated his symptoms to be unsupported by the evidence. For example, the plaintiff told Dr Coyne that he could not run or do ball work with the team that he coached. At the trial he admitted that this was inaccurate. He told Dr Todman that he could not lift any object with his left arm, and in telling Dr Todman this he was thinking of a coffee cup or a glass full of water. He told

Dr Todman that he had previously been involved with rugby league at a high level but was unable to play touch football. This was untrue.

[89] Covert recording of the plaintiff on 9 April 2007 shows him playing touch football without apparent difficulty, including taking a high ball with his outstretched left arm high above his head. He did not tell Dr Todman that he played a game of competitive rugby league for Wynnum Manly in July 2006. The plaintiff's evidence is that he came off after playing 20 minutes that day. His shoulder was sore when he came off and he was "knocked up because of lack of fitness." However, this does not alter the fact that he was able to play competitive rugby league. He said that he was "predominantly making tackles on my right-hand side" but this suggests that he was still able to make tackles that involved his left shoulder. This is contrary to the impression that he gave Dr Coyne when he said he could not run or do ball work and that he played no sports. The plaintiff accepted that he lied to Dr Todman when he told him that he was unable to play touch football. In the light of this and other evidence, Dr De Leacy's assumption about the reliability of the plaintiff is misplaced.

[90] Dr De Leacy was similarly misled by the plaintiff, or medico-legal reports that recorded the history given by the plaintiff, into believing that the plaintiff's shoulder and neck injuries prevented him from playing football. Although Dr De Leacy did not regard playing for 20 minutes in a game of football in 2006 as a significant level of activity, the relevant point is the unreliability of the history given by the plaintiff to Dr De Leacy and other doctors upon whose notes and reports Dr De Leacy relied. Dr De Leacy's opinion was based upon a finding that the plaintiff was extremely distressed about "his reduced capacity to work and the fact that he had to stop playing football and going surfing. He has difficulty with a number of physical activities around the home and now feels useless." For reasons to be given, the plaintiff has failed to prove that he had difficulty with a number of physical activities around the home. He did in fact play football and his capacity to work was not significantly reduced.

[91] Dr De Leacy's assessment was based upon an assumption that "it is obvious that he cannot work in (the concreting) industry to the same degree of efficiency as previously. This is because of his pain and lack of mobility etc." Dr De Leacy was given to understand that as a result of the accident there was a reduction from normal full time work hours to two to three days a week. He accepted that it would have to be a change of that degree in the plaintiff's working hours for there to be the psychiatric consequences that he diagnosed. The attribution of such a change in working hours was an important factor in Dr De Leacy's opinion. The evidence does not support the conclusion that there was a reduction in the plaintiff's working hours of such an extent.

[92] Dr De Leacy accepted that his diagnosis of an adjustment disorder was one that by definition depends upon the continuance of the underlying stressor. He stated that if the injury resolved then the adjustment disorder would resolve too. Accordingly, the extent and duration of the plaintiff's adjustment disorder depends upon an assessment of the nature, extent and duration of his shoulder injury.

[93] The plaintiff was examined by Dr Gillett, an orthopaedic surgeon, for the purpose of a medico-legal report on 26 September 2006. The plaintiff complained of pain in his neck, however, Dr Gillett found that he had a range of motion of his cervical spine which was within normal range with no asymmetry, guarding or spasm.

Dr Gillett found no evidence that the plaintiff was suffering from a neck injury. On the basis of the history given to him and an examination of the plaintiff Dr Gillett concluded that the plaintiff had "persistent symptomology in the region of his left shoulder girdle, arm and neck" from 6 December 2005 to the date of his examination. Dr Gillett remarked that the plaintiff had received "no particular treatment" and that "an accurate diagnosis has not been made." Dr Gillett was not able to make an assessment of the plaintiff's impairment because the plaintiff could not be regarded "as having reached maximum medical improvement as he has not had appropriate treatment or investigation." Dr Gillett recommended the plaintiff undergo further assessment, treatment and rehabilitation and that the plaintiff "would benefit by assessment by a treating Orthopaedic Surgeon." The plaintiff did not seek such treatment from his general practitioner, a treating orthopaedic surgeon, the outpatients section of a hospital or a physiotherapist.

[94] The plaintiff has given no satisfactory explanation for his failure to seek treatment for his left shoulder between 9 January 2006 and 12 April 2007. It is understandable that on some occasions when he visited his general practitioner on unrelated issues he did not refer to his left shoulder problem. However, he saw his general practitioner on 17 July 2006 which was a few weeks after playing in a rugby league game for Wynnum Manly in which he came off the field with a sore left shoulder. The plaintiff says that he was intent on making a return to playing rugby league. Significantly, he did not mention any difficulty in relation to his left shoulder when seeing his general practitioner on 17 July 2006 or at any other time during 2006.

[95] On 4 April 2007 the plaintiff attended the Redlands Hospital complaining of exacerbation of low back pain which interfered with his life and his job. He did not make any reference to a problem with his left shoulder. He did not seek or obtain any physiotherapy treatment for his left shoulder even though he was able to access it at his local hospital. When he did seek treatment from his general practitioner on 12 April 2007 his complaints included neck pain and an MRI showed a disc injury to his cervical spine. He was prescribed Nurofen and other treatment for his neck pain and was referred to a psychiatrist for his psychological problems, but did not seek or obtain a referral for any treatment for his left shoulder injury.

[96] The plaintiff does not plead that the accident on 6 December 2005 caused him to suffer a neck injury. As previously noted, Dr Gillett found no evidence that the plaintiff was suffering from a neck injury when he saw him on 26 September 2006. Dr Fraser, an orthopaedic surgeon, who examined the plaintiff on 31 May 2007, found no evidence of an injury to the plaintiff's cervical spine. Dr Coyne, whilst not excluding the possibility of a mild cervical soft tissue strain arising from the accident thought it unlikely that the plaintiff had a cervical spine injury of any significance and did not consider that he had sustained any permanent impairment as a result of a cervical spine injury sustained on 6 December 2005.

[97] By contrast, Dr Wallace, who examined the plaintiff on 13 February 2008, concluded that the plaintiff had an impairment of his cervical spine as a result of the injury which resulted in a "5% whole person impairment". His assessment in this regard was based, in part, on an assessment of the plaintiff's range of movement. He acknowledged that the disc bulge at C3/4 with no nerve root compression shown on an MRI scan might be asymptomatic. Dr Todman also assessed the plaintiff as having suffered a cervical spine injury based upon the plaintiff's restricted cervical spine movements, tenderness and spasm in his cervical muscles. Based upon the clinical history given to him and his examination findings, Dr Todman was of the opinion that the plaintiff had a chronic musculo-ligamentus strain to the cervical spine which represented an eight per cent whole person impairment. Again, the opinion of Dr Todman in relation to his assessment of the plaintiff's cervical spine, like his assessment of the plaintiff's shoulder injury, was dependent to a significant extent upon the accuracy of the plaintiff's clinical history and the reliability of the plaintiff's examination in respect of his range of movement and reported tenderness. The plaintiff did not provide a reliable history to Dr Todman. As previously noted, the plaintiff told Dr Todman that he was unable to play touch football and did only a limited amount of coaching. This was acknowledged by the plaintiff to be a lie. He told Dr Todman that he was unable to work more than two days per week. This also was untrue.

[98] One possibility is that the plaintiff did not have a cervical spine injury. Dr Gillett, Dr Fraser and Dr Coyne could not find evidence of a cervical spine injury. If, however, the plaintiff has a significant cervical spine injury of the kind reported by Dr Wallace and Dr Todman then its consequences in terms of pain, associated psychological illness and impairment of work and recreation activity are not recoverable in these proceedings since the plaintiff does not claim that the accident caused an injury to his cervical spine.

[99] As to the plaintiff's shoulder injury, Dr Todman concluded that the plaintiff's reported continuing symptoms of pain around the left shoulder girdle, left side of the neck and left upper limb could be directly attributed to the accident.

Dr Todman's opinion and any assessment made by him of impairment in respect of the left shoulder injury are heavily dependent upon the accuracy and reliability of the plaintiff's history and the pain which the plaintiff reported. In circumstances in which the plaintiff is an unreliable historian and prone to exaggerate his pain, I am not prepared to accept Dr Todman's assessment of the extent of the plaintiff's impairment. The plaintiff's ability to return to work and his work history prior to sustaining a back injury on 26 June 2009 do not support the conclusion that the plaintiff suffered a significant, let alone permanent, impairment as a result of his left shoulder injury.

[100] An occupational therapist, Mr Ng, assessed the plaintiff. His assessment was heavily dependent upon the reliability of the histories given to medical specialists and the reliability of the plaintiff's history. It also was dependent upon the plaintiff properly undertaking the tests which Mr Ng administered and some doubt attends these.

[101] Mr Ng recorded the following measurements in respect of the plaintiff's left shoulder when he assessed him on 15 September 2007:**

[102] Mr Ng's oral evidence did not suggest that the plaintiff's reduced flexion or abduction should have significantly restricted his work or other activities. The plaintiff attended for a further assessment on 23 February 2010 and Mr Ng reported the following restrictions on movement in his left shoulder:

**The plaintiff described to Dr Ng tenderness at the end range of movement and being tender over the anterior and posterior shoulder regions.

[103] Differences in reports by the plaintiff of pain, tenderness and the location of these symptoms are understandable. They may vary over time between examinations by the same doctor or occupational therapist. A person may have good days and bad days. However, the location of the soft tissue injury to the plaintiff's left shoulder is difficult to define. For example, Dr Wallace found the plaintiff upon examination to be tender over the left AC joint. By contrast, Dr Gillet did not find tenderness over the left AC joint and the reported tenderness he elicited was lower than that.

[104] Having regard to the medical evidence concerning the plaintiff's left shoulder injury, and the need to discount medical opinions that were based upon an unreliable or inaccurate history given by the plaintiff, I conclude that the plaintiff suffered a relatively minor soft tissue injury to his left shoulder. The injury was most painful in the weeks and first few months after it was sustained on 5 December 2006. It prevented the plaintiff from returning to work until 11 January 2006.

The effect of the plaintiff's shoulder injury on his work performance

[105] Although the plaintiff received a medical certificate on 9 January 2006 stating that he was fit to return to work without restriction, his evidence is that when he went back to work "a couple of weeks" after the injury he performed light duties. He says that he remained on only light duties for the remainder of his time with Tessman, which he estimated to be about three or four months. I do not accept his evidence in this regard. He remained employed with Tessman until 4 October 2006, and I accept the evidence of Mr Heilbronn that he did not notice any downturn in the plaintiff's work performance after he returned to work in January 2006 compared to the period prior to 6 December 2005. Mr Heilbronn had the opportunity to work with the plaintiff on many occasions after January 2006. The plaintiff did not complain of any pain or disability or restriction in movement after his return. Mr Heilbronn's evidence was that if a concreter was carrying a shoulder injury it would be noticeable because the shoulder is one of the major parts of the body that a concreter uses. I accept his evidence.

[106] The plaintiff may have been placed on light duties in the period immediately after his return to work on 11 January 2006. However, I do not accept his evidence that he remained on light duties until he resigned. It is inconsistent with the observations of Mr Heilbronn. The plaintiff submits that the fact that he showed no restriction of movement, pain or disability when observed by Mr Heilbronn on many occasions after the accident is not evidence that he had no pain or disability. It is merely evidence that Mr Heilbronn did not see it. I accept the submission that a plaintiff who is in pain may conceal it from a supervisor or an employer out of concern for the security of their employment. However, the plaintiff's evidence does not support the conclusion that any pain or disability that he experienced would not be observable to persons who worked with him. He accepted that it would be "pretty obvious" to a fellow-worker if he was experiencing pain in his shoulder from labouring. For example, he would wince. The plaintiff accepted that anybody watching him in the period of time that he remained employed with Tessman or later when employed by Shamrock Civil Engineering Pty Ltd

(10 October 2006 to 3 November 2006) would not have realised that he was carrying any sort of injury at all. The plaintiff accepted this was because he worked without any restrictions whatsoever.

[107] The extent to which the plaintiff's work records in 2006 demonstrate a diminution in hours or a reduction in income was the subject of contention at trial.

[108] The plaintiff's evidence was that he noticed that his hours were being cut back from an average of about 38-40 hours to 24-25 and sometimes just one day per week. He says he noticed that other employees who were less experienced than him were receiving more hours. He says that he spoke to his supervisor, Mr Liam Roberts, about what was going on and that Mr Roberts said "If you were fully fit, mate, I'd have hours for you, but you know, we can't give you anything until those light sort of things come up". The plaintiff says that he responded "Well, mate, it's probably best if I leave, can you sign me a work release so I can collect my ... entitlements?" The plaintiff then resigned and a short time later obtained employment as a concreter with Shamrock Civil Engineering Pty Ltd.

[109] Mr Roberts was not called as a witness by any of the defendants to contradict the plaintiff's account of his conversation with the plaintiff. The plaintiff's evidence in this regard is unchallenged, and the unexplained failure to call Mr Roberts as a witness supports the conclusion that the evidence of Mr Roberts could not advance the defendants' case in this regard. Despite my general reluctance to accept the plaintiff's evidence in relation to contested matters, because of his general unreliability as a witness and the adverse view that I take of his credibility, I accept that Mr Roberts probably said words to the general effect of the words which the plaintiff attributes to him. This does not, however, prove that the plaintiff was only being assigned light duties or that any reduction in his hours was because

Mr Roberts thought that he was not fully fit due to his shoulder injury. The evidence does not justify the conclusion that there was any, let alone a drastic reduction in hours due to the plaintiff's shoulder injury. Work as a casual concreter is dependent upon many factors, including the number of jobs that are available to an employer at any one time and the workforce that is available to that employer.

[110] The evidence does not suggest that the plaintiff was a highly-valued employee at the time he worked for Tessman. Mr Heilbronn said that the plaintiff's attendance was "solid" but the actual strength of his work, or quality of his work, was poor.

Mr Heilbronn had to chastise him in order to get a stronger performance. The plaintiff may have had a high opinion of the quality of his own work, but there is no evidence that this opinion was shared by his employer. Mr Roberts may have been willing to assign more work to less experienced, younger concreters because of his view of the quality of their work and their industry, and he may have chosen not to tell the plaintiff of his true reasons for this.

[111] The plaintiff worked as a concreter with Shamrock for only a few weeks. In that period he earned $4,303 or an average of $1,266 per week net (including allowances). That involved work as a pit builder and, according to the plaintiff, it did not require much heavy work. He said that he did not cope well with the work, was unable to use a wide-faced chisel, lacked strength in his left arm and experienced pain in his shoulder, arm, neck and at the base of his skull. He said that he found ways of avoiding heavier work. He accepted that he was able to lift himself up with his shoulders from trenches and pits, but he did not mention to anybody that he had any pain. The plaintiff accepted that anybody watching him in the time that he worked at Shamrock would not have realised that he was carrying any sort of injury at all. Contrary to his evidence in chief, under cross-examination the plaintiff accepted that he worked at Shamrock without any restrictions whatsoever.

[112] After leaving Shamrock the plaintiff worked for himself as a subcontractor undertaking small concreting jobs such as tank slabs. The plaintiff said that during this period of time his symptoms were not improving and he found himself becoming more depressed. He became dependent on pain killers and alcohol.

[113] Despite my general reservations about the reliability of the plaintiff's evidence, and his concession under cross-examination that no-one at Tessman or Shamrock would have noticed that he was carrying any sort of injury, I accept that the plaintiff continued to experience pain in his shoulder during the time that he worked at Tessman and Shamrock in 2006 and in early 2007 when he worked as a self-employed subcontractor. I accept his evidence that heavy work as a concreter in 2006-2007 gave him pain in his shoulder and that the pain extended into his arm and neck. I accept that after heavy work that caused him these kinds of pain the plaintiff would take pain-killers. I also accept that the pain that he experienced particularly in the period 2006-2007 had an effect on his mental state. However, I conclude that the plaintiff was prone to exaggerate the extent of his pain and disability when examined for medico-legal purposes. In addition, the fact that he did not seek or obtain treatment between 9 January 2006 and 12 April 2007 in respect of his left shoulder supports the conclusion that he suffered a relatively minor left shoulder injury.

[114] By April 2007 he was experiencing low back pain which he reported interfered with his life and job. That pain was sufficiently serious for him to attend the Redlands Hospital. The neck pain that he reported to his general practitioner on

12 April 2007 may have been referrable to his shoulder injury or it may have been unrelated and caused by a disc injury to his cervical spine. The covert recording of the plaintiff playing touch football on 9 April 2007 does not suggest that the plaintiff was experiencing difficulties with his shoulder or neck. None of the medical witnesses who saw the DVD before giving evidence suggested that it showed the plaintiff having any disability in his left shoulder, although Dr Todman described the recording as "subjective".

[115] The recording shows the plaintiff bending and picking up a ball with his left hand on several occasions, controlling a high ball with his outstretched left arm high above his head and passing with both hands. It undermines his account of his disability at around that time. He told Dr Gillett six months earlier that he could not bend down too far because it caused problems with his left arm. He said he could not stretch out with his left arm. He said that he had difficulty in raising his arm. He told Dr Gillett that he was not involved in any sport, and failed to mention that he played a game of rugby league only a few months earlier. On 15 January 2007 he told Dr Todman that he had pain when lifting "any objects with the left arm", that he was unable to do the mowing or any physical tasks around the home. He said that he was unable to play touch football. A month after being recorded playing touch football he told Dr Fraser that he played no sports. Two months after the game of touch football that was covertly recorded the plaintiff told Dr Coyne that he could not run or do ball work with the team he coached.

[116] The plaintiff's exaggeration of his symptoms for medico-legal purposes and his preparedness to mislead those doctors about the extent of his disability discredits him. It does not mean, however, that he was able to undertake the heavy work involved in concreting without experiencing pain in his shoulder. The plaintiff was prepared to embellish his symptoms when being assessed for medico-legal purposes. I accept, however, that working as a concreter in 2006 and early 2007 caused him to experience pain as a result of the injury that he sustained to his left shoulder in December 2005. It also caused him to experience lower back pain and neck pain. Despite my general reservations about the plaintiff's reliability and his preparedness to exaggerate his symptoms, I find that the pain that he experienced from his left shoulder, back and neck were a source of depression. I do not find that the shoulder pain that he experienced after heavy work as a concreter gave rise to acute depression that disabled the plaintiff from working. The circumstances under which the plaintiff sought a WorkCover certificate for depression on 12 April 2007 are uncertain because of the unreliability of the plaintiff's evidence and the absence of evidence from his partner, who might have been expected to give evidence on his behalf concerning the state of his depression and its apparent causes.

[117] The fact that the plaintiff's general practitioners and others were prepared to issue WorkCover certificates for depression commencing in April 2007 and the fact that the plaintiff received WorkCover benefits of $21,755 between 10 May 2007 and

23 November 2007 on the basis that his condition was due to the effects of the injury sustained on 6 December 2005 do not mean that the plaintiff was incapable of working as a concreter during this period because of the physical or psychological injuries that he sustained as a result of the shoulder injury that occurred on

6 December 2005. The pain that depressed him and led to him seeking WorkCover benefits between May and November 2007 may have been primarily due to the back injuries about which he sought treatment from the Redlands Hospital in April 2007 and neck pain caused by a disc bulge that became symptomatic at that time. Much of the pain that depressed him may have been causally unrelated to his left shoulder injury.

[118] The plaintiff resumed performing subcontracting work on 8 January 2008 and continued to do so until 26 June 2009, when he sustained a back injury whilst working as a concreter. That injury has prevented him from working since 26 June 2009. The plaintiff acknowledged that by the time he was taken off WorkCover in late 2007 and as a result of host employment work arranged by WorkCover at the Wynnum Manly Seagulls Football Club his mental state had improved.

[119] The injury that occurred on 26 June 2009 to the plaintiff's back occurred when he was attempting to lift a heavy machine with another worker and lower it to a builder's labourer. According to the plaintiff, the builder's labourer pulled the machine down, his fellow worker, John Miller, lost his grip on it, the plaintiff took all the weight and, as a result, twisted his back. The plaintiff's evidence was that his earlier shoulder injury did not contribute to the accident that occurred on 26 June 2009. I find that the back injury which the plaintiff sustained on 26 June 2009, and not the shoulder injury that he sustained on 6 December 2005 and its aftermath, have prevented him from working since 26 June 2009. I find that if he had not suffered the back injury that occurred on 26 June 2009 he probably would have been capable of working as a concreter or in other employment as a labourer as he had prior to 26 June 2009. I find that the shoulder injury that he sustained on

6 December 2005 had resolved itself by 26 June 2009. It is likely that on occasions prior to 26 June 2009 heavy work may have caused the plaintiff to have a dull pain in his left shoulder, but this pain did not prevent him from working as a concreter after January 2008 and would not have prevented him from doing so had he not sustained a back injury on 26 June 2009.

[120] I find that the pain that the plaintiff experienced in his shoulder in 2006 and 2007 caused him to experience some adjustment disorder and depression. However, the extent of his disability was exaggerated by the plaintiff in his reporting to

Dr De Leacy and in his evidence. There is no satisfactory evidence that the injury to the plaintiff's left shoulder ended his days as a rugby league player. The plaintiff's evidence that he had a sore shoulder after playing in a game on

1 July 2006 does not prove this. He did not seek or receive treatment for his shoulder at the time. He did not call as a witness his football coach or any player about the extent, if any, which the plaintiff's left shoulder injury diminished his ability as a player. The plaintiff's evidence about his football career like much of his evidence, was unreliable. He initially said that he lost interest in playing rugby league in 2004 because of "political stuff" at the Wynnum Manly club and would not play for any other club because of his loyalty to that club. But he later acknowledged playing for the Ipswich Jets in 2004 and Redlands in 2005.

[121] By December 2005 the plaintiff was aged 28. Under cross-examination he asserted that prior to the accident he still held out hope of becoming a professional rugby league player despite not having played A grade rugby league. The plaintiff's high opinion of his potential to become a professional football player and Dr De Leacy's diagnosis of certain narcissistic personality traits, may explain why the plaintiff was depressed about his inability to continue to play competitive rugby league. However, any depression that the plaintiff experienced because he could not play rugby league after the age of 28 in Wynnum Manly's second grade team, or realise his ambition of playing professional rugby league, cannot be reasonably attributed to his workplace injury on 6 December 2005. In the absence of reliable evidence that the plaintiff's shoulder problems brought his rugby league career to an end, the end of his career is just as likely to be due to his age and deteriorating fitness or other conditions unrelated to the 6 December 2005 incident.

[122] The plaintiff did not call his partner as a witness to support his evidence about the extent to which his shoulder injury affected his ability to undertake domestic tasks or contributed to his depression. If the plaintiff was clinically depressed to any significant extent the plaintiff has not proven that his shoulder injury caused it. In the light of my reservations about the reliability of the plaintiff's evidence, his credibility and his unexplained failure to call his partner to confirm the existence and extent of his claimed physical and psychological disabilities, I conclude that the adjustment disorder with depressed mood and anxiety that he experienced as a result of his shoulder injury was relatively mild and was exaggerated both in his account of his symptoms to Dr De Leacy and in his evidence. In any event, the resolution of the soft tissue injury to the plaintiff's shoulder, effectively ended any adjustment disorder. This conclusion flows from Dr De Leacy's evidence about the duration of such a disorder.

[123] I conclude that the plaintiff has not proven depression to the extent that he reported to his doctor in April 2007 was caused by the physical injury to his shoulder.

[124] I find that despite its limited impact upon the plaintiff's income and his capacity to work as a concreter, the injury to his left shoulder was painful. I accept Dr Fraser's evidence that the shoulder injury has resulted in no "impairment". However, this does not deny the fact that it was painful, particularly in the weeks and months that followed the accident. The plaintiff was unable to work at all for some weeks and then for some time afterwards he only undertook light duties, despite being given an unrestricted certificate that enabled him to return to work. I do not accept, however, that the plaintiff's pain was as great or as protracted as his evidence suggested. I recognise that persons at work may not report their pain for fear of consequences to their employment or simply because they are stoic. However, the plaintiff did not suggest that he did not report experiencing pain for these reasons. On the contrary, his evidence was that he complained to fellow employees that he was suffering pain.

[125] Despite the pain that the plaintiff experienced on occasions when working for Tessman and later with Shamrock, his evidence was no-one would have observed that he was carrying any sort of injury. He acknowledged under cross-examination that he worked without any restrictions whatsoever. He did not seek treatment from a general practitioner or anyone else for his shoulder injury between January 2006 and April 2007. He was able to coach rugby league and play touch football. His left shoulder injury was not so severe as to prevent him from playing in a game of club rugby league in July 2006. The evidence supports the conclusion that he suffered a relatively minor soft tissue injury to his left shoulder and that its symptoms were largely resolved within two years of the accident.

[126] The plaintiff is entitled to an award of general damages on account of the pain that he experienced to his left shoulder, the restrictions this placed upon his recreational activities and the mild adjustment disorder that he experienced whilst his soft tissue injury to the left shoulder continued. The soft tissue injury to his left shoulder had largely resolved itself by early 2007 as evidenced by his participation in recreational touch football and his capacity to undertake work as a concreter after January 2006. I accept that heavy concreting work caused pain in his left shoulder, arm and neck. However, there is no satisfactory evidence that this pain was so severe as to prevent him from working after January 2006.

[127] In the circumstances, I award general damages of $20,000.

[128] The general damages that I have awarded are for past general damages. Interest on the award of general damages should be at the rate of two per cent per annum calculated over the period of 4.5 years since 6 December 2005. This produces an amount of $1,800.

[129] The plaintiff attempted to return to work for one day prior to Christmas 2005, but aggravated his shoulder. He then was unable to work until 11 January 2006 because of his injury. As a casual employee he would not have been paid between

23 December 2005 and 10 January 2006 in any event, and received no pay for this period. However, Tessman paid him for the two weeks that he was unable to work prior to Christmas 2005. His income immediately before and after the accident may be tabulated as follows:**

* The plaintiff submits that the first defendant has been refunded these amounts by WorkCover under the workers' compensation legislation and the plaintiff is liable to refund WorkCover.

**[130] The plaintiff returned to work on 11 January 2006. I have had regard to his earnings prior to the accident, as summarised in paragraphs 68 and 69 of the plaintiff's submissions. I have also had regard to his hours of work and earnings with Tessman in the several months after the accident. The evidence does not suggest that the plaintiff's average wages or hours of work were reduced during the initial period when he was assigned light duties. The plaintiff's evidence is that he worked without restrictions with Tessman. Reference to his payslips from Tessman, as summarised in Attachment 1 to the plaintiff's submissions, show that in 2006, as in 2005, his hours varied from week to week. In 2006 he continued to often work a 40 hour week. He agreed under cross-examination and by reference to his tax returns from 2005 and 2006 that in the year ended 30 June 2006 he earned $11,000 more than in the previous year, and that prior to 30 June 2006 he was getting more work as a casual employee than ever before. His pay records and other reliable evidence do not support a finding that his left shoulder injury caused him to suffer economic loss during the period that he continued to work for Tessman after returning to work on 11 January 2006. I decline to make such a finding.

[131] After leaving his employment with Tessman on 10 October 2006 the plaintiff quickly gained employment with Shamrock Civil Engineering, albeit for a relatively short period. There is no proper basis for a claim for past economic loss during this period. He earned on average $1,266 per week net (including allowances).

[132] The plaintiff then pursued other work. He initially worked in a self-employed capacity and Attachment 2 to the plaintiff's submissions helpfully summarises the contents of invoices issued by him for work pouring slabs and the like. This summary indicates that there were many days during this period that the plaintiff did not work and that his average weekly earnings were less than his average weekly earnings with Tessman and Shamrock. Assuming that the invoices reflect the full extent of his earnings, the evidence does not satisfy me that the plaintiff suffered economic loss after 4 November 2006 as a result of the shoulder injury he sustained on 6 December 2005. The plaintiff was able to work as an employed concreter in the ten months after he returned to work in January 2006, and I am not persuaded that his choice to not pursue employment after November 2006 and, instead, to pursue self-employment, resulted in an economic loss that is attributable to the December 2005 accident. It is equally consistent with a choice not to work to his fullest capacity, or to problems that he encountered due to neck and back pain.

[133] The plaintiff was in receipt of WorkCover benefits for the period of 28 weeks between 10 May 2007 and 23 November 2007. This was on the basis of medical certificates that he was unable to work due to depression and pain in his neck and shoulder. I am not satisfied that the plaintiff has proven that the injuries he received on 6 December 2005 prevented him from working as a concreter or caused economic loss during the period that he received workers' compensation in 2007.

[134] The plaintiff may have suffered depression during the period that he received workers' compensation benefits in 2007. However, he has not proven that depression to the extent that he reported to doctors, and consequential loss of income, was caused by the left shoulder injury he sustained in December 2005. I find that he was able to work as a concreter without restriction in 2006 and that both the physical and psychological effects of his shoulder injury had largely resolved themselves by late 2006. The pain and depression that he reported to his GP in April 2007 may have been the result of back and neck injuries that were unrelated to his shoulder injury. His depression may have been from other causes, including a loss of self-esteem and disappointment that his life and his football career had not turned out as he had hoped. In any case, given the unreliability of the plaintiff's own evidence and the absence of reliable evidence from other sources, such as the plaintiff's partner, I find that the plaintiff has not proven that any economic loss he suffered during the period he received workers' compensation benefits in 2007 was caused by the December 2005 accident.

[135] After his workers' compensation benefits ceased in late 2007 the plaintiff resumed concreting work and began to gain regular income, as summarised in Attachment 2 in the plaintiff's submissions. The plaintiff has not proven that any reduced income during this period, compared to the average income he earned at Tessman's is attributable to the December 2005 accident. Later in this period he was regularly earning at least $300 per day.

[136] I conclude that the plaintiff has proven an entitlement for economic loss in respect of the few weeks that he was unable to work after the accident. By reference to pay records, Tessman's declaration to WorkCover about his pre-accident earnings and the possibility of overtime in the period between 7 and 23 December 2005, I assess his net loss of earnings as $2,300.

[137] I conclude that the plaintiff is entitled to past economic loss of $2,300.

[138] The plaintiff was paid $2,386 (gross) and $1,738 (net) by his employer for the period he was absent from work between 8 and 22 December 2005, and his employer was refunded this amount by WorkCover. The plaintiff accepts that he is liable to refund it. Given that the plaintiff was not out of pocket, no interest on past economic loss is assessed.

Past loss of employer's contribution to superannuation

[139] At nine per cent this equates to a figure of $207.

[140] I will hear the parties as to whether, in the light of my findings, the plaintiff is obliged to refund the workers' compensation benefits he received in 2007. The first and second defendants' submissions that he was obliged to refund WorkCover may be premised on the assumption that he was entitled to recover economic loss for the period he received workers' compensation benefits in 2007. The third defendant submitted that there was "probably" no obligation to repay the workers' compensation benefits he received in 2007. The matter should be considered by the parties and addressed in further submissions if it is the subject of contention.

[141] The plaintiff is obliged to refund the amount paid by WorkCover for his time away from work in December 2005 and should be awarded a Fox v Wood component of $648 on that amount.

[142] I have found that the soft tissue injury to the plaintiff's left shoulder largely resolved itself within two years of the accident. He was able to return to work as a concreter. By 26 June 2009 the left shoulder injury no longer caused the plaintiff economic loss and did not impair his future earning capacity. No occasion arises to apportion economic loss suffered by the plaintiff after 26 June 2009 in accordance with the principles discussed in Nilon v Bezzina.[35]

[143] Prior to his back injury on 26 June 2009 the plaintiff had been working as a concreter earning $1,500 gross per week, or $1,200 net. No reference to a shoulder injury appears in his notice of claim for damages in relation to his back injury. The plaintiff did not mention his past shoulder injury to Dr Campbell.

[144] I am not persuaded that the injury that the plaintiff sustained to his shoulder on

6 December 2005 and any consequential adjustment disorder that he suffered whilst this soft tissue injury persisted have impaired his future earning capacity. In the circumstances, the plaintiff has not proven an entitlement to an award for impairment of his future earning capacity.

[145] The plaintiff is not entitled to recover the medical and other expenses paid on his behalf by WorkCover of $10,035.83 in 2007 since they were not caused by his shoulder injury. He is entitled to recover medical expenses of $393 incurred in relation to his shoulder injury, and which are subject to a refund.

[146] The plaintiff claims out of pocket expenses for travel and pharmaceuticals totalling $2,163. There is no documentary proof of these items. However, I accept that the plaintiff travelled on seven occasions to consult with Dr Keim and also incurred expenses in relation to pain killers. Some of those pain killers and pharmaceuticals may have been purchased for unrelated neck and back complaints. Whilst the plaintiff's oral evidence did not descend to detail in relation to these purchases, this was because I permitted him to adopt the schedule as a list of his claims in this regard. The plaintiff was not cross-examined about these items but I am inclined to accept that he incurred such out of pocket expenses. I assess one-half of them as being attributable to his shoulder injury. Special damages and interest on out of pocket expenses are assessed at $1,600.

[147] The plaintiff has not proven an entitlement to amounts for future treatment.

[148] Although the plaintiff asserted that he required assistance with domestic duties including mowing that was done by his partner, this claim was not supported by reliable evidence. His partner was not called as a witness when one would expect her to be. The plaintiff's Senior Counsel accepted that a Jones v Dunkel inference arose in relation to the failure of the plaintiff to call her as a witness.

[149] Mr Ng's opinion that the plaintiff requires assistance around the home of two hours per week was based upon the history provided by the plaintiff to Mr Ng and the history that the plaintiff gave to medical specialists in reports upon which Mr Ng relied. This history is unreliable. The plaintiff has not proven that he required assistance around the home. He has failed to prove an entitlement to an award in respect of past care.

Special damages and interest on out of pocket expenses $1,600

**[150] The damages to be awarded against each defendant will reflect my assessment of contributory negligence, and, in the case of the first defendant, the extent of the refund to WorkCover, resulting in a reduction in damages pursuant to s 270 of the Workers Compensation and Rehabilitation Act 2003.

[151] The plaintiff has proven that each defendant was negligent. The orders to be made will include orders in respect of indemnity and contribution between defendants. I direct the parties' legal representatives to consult with each other and submit draft orders, including orders as to costs, within 14 days. If terms of the draft orders are not agreed, I will hear the parties on a date to be fixed with a view to making final orders.**

[1] Unreported, Muir J 30 May 1997; upheld on appeal [1998] QCA 18.

[2] Cf Thompson v Woolworths(Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234.

[3] (2009) 258 ALR 673; [2009] HCA 35.

[4] (2007) 234 CLR 330 at [43].

[5] Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 258 ALR 673 at [20], [48].

[6] Ibid citing Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 47-48 per Brennan J.

[7] DIB Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 210 at [43] - [54].

[8] Wilkinson v BP Australia Pty Ltd [2008] QSC 171 at [28].

[9] Roads and Traffic Authority of New South Wales v Dederer (supra) at 338 per Gummow J.

[10] [1980] HCA 12; (1980) 146 CLR 40 at 47-48.

[11] Roads and Traffic Authority of New South Wales v Dederer (supra) at 338 and 354.

[12] Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; (2008) 72 NSWLR 1 at 30.

[13] Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2000] QCA 18; [2001] 1 Qd R 518; cf Wilkinson v BP Australia Pty Ltd [2008] QSC 171.

[14] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 311 per Mason, Wilson and Dawson JJ.

[15] McLean v Tedman (supra) at 316 citing Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37.

[16] (2005) 13 ANZ Ins Cases 61-646; [2004] QCA 475.

[17] Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [17] - [23].

[18] Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 at 292 [53]; [2009] HCA 44.

[19] Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; (2008) 72 NSWLR 1 at 21 [87].

[23] Ellington v Heinrich Constructions Pty Ltd (supra) at [23].

[24] Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (supra) at [89], [166].

[25] Davis v Commissioner for Main Roads [1968] HCA 10; (1968) 117 CLR 529 at 534 per Kitto J (Windeyer J agreeing); Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213 at [64] - [65].

[26] Davis v Commissioner for Main Roads (supra) at 537 per Menzies J (Barwick CJ and McTiernan J agreeing); Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (supra) per Basten JA.

[27] Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (supra) at [11].

[29] F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; (2005) 63 NSWLR 502 at 515 [90].

[30] Westina Corporation Pty Ltd v BGC Contracting Pty Ltd (supra) at [61].

[31] Fraser v The Irish Restaurant and Bar Co Pty Ltd [2008] QCA 270 at [40].

[32] Ibid at [42] - [43] citing R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 at 279.

[33] [1987] HCA 49; (1987) 163 CLR 500.

[34] Ibid at 505. See also Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 at 442 per Barwick CJ who concluded that the relevant use of the vehicle was not confined to the periods it was in motion, although his Honour did not seek to define "use" in other contexts.

[35] [1988] 2 Qd R 420.