Small v K & R Fabrications

The cases in summary

1. On 23 January 2007 the plaintiff was engaged by the defendant, K and R Fabrications Wollongong Pty Ltd, a steel fabrications company under labour hire through Allmen Industrial Services Pty Ltd ("Allmens"), as a member of a work crew to work the night shift at BlueScope's premises. The defendant was under contract to BlueScope to undertake structural repairs and general maintenance at the steelworks as required by BlueScope from time to time.
2. The plaintiff submitted that I would accept his evidence as to the circumstances in which he sustained his back injury as both credible and reliable, and that his immediate report of injury to the defendant reinforces his credibility.
3. The plaintiff submitted that even were I not persuaded that the injury to his back was probably sustained in the particular and detailed circumstances he described in his evidence, whether due to his mistaken recollection of certain features of the system of work in which he was engaged and/or error in his reconstruction of the particular mechanism within that system of work which caused his injury, I would nonetheless be satisfied that he was injured as a result of a breach of the defendant's duty of care as particularised in the further amended statement of claim. The plaintiff further submitted that I would be satisfied that the particular risk of harm was both foreseeable and not insignificant (as provided for in ss 5B(1)(a) and (b) of the Civil Liability Act 2002 (NSW)) and that there was no legal impediment to his recovery of damages, the quantum of which has been agreed, subject to the issue of contributory negligence.
4. The defendant accepted that it owed the plaintiff a duty of care as a member of a work crew under labour hire, and that the nature of the duty and its scope were analogous to the duty an employer owes an employee, but that in order for its liability in negligence to be determined in accordance with ss 5B, 5C, 5D and 5E of the Civil Liability Act, the Court would first need to be satisfied that the plaintiff's injury was sustained in the circumstances and by the mechanism he described in his evidence (or that it was probably sustained in that way). Without that primary finding of fact the defendant submitted that the risk of harm against which its liability in negligence falls to be assessed under s 5B(1) of the Civil Liability Act cannot be meaningfully addressed.
5. The defendant accepted that the plaintiff did injure his back whilst undertaking work assigned to him as a trades assistant at some time during a 12-hour night shift which commenced at 7pm at the steelworks on 23 January 2007, but that I would reject the plaintiff's evidence as to the circumstances in which the injury was sustained as internally inconsistent, generally improbable and in other respects impossible of acceptance.
6. The defendant further submitted that even were I satisfied that the plaintiff's back injury was sustained as he claims, or if not precisely in accordance with that mechanism, that what he described in his evidence was sufficiently supported by other evidence for it to be the probable cause of the injury, I would not be satisfied that the injury was a consequence of any breach of its duty to provide a safe system of work and/or to provide adequate instruction or supervision (the primary particulars of breach in the amended statement of claim), but as a consequence of the plaintiff's failure to be alert to the risks he knew to be inherent in the manual handling tasks he was required to perform as a trades assistant.

The work site and the system of work

1. On 23 January 2007, the defendant was engaged in the removal and replacement of rusted 3.2-metre horizontal steel cross or channel beams ("C-beams" or "stringers"), which support a 300-metre section of the below ground coke conveyor. The coke conveyor carries coke and sulphur to various parts of the steelworks. The section under repair on 23 January 2007 was known as the "24C section" of the coke conveyor. The program for the replacement of the rusted and degraded C-beams had been progressing over a series of staged shutdowns of the plant preceding that date. As at 23 January 2007, approximately 80 per cent of the C-beams that were designated for removal had been removed and replaced.
2. The plaintiff was engaged for the shift on 23 January 2007 under labour hire as a confined spaces gas watcher but since this was a rotating position he understood he was expected to provide general trades assistance to the boilermakers assigned by the defendant to work the night shift in the 24C section of the coke conveyor.
3. The section of the coke conveyor to be worked in any one shift was customarily cleaned by contract cleaners to free the area of surface rust as part of the preparations of the site. The C-beams designated for removal were then removed by boilermakers employed by the defendant using oxyacetylene cutting equipment. The boilermakers would customarily hammer at the rusted beams to free the remainder of the surface rust before they were cut.
4. It was common ground that the C-beams were in varying states of rusted disrepair due to the corrosive material in the below ground environment at the steelworks. In milled condition the C-beams weighed approximately 36 kilograms. While some, if not all, of the beams to be removed were likely to have weighed considerably less, depending upon the degree to which they were corroded, this had no ultimate bearing on the issue of liability. In final submissions it was agreed that the weight of the uncut C-beams designated for removal ranged between 20 and 34 kilograms with a C-beam of half that length being half of that weight range, namely between 10 and 17 kilograms, and that this was a weight that could be safely lifted or carried by the plaintiff.
5. The C-beams which were to be removed and replaced were bolted to vertical steel supports or stanchions. The horizontal C-beams, and the vertical stanchions to which they are bolted, comprise the frame or the structure which supports the metal rollers of the coke conveyor. The frame was assembled from a welded steel fabrication utilising standard rolled steel structural components. The steel frame was at a height of approximately 3 feet 7 inches (1.09 metres) from the floor of the underground tunnel with the horizontal C-beams suspended underneath it.
6. The return roller, also housed in the frame, is constructed of rubber and positioned underneath the metal rollers. For ease of removal and replacement of the rusted C-beams, and in order to ensure that the return roller was not damaged in that process (a part of the plant valued at $5 million), the metal roller was hoisted off the supporting structure by riggers using slings and chain in preparation for the boilermakers using the oxyacetylene cutting equipment. Although the rubber return roller was exposed once the metal rollers were raised, it was routinely neither raised nor lowered. It was protected from the heat of the oxyacetylene equipment by a fire retardant blanket. The blanket was placed over the return roller in the area being worked with the oxyacetylene equipment by the boilermakers, and then moved along the roller as the cutting work progressed along the line.
7. The coke conveyor was described in the evidence as having an "on-side" and an "off-side". A walkway extended along the length of the tunnel on the "on-side" of the coke conveyor. Water and air pipes extended along the length of the frame attached to the vertical stanchions slightly above the level of the walkway. These pipes effectively prevented access to the understory of the coke conveyor from the "on-side". The understory of the coke conveyor could be accessed from the "off-side" once the metal roller had been raised. However, the extent to which there was room for a worker to stand upright in that area (assuming there was a reason to do so) depended on the height to which the metal roller had been hoisted and whether the rubber return roller remained in position underneath it. The extent to which there was room for a boilermaker to take up a kneeling or crouched position underneath the frame to affect a cut to the C-beam from that position (again assuming there was a rational reason to do so) was in issue at the hearing.
8. It was common ground in the proceedings that the system employed for the removal of the C-beams by the boilermakers at the direction of the defendant was first to cut through the beam (from the "on-side") at an approximate mid-point along its length, and then to cut it across its width at or near the stanchions (positioned to the left and right of the mid-point, again from the "on-side") to allow the 3-metre C-beam to be removed in two parts. It was also common ground that the trades assistants were expected to assist the boilermakers in that process by removing the cut sections as they were cut free and then to stack them on trolleys and remove them from the tunnel. Replacement C-beams were also brought to the work site on trolleys by the trades assistants.

The issues in dispute

1. A central factual issue in dispute at the hearing was whether there was any need for a trades assistant to physically take hold of the severed C-beam as it was being cut by the boilermaker at the stanchion. It was the defendant's case that after the C-beam was cut at a mid-point along its length, and as the resulting (half) beam was then being cut at the stanchion end, a trades assistant would likely be either immediately at hand, or called upon by the boilermaker in the final stages of the cut, to take hold of the beam and guide it to the ground. This was both for ease of removal of the cut section and to avoid it dropping needlessly to the floor. It was the defendant's case that the cut and corroded beam would usually "sag" at the mid-point as the cut was being progressively made at the stanchion end such that in the final stages of the cut (that is, as the beam was cut clean by the boilermaker), it could be removed to one side by the trades assistants or kicked free of the stanchion by them and removed in preparation for being taken away on a trolley.
2. It was the defendant's case that although the trades assistants would need to physically take hold of the cut section of the C-beam in order to remove it, there was no need for the beam to be held or supported as the boilermaker was applying the oxyacetylene torch (except, perhaps, when the cut was almost complete, as described above) since there was no risk of the cut (half) beam dropping under its own weight at any time until the cut was fully affected through the beam. It was also the defendant's case that there was no structural impediment to the trades assistant standing directly at the C-beam and to hold it with his hands in front of him in that part of the process, that is, that there was no requirement for bending or reaching. It was also the defendant's case that even were the C-beam to move laterally in the process of it being cut at the stanchion end because it had been cut at the mid-point (as to which there was no evidence), there was no risk of it falling and injuring the boilermaker who was cutting the beam given that he was positioned facing the beam on the "on-side", with the half-metre length arm of the oxyacetylene cutting equipment extended towards the beam, thereby allowing a safe distance from the heat of the torch as it was applied to the steel.
3. It was the plaintiff's case that the work of the trades assistants was not always regimented in this way. Rather, the very nature of the maintenance project being undertaken by the defendant allowed for members of the work crew, deployed to assist the boilermakers, to be used by them as and when they required. The plaintiff submitted that the system of work allowed for the boilermakers to exercise their own judgment in affecting the cut of any particular C-beam, including where to best position themselves to affect it and to call on trades assistants to do what they considered necessary to assist in that process. For reasons that will become apparent, it is critical to the plaintiff's case that the system of work could include a boilermaker calling for a trades assistant to hold the C-beam as it was being cut if the boilermaker considered there was a risk of a particular beam falling on him in that process.
4. It was common ground that the plaintiff had not worked on the maintenance project on the coke conveyor at the steelworks prior to 23 January 2007 and has not worked there since. It was also common ground that there was a "toolbox" meeting convened on site by Mr De Gori, the site supervisor, at the commencement of the shift and that the plaintiff attended the meeting as a member of the work crew. The precise content of the instructions or directions as to the system that would be employed to remove and replace the C-beams was in contest, in particular, as to whether the plaintiff was told that the C-beams were to be cut in half to facilitate their removal. The plaintiff gave evidence that he was not told of that fact at the meeting and did not become aware of it by observations such that he remained unaware that the C-beams were removed in two sections when the boilermaker called on him to assist by holding the beam as it was being cut. The defendant submitted the evidence compelled a finding that, at the very least, the plaintiff could not have avoided becoming aware that was how the C-beams were being removed by his handling of cut beams given that he had been on shift for three hours by that time.
5. The plaintiff gave evidence that he had not seen any C-beam cut in the centre in the course of the shift before he was first called upon by the boilermaker to assist in holding the beam and that he had not seen any cut half beams before that time. That aspect of the plaintiff's evidence was also in dispute, in the sense that it was said by the defendant to be so improbable as to be rejected as untrue, as distinct from it being something about which the plaintiff might have been genuinely mistaken.
6. The plaintiff's evidence that the boilermaker was standing either under the coke conveyor when he called out to the plaintiff, or that he climbed under it as the plaintiff approached, and that he was asked to hold the beam so it would not fall on the boilermaker as he affected the cut from that position, was also the subject of very considerable dispute.

The pleadings

1. In the amended statement of claim, the plaintiff contends that the defendant breached the duty of care owed to him by failing to provide a safe system of work in the tunnel where the C-beams were being removed. The amendments were made to reflect the plaintiff's expanded evidentiary statement. Although Mr Cavanagh, senior counsel for the defendant, complained about the late service of the further evidentiary statement, he ultimately did not oppose leave being granted to allow the plaintiff to prosecute his claim in that way being content, as he made clear, to deal with the case that the plaintiff now seeks to advance on the evidence.
2. In the amended statement of claim, the plaintiff also contends that the defendant failed to warn him of the inherent risks involved in the process by which the C-beams were removed and replaced, and that it failed to adequately supervise his work as a trades assistant under labour hire during the night shift at the steelworks. The relevant particulars of breach are as follows: (a) Failed to institute, devise and/or maintain a proper and safe system of work. … (j) Failed to ensure that the plaintiff had been given adequate training and supervised practice in safe lifting and manual handling techniques. (k) Failed to perform any or any adequate risk assessment in relation to the manual handling task that the plaintiff was performing, including the fact that the manual handling in paragraph 4 above [as deposed to by the plaintiff in his evidence] was being done some distance from his body with an awkward posture with the size of the load being more than 750 ml involving the twisting of his back whilst lifting and supporting such load and also involving sudden increase in the apparent weight of the load without notice. … (m) Failing to provide instructions to the plaintiff as to work that was being carried out and, in particular, to advise him that one side of the beam had already been cut so as to allow him to position himself to take the weight of the beam evenly by positioning himself in the centre of the beam. (n) Failing to advise the plaintiff that he ought to merely stand and hold the end of the beam that had been previously cut and allow it to fall to the ground in a controlled manner. … (p) Failing to employ a system of work whereby the employee who was cutting the beam did not do so when they were in a squatting position thereby requiring the plaintiff to hold the beam with a view to not allowing the beam to strike the person cutting the beam and thereby requiring the plaintiff to take the weight of the beam in an awkward manner when cut through. (q) Failing to instruct the plaintiff at the beginning of the shift as to the exact nature of the work that he was doing and the manner in which it was to be carried out so that he was able to properly position himself and manually handle the beam during the process of cutting.

The evidence led at the hearing

1. As the hearing progressed there were relatively few features of the work site in the tunnel, or the system of work involved in the removal of the C-beams from the conveyor, which were controversial, or which remained controversial in final submissions. The controversy was principally directed to the relative positions of the plaintiff and the boilermaker when the plaintiff claims he injured his back, and to a number of secondary issues the identification of which, and in some respects the resolution of which, were directly related to that central controversy. They included, in particular, the likely or predictable movement of the C-beams as they were being cut by the boilermakers and the role of the trades assistants in that process.
2. The identification of the central factual issues in dispute was largely a consequence of the defendant tendering a video of the maintenance work undertaken in the tunnel at BlueScope's premises at Port Kembla by the defendant's employees. It was not suggested by Mr Dooley, senior counsel for the plaintiff, that the video was not fairly representative of the work site in the tunnel and the system of work in operation on 23 January 2007 at area "24C section" (or before and after that date). The video was served in advance of the hearing.
3. In the video, all boilermakers are cutting the C-beams from either a standing position on the walkway on the "on-side" of the frame with the oxyacetylene torch extended towards the C-beam at, or just below, the boilermaker's shoulder height. There was an image, albeit fleeting, of one boilermaker sitting on what appeared to be an upturned bucket also on the on-side of the frame, although it is not clear that he was affecting a cut from that position. The video also shows the boilermakers affecting the first cut to the C-beam at its mid-point then cutting the beam at the stanchion end before being removed by trades assistants.

The plaintiff's evidence

1. The plaintiff was registered with Allmens in 2001, after which he was contracted under labour hire in a general labouring capacity two shifts per week with a related company. In order to attract additional shift work, he obtained his Confined Space Watchers Ticket, working on and off in that capacity and as a trades assistant with Allmens from 2001 to 2007 on a contract basis. He also registered with other labour hire companies during that period. His employment was interrupted as a result of injury on two occasions. In June 2002 he sustained a concussion and fractures in an assault, and in 2006 he sustained soft tissue injuries when his dog became involved in a fight. Although he has worked from time to time as a scaffolder, he was not ticketed to do that work. He did, however, obtain his forklift licence.
2. The plaintiff filed an evidentiary statement on 19 February 2014 in which his account of the incident in which he was injured was very brief, as follows: [45] On 23 January 2007 I received a call from Allmen asking me to work a 12-hour plus night shift onsite at BlueScope. The company I was to work for was K&R Fabrications (Wollongong) P/L ("K&R"). [46] I was told that the job was a Confined Space/Gas Watcher role, but when I arrived on site the foreman, John Doyle, said they only needed one gas watcher on site and I wasn't needed to work in that role. I was given the option of either going home with 4 hours pay or sharing the gas watching and trades assistant work with the other two gas watchers. I remained at work and shared the roles. [47] I ended up assisting a boilermaker who was using an oxy torch to cut through one side of a steel beam, who asked me to hold the beam. The boilermaker started cutting the beam about 2 feet from where I was holding it. When the boilermaker cut clean through the steel beam, the whole thing fell and dropped into my arms with its full weight. My arms pulled downwards. I felt instant and deep pain in my lower back. It felt like something had blown up in my back. [48] I advised my leading hand and other workers of the injury. After my injury, I performed the role of Confined Space Watcher. I sat on the chair at the entrance, signing people in and out of the Confined Space. I was stretching my legs, standing and sitting to try to ease the pain and keep myself flexible until work was completed.
3. On 20 May 2014 (after service of the defendant's video referred to above) the plaintiff filed a second evidentiary statement, which included an elaborated account extending over 24 paragraphs of the incident described briefly in the first evidentiary statement. It also included a detailed hand drawn sketch as to where the plaintiff was standing holding the C-beam and the relative position of the boilermaker but crouched underneath the frame. It was this version the plaintiff confirmed in his evidence in chief as true and correct.
4. What follows is a summary of the plaintiff's evidence drawn from the narrative account in the further evidentiary statement and the questions asked of him about it in cross-examination: 1. Once on site, the plaintiff attended a "toolbox" meeting with the eight to ten workers who were deployed to work the shift with him, inclusive of boilermakers and riggers employed by the defendant and other workers on labour hire. He said nothing specific was said about the work that was to be undertaken during the shift, other than it involved the removal and replacement of the rusted steel beams on the conveyor. He said he was given no specific instructions about how that was to be done, other than it concerned manual handling and that he was told to avoid "pinch points" and to lift with his legs bent and a straight back. In cross-examination, he said he was unable to recall whether the process of replacement and removal was explained at the toolbox meeting. 2. He was then spoken to by Mr De Gori, the site supervisor, and directed to "go down and help these guys [referring to others at the meeting] to start cleaning up". 3. He said he was engaged over the next three hours in "cleaning up small pieces of metal off cuts, welding rods and other material" along the tunnel in the process of which he was able to observe the conveyor, which had "sections of it cut away and replaced". At one point in the cross-examination he said that, in the course of those three hours, he did not lift any of the severed pieces of the C-beam and claimed not to have seen how the boilermakers were cutting and removing the C-beams. Later in his cross-examination, when he was being asked about the assistance he was giving another worker (see (5) below), he said: Q. You'd lifted plenty of these beams before you say you hurt your back, hadn't you? A. No. Q. Not at all in the three hours you had been working down there? A. Only maybe one or two. Q. One or two. Okay. When did you lift the one or two beams in that three-hour period? A. I can't remember. Q. How did it come to your mind then that you had lifted one or two? A. Because I would have moved some steel around, not the whole beams. Q. No, the half-cut beams? A. Or just any pieces. Q. Under what circumstances would you have been moving the steel around? A. When I was doing the clean-up and when I helped the guy with the trolley to come back to the area. 1. Mr Cavanagh then reminded the plaintiff that in his earlier evidence he had been adamant that he did not lift any beams during what he called the "clean up" phase of his work in the tunnel, and that he was equally adamant that it was only "off cuts and bolts" that he had cleaned up. Mr Cavanagh then resumed the questioning: Q. Now you said a minute ago you would have lifted one or two beams before the time when you say you hurt yourself, didn't you? A. I can't recall, but I might have, may have, lifted one here and there with somebody else assisting me as the day - as the shift was going. I can't remember. Q. What are the circumstances in which you would have been lifting one here or there with someone else assisting you? A. I don't know. 1. In the plaintiff's evidentiary statement he said that whilst providing general trades assistance over the first three hours of the shift, someone asked him to "give them a hand to fetch some new steel beams", and that he accompanied that person to where there was a trolley, which had steel beams stacked on it. He went on to say that he assisted pushing the trolley back to where he had been doing the cleaning up and thereafter said that he "assisted that person to unload the beams". In cross-examination he said that he did not physically assist with pushing the trolley or the unloading of the beams and, by including a reference to assisting the person to unload the beams in his evidentiary statement, he only meant to indicate that he was "assisting" by helping the other worker to manoeuvre the trolley and then to hold the trolley whilst it was being unloaded. He said he was also assisting by monitoring air quality in the tunnel. 2. Shortly after providing that assistance, the plaintiff said he was called upon by a boilermaker, "almost out of the blue", to come and help him. In cross-examination, he abandoned the suggestion that he "followed" the boilermaker to the conveyor as he had claimed in his evidentiary statement. Instead he said that the boilermaker called out to him from where the boilermaker was standing, inside the frame of the conveyor, and that the boilermaker then crouched or knelt to affect the cut as the plaintiff approached. He said he was told to "take hold of the beam" as the boilermaker was kneeling or about to kneel inside the frame. The plaintiff agreed that the boilermaker appeared to have deliberately positioned himself in that way to affect the cut to the beam. 3. He said he took up a position relative to the beam on the on-side by holding it with both hands, arms outstretched, 30-40 centimetres from where the boilermaker was about to commence the cut at the stanchion end. He said he took up that position, because the boilermaker said "don't let [the beam] fall on me". In cross-examination he demonstrated that the boilermaker held the oxyacetylene torch above his eye line and applied it to the beam as he crouched or knelt on one knee underneath the frame. 4. The plaintiff said that he did not notice that the C-beam had already been cut in half to his left (or that he had seen that any beams had been cut at the mid-point before being removed) because the lighting in the tunnel was poor. 5. The plaintiff was also cross-examined as to how he was able to detect the level of rust on the beam that was to be removed when the lighting was poor, as to which he said: Q. Well, you have said in your earlier evidence, when asked questions by Mr Dooley, that you could see this steel beam in such detail as to assess the level of rust, couldn't you? That's the effect of what you said? A. Yes. Q. And you could see it in such detail as to observe that there was some sort of debris or material on top of the steel beam? A. Yes. … Q. So you say you could see it was that light that you could determine the level of rust in the particular beam that was being cut by the boilermaker? A: No. Q. You have no idea, do you, about how rusted it was? A. I know there was rust on it. Q. How do you know that? A. Because I'd seen the pieces. Q. Seen the pieces? A. Yeah. … Q. …you used the word in plural, Mr Small. A. I had seen the pieces of scrap steel later on and I'd seen them that night as I was walking down a conveyor. 1. The plaintiff then confirmed that he could see rust generally on the frame of the conveyor. (The video shows the tunnel lit by fluorescent lighting at 3-6 metre intervals on the walls of the tunnel on both the on-side and the off-side of the frame of the coke conveyor. Although that may have left the conveyer and its frame in shadow, it was not put in final submissions that the lighting was so inadequate as to be productive, in itself, of the risk of injury.) 2. The plaintiff said he was not told that the boilermaker was cutting a half beam which would become free of the structure once the cut was affected and did not notice, from anything he observed in the tunnel in the three hours prior to being called upon by the boilermaker, that the rusted C-beams were being removed in two sections. To the contrary. He said it was his expectation that, once the beam was cut through, it may have sagged or buckled or fallen on the boilermaker (to the plaintiff's right) as it was only attached at the stanchion to his left and that it was why the boilermaker said to him, "Watch out it doesn't land on me". 3. The plaintiff estimated the weight of the beam he was asked to hold to be 17-20 kilograms. He agreed in cross-examination that was a lift and handling weight well within his capacity and something about which he did not require instruction. He confirmed that, on his own version of events, he was not concerned at the possibility of taking the weight of the beam because he estimated it was something that he could easily manage were it to fall in the direction he anticipated, that is, to his right. The plaintiff said that when the beam was being cut he was holding it with both hands outstretched, turning his head away (that is, to his left) from the oxyacetylene torch. He said he was attempting to hold the full weight of the beam by applying upward pressure with his right hand (that is, with the hand closest to the cut) to try to keep the cut closed in the belief that the beam was attached at the stanchion at the opposite end (that is, to his left). 4. He said he next became aware of the weight of the beam in both his hands and, as it suddenly dropped downwards, he was pulled down and twisted to his left. He said this caused a "balloon expanding sensation", coupled with severe pain in his back. 5. The plaintiff was shown the video in cross-examination and invited to confirm that none of the beams cut by the boilermakers on the on-side dropped suddenly but, rather, that each progressively sagged at an angle to the ground and then were either lifted and removed or kicked free of the frame and removed. 6. The following questions were put to him in cross-examination: Q. ... if you cut from the top [of the beam] and it has already been cut at the other end, that is cut in half already, which your evidence is that it had been, the beam sags to the ground, it drops slowly to the ground, it doesn't drop suddenly; do you understand that's what I am putting to you? A. I know what you're saying, yes. Q. And do you agree with that? A. If there's nobody holding on to it that's what it does. 1. He went on to say that as the beam he was holding was cut through, it dropped forward and at an angle to his left. Mr Cavanagh asked the following questions: Q. That's what you were expecting to happen, wasn't it? A. No. Q. I just want to put it to you squarely, Mr Small, if it fell to the left it could only have fallen to the left because the middle part had already been cut; you agree with that, don't you? A. Yes. Q. And if, as you say, the boilermaker had been cutting from the top of the beam down, yes? A. Yes. Q. Then, as he cut from the top down, the beam would have started to sag to the left; do you understand that, sag rather than drop quickly, I'm using that distinction? A. No. Q. And you would have felt that as it was happening, wouldn't you, Mr Small? A. No. Q. And that's - is that what happened, it started to sag? A. No, it started to get heavier. Q. Now, you weren't actually asked, were you, to hold on to this beam whilst the boilermaker was cutting it? A. Yes, I was. Q. There were two ways, I suggest to you, of a trades assistant doing this work; that is, you could either wait until the beam fell to the ground, as is shown in the video? A. Yes. Q. Or you could, if you wished, take hold of the beam as it sagged and then remove it and put it in the pile? A. Like they do in the video. Q. Yes, take hold of it as it is sagging? A. Yes. Q. Yes, and that's what happened, you were taking hold of it as it was sagging, weren't you? A. No. 1. At that point in the cross-examination, the plaintiff repeated that as he experienced it, the beam dropped quickly and unexpectedly. He did not complain that the weight of the cut beam was excessive, but rather that he was simply not expecting it to drop quickly. I then asked the following questions: Q. Didn't you say a little moment ago, in rejecting Mr Cavanagh's suggestion that the beam started to sag, didn't you tell me it started to get heavier? A. Yes. Q. When it started to get heavier, forgive me if I misunderstand you, but didn't you then realise, even instinctively, that it was going to be necessary for you to position yourself to take the weight of the beam as it was descending, in effect? A. No. Q. Why not? A. Because I didn't think it was going to drop on that far end. I thought it was just going to drop at this end that I was holding from where he was cutting. Q. So if I understand what Mr Cavanagh calls your complaint, it is two related things. One is that the beam dropped quickly and you weren't expecting it, and you weren't expecting it to drop quickly because you didn't realise that the beam had already been cut? A. Yes, your Honour. Q. It is those two things tied together, is it? A. Yes, your Honour. 1. When tested in cross-examination as to his expectation that the weight of the beam he was being asked to hold was the weight of a 3.2-metre beam, and the boilermaker's request of him to take hold of a beam of that length and weight, he conceded that it was the risk of the beam falling suddenly on the boilermaker that was the danger to which he understood the boilermaker was referring when he asked for help. Q. Isn't that on your case why [the boilermaker] was asking you to hold it, so that it didn't fall suddenly on him? A. The corner would have - could have fallen suddenly, but not the whole piece. Q. But then you were anticipating, were you, that there could be a sudden fall of this beam? A. Yes. Yeah. Q. So it is not that your complaint isn't it [sic] that it might have fallen suddenly because you just say [sic] you anticipate it could have fallen suddenly, your complaint is it then fell at the wrong angle than you were anticipating. Is that right? A. No. Q. What is your complaint then? A. My complaint is that I anticipated it to fall on one end where I had most of my weight hanging, you know, pulling upwards. And once he had cut through it, it had dropped on the - further on the other end which I wasn't notified or didn't know it was going to fall. So that's what got me, because it was like longer on that end and the sudden drop of the whole lot across the --- 1. He went on to agree that, bearing in mind that he understood or thought the beam might fall suddenly, he positioned himself holding the beam tightly with both hands and bracing himself to take the weight of the beam. He said, as the beam fell, he did manage to hold on to it and then place it on a pallet. He was cross-examined as to how he knew where to put the cut beam, as to which he said: Q. You knew where to put it, didn't you? A. Yes. Q. Because that was part of the instructions you had been given? A. No, no. Q. Is it an assumption you made or did you observe someone doing it-- A. I observed myself-- Q. --or observed other people? A. --and others doing the same sort of thing. Q. Had you been observing others doing the same sort of thing for most of three hours? A. No. Q. Just on and off? A. Yes. 1. In his first evidentiary statement he said he advised the leading hand and other workers that he had injured his back. He gave no additional details of the identity of those to whom he reported the injury or the reports he made to others over the following week. 2. In his further evidentiary statement, he said he told the boilermaker he was assisting that he had hurt his back. He said, because of the pain, he stood for a period of time and later reported the injury to "two older workers". He said that one of them said to him "make sure you report it because you don't know what it might be like in another day or two". The plaintiff thought that worker's name was "Alfonzo" because he had "Alf" written across the top of his hat. That worker was not available to be called by the defendant. The plaintiff said that later in the shift Mr De Gori came and spoke to him and said, "I've been told you hurt your back", which the plaintiff confirmed had occurred. He said that Mr De Gori responded by saying, "Make sure you report it", to which the plaintiff replied, "I'm reporting it now". (Mr De Gori was called by the defendant. He said he could not recall any report of injury and was confident he would recall it if one had been made.) 3. The plaintiff said he attempted to continue work in the tunnel but the pain in his back seemed to worsen and so he stopped. He said he reported to Mr De Gori that he could not do the work because of pain, and was appointed to the task of confined space watcher in another part of the plant which involved him sitting down and signing people in and out of the confined space area. He rejected the proposition put to him in cross-examination that he made no report to anyone on site, in particular, that he did not report the injury to Mr De Gori. 4. The plaintiff finished his shift and the next day made a further complaint of injury to his employer via Rod Harper.

The report of injury

1. On 25 January 2007, John Doyle, a Senior Site Supervisor employed by the defendant, prepared an incident report which, under various pro forma fields, records information relating to the plaintiff's injury. According to the incident report, the injury was first notified by the plaintiff to Mr Harper on the morning of 24 January 2007.
2. Although the incident report prepared by Mr Doyle records that the complaint was that the plaintiff woke at about 3pm on 24 January 2007 with a "stiff lower back", the Allmens' Register of Injuries and Treatment, a document signed by Mr Harper and dated 31 January 2007, records the type of injury as a "sprain to the lower back". A pro forma field in the Allmens' records entitled "Operation in which the worker was engaged at the time of injury" records "[injured worker] holding section of steel channel", and against another pro forma field, "The cause of injury", as "strained back while holding steel channel".
3. The incident report prepared by Mr Doyle does not include that detail. According to Mr Doyle, Mr Harper, who undertook to make inquiries of the plaintiff and his condition, reported to Mr Doyle on 25 January 2007 that the plaintiff had no ill effects from the stiff lower back he reported on the morning of 24 January. When Mr Doyle queried Mr Harper as to why the plaintiff had not reported the injury on site, he was told that "[the plaintiff] felt a 'slight twinge', which he just wanted to report but was otherwise ok", and that as of 25 January, he was "carrying out his normal shift and duties".
4. On 30 January 2007, the day before the Register of Injuries and Treatment was prepared by Mr Harper, the plaintiff attended on Dr Mill. Dr Mill's clinical notes were tendered by the plaintiff. They read as follows: New injury - last Tuesday (23/1/07) Working in pit, cutting piece of steel channel - was holding piece with both arms somewhat extended - both ends released - sudden application of weight - sudden [indecipherable] left feeling (tightens) left lumbar - kept hold of steel piece - moved to [indecipherable] - unable to fully straighten.
5. That same day, upon being referred by Dr Mill to a physiotherapist for assessment, the plaintiff reported to the physiotherapist, "one week ago holding on to weight and dropped suddenly, took weight".

Evidence of Dr Adams

1. The plaintiff relied upon the report of Dr Neil Adams of 21 November 2012, which, after some amendment, was admitted as Exhibit 10.
2. Dr Adams was qualified by the plaintiff as an ergonomist. Relying upon the information provided by the plaintiff he undertook an ergonomic evaluation of the system of work involved in the replacement of the C-beams in the tunnel at the steelworks, and the particular circumstances in which the plaintiff claimed to have been injured. That evaluation then informed what Dr Adams described as the foreseeability of the plaintiff's injury and its preventability.
3. In his report Dr Adams made it clear that he was unable to make a precise evaluation of the forces and stresses that would have been implicated in the plaintiff's "lifting and supporting effort" and the related (partial) fall of the C-beam under weight. Instead he made an assessment of risk factors involved in the exercise utilising an estimate of the length and weight of the C-beam and an assumed combined sideways bend and twist, equivalent to 45 degrees of asymmetry. He then applied various multipliers and formulae, according to NIOSH recommendations, and concluded that the weight that the plaintiff could have safely lifted would have been limited to no more than 9 kilograms. (NIOSH, the National Institute for Occupational Safety and Health, is an administrative body in the US similar to the Australian Workcover Authority.) Dr Adams also concluded that the exertion of effort involved in the plaintiff holding/lifting the C-beam imposed potentially injurious stress on his musculoskeletal system. He went on to identify various risk factors involved in the system of work, including the need for adequate and informed supervision to ensure that any potentially unsafe practices, such as those which he assumed the plaintiff was directed to perform by the defendant's employed boilermaker, were minimised. In Dr Adams' view, the on-site supervisor should have ensured that the plaintiff was fully informed of the specific tasks he would be called upon to perform as a trades assistant, including "where and how the beam was and was not supported".
4. Important amongst the assumptions upon which Dr Adams' opinions were based, was that the plaintiff was required to give some support to the C-beam that was being cut free of the frame it in order to "steady it" in the process of it being removed. Mr Cavanagh did not challenge that as a working assumption. However, as he submitted, whether the plaintiff was asked by the boilermaker to hold the C-beam from the commencement and during the entire process of it being cut free so that the beam would not fall on him remained in issue in the proceedings, as did where the plaintiff stood relative to the mid-point of the beam at that time. Although, for the purposes of his report, Dr Adams accepted the plaintiff's recollection that the severed end of the C-beam at the mid-point was in shadow because the illumination in the tunnel was poor, and that this contributed to the plaintiff's ignorance that the C-beam had been cut in the mid-point, in final submissions Mr Cavanagh did identify this as an invalid assumption. I am satisfied that must follow, Dr Adams having accepted that the lighting in the tunnel as shown on the video was inconsistent with the plaintiff's description of the lighting.
5. One of the further assumptions that Dr Adams applied in the preparation of his report was that the plaintiff had his right hand on top of the C-beam and his left hand underneath it, taking the weight of the beam as it was falling. He accepted in cross-examination that by holding the beam in that fashion, the plaintiff must have had the expectation that the beam would be dropping to his right. The plaintiff did not give that evidence. He said he had both hands under the beam. Mr Dooley took the issue up with Dr Adams before he was cross-examined. Mr Dooley asked whether the plaintiff's altered configuration as he held the beam would make any difference to Dr Adams' ultimate opinion, as to which he said: Q. So what difference does that make? A. It does make a difference to my understanding of the way in which the entire movement occurred. If the right hand was underneath, if he was gripping the beam firmly, in order, initially, to prevent that end from dropping. Q. You're pulling down. He was pushing up, with your hand. You are pulling down with your right hand. He was pushing up? A. He was pushing up with his right hand. When the beam started to swing to his left, and dropped downwards, any upward push with the right hand would increase the swinging movement, but it would not increase the weight imposed on his left hand.
6. Dr Adams went on to say that, whilst his appreciation of how the injury was sustained differed from the plaintiff's account in evidence, his analysis according to the NIOSH criteria, which assumed a two-handed lift, still held.
7. In cross-examination, Dr Adams confirmed that, in undertaking his calculations to arrive at a safe lifting weight according to NIOSH criteria, his assessment of the maximum weight that the plaintiff should have been lifting was retrospective, that is, based on his assumptions as to how the plaintiff was holding the beam; the load he was holding/lifting and the situation in which the lifting occurred. He also agreed that in applying the NIOSH formulae, each of the factors to be taken into account required specification before an assessment could be made of what the defendant should have done as a preventative measure to ensure against the risk of injury including, in this case, that the plaintiff: 1. was required to twist his spine at 45 degrees; 2. was required to lift the beam under a lifting force through a vertical distance of 30 centimetres; and 3. was standing 45 centimetres away from the beam, that is, the horizontal distance between the centre of mass of the load (of the beam) and a point midway between the plaintiff's ankles.
8. Of the factors that Dr Adams assumed in his calculation of a safe lifting weight, the plaintiff's position 45 centimetres from the C-beam in order to hold the beam was not borne out by the evidence. I am satisfied there was no obstruction by the structural position of air and gas pipes to him taking a position in much closer proximity to the beam as shown in the video.
9. Mr Cavanagh also cross-examined Dr Adams referable to the plaintiff's evidence as to where he was standing relative to the boilermaker when he claimed that the beam tipped or dropped unexpectedly to his left. Dr Adams confirmed that the average width, shoulder-to-shoulder, of an adult male is 50 centimetres. Mr Cavanagh suggested that being so, and assuming the plaintiff was not standing shoulder to shoulder with the boilermaker (which was not his evidence), he would necessarily be taking the weight of the cut beam close to the mid-point of the cut beam, even if unaware that the beam had been severed. Dr Adams maintained that there remained a "very real possibility" that, factoring in the need to be some safe distance from the application of the oxyacetylene torch, the plaintiff might be as close as 25 centimetres to where the torch was cutting and be unaware that the beam was cut 125 centimetres to his left.
10. As the cross-examination continued Dr Adams made it clear that it made no difference to his analysis that the C-beam was of any particular length, or that the plaintiff was standing at a particular position along its length, because his analysis was based on the weight of the beam and the movement involved as it fell. Having given that evidence Mr Cavanagh asked the following question: Q. Excuse my lay person's ignorance, Dr Adams, but are you suggesting that it makes no difference to the force applied to a person's spine, or the twisting motion that might happen ‑ assume he's holding both hands equally out, and you've got his left hand ‑ whether or not there's 100 millimetres or two metres to the left, that is, if it drops suddenly it really doesn't matter whether it's 100 millimetres or two metres, is that what you're saying? A. No. I just said that the only variable that is affected by changing the location of which he's holding it, is perhaps the amount of twisting and, as I said, there are two aspects that are twisting. There's the horizontal twisting, because of the centre of mass of the load from his body, which entails that asymmetric loading over the lower back, because the weight is to the left, in this case, of the body, and there's the vertical twisting as the upper body is twisted to the left, as the load drops. Now, if the load isn't as far to the left as I assumed, then both of those factors might be reduced, but none of the others would, because they depend on the other variables that need to be taken into account.
11. I then asked the following questions: Q. There is a direct correlation between the amount of twist in the operator's back and the load under which that movement is experienced, isn't that right? A. Oh, if you've got a heavier load. Q. But the load is in the length of, in this case, the beam, held in the direction in which the twist is oriented? A. Practically yes, but in terms of this analysis, you take each variable that can contribute to an increase risk of injury independently, and then multiply them together, so if you take one out it doesn't mean that you take all of them out. Q. No, but the end point could not remain the same if there is a significant variable, and in this case I want you to assume that the evidence may well reveal that the extension of the metal beam to Mr Small's left was nothing like two metres. I want you to assume that I am likely to find, and I will make it clear to the parties, that it was nothing like two metres. Indeed I want you to assume it was no more than 700 millimetres, which means a third of what you have taken into account as it being? A. The total length, your Honour, was 700 millimetres, or the extent to his left? Q. The extent to his left. Now, my very amateur understanding of the methodology that you have employed, and I will have to spend some time with it, but that would seem to me to have a potentially quite dramatic impact on the risk of a twisting injury being sustained in the other circumstances, as fixed as they are, is that right? A. Yes, it would have an effect. I don't know that it would be all that dramatic …
12. Under cross-examination, Dr Adams also confirmed his expectation that as the C-beam is cut (that is, as the oxyacetylene torch is being applied in a downward fashion across its width), there is an increased force across the length of the beam (cut at the mid-point) given that there is progressively "less and less holding the beam in position". He was invited in those circumstances to confirm that, with a 5-millimetre cut at the mid-point, the beam would be likely to "sag to the plaintiff's left" as the cut progresses towards the final cut: Q. As it started to sag only that little bit, if a person had his left hand under on the left‑hand side or end or even in the middle, that would explain, wouldn't it, that person feeling it being heavy, that is, the weight was affecting his hands and it was starting to get heavy? That would explain that, wouldn't it? A. He would probably feel ‑ I would expect that first movement, if it did drop at all, and that is assuming that it does. It partly depends on the way the cutter has made his cut because when you've got a C section, the bottom angle of the C can retain sufficient strength to maintain the support of what is only ‑ you've told me ‑ 1.5 metres of only 18 kilograms, and the steel may not give way until almost the very end of that cut. HER HONOUR Q. But if the handler ‑ in this case Mr Small ‑ experienced a feeling of weight under his left hand in the process of the cutter doing his job, that would suggest that there was some displacement of weight from right to left as Mr Small was facing the beam, would it not? A. That would be so if he did detect that as an indication of the beam dropping. He may - it's possible, your Honour. … CAVANAGH Q. And if the person, the handler, felt that displacement or increased weight on his left hand, that would surely signify to the person, if he hadn't already noticed it, about 10, 20 or 30 centimetres to his left, that the left‑hand end wasn't supported in the way he'd assumed, wouldn't it, Dr Adams? A. It could, but not necessarily. It could simply suggest that the support at the left‑hand end that was assumed to have been there had moved because of the movement of the beam. When you're in that kind of working situation with very uncertain visual stimuli available to you, then you don't necessarily record every other sensory input as conveying the information that ‑ when we're talking about it in this entirely different situation, we don't necessarily interpret each sensory input as having the same meaning as we're able now to give it when all we are considering are the various sources of information that could have been available and that could have been used if the person was prepared to recognise those stimuli as relevant. I'm not saying that it did not happen or could not have been noticed, but I can accept that even if it did happen, it may not have been noticed or conveyed the message that it's obvious to us now it could have conveyed.
13. Finally, Dr Adams agreed that 10 kilograms is a very light weight for a trades assistant to lift and that 16-21 kilograms is recognised as an acceptable lifting limit and, finally, that he did not consider 17 kilograms to be heavy. These questions were put, it would seem, to meet an account the plaintiff gave to his treating doctors that the "weight he was required to lift was heavy". Although that evidence was not before me, it gave context to the concessions that Dr Adams made in light of what was ultimately agreed to be the likely weight of the beam the plaintiff was asked to hold.

The defendant's case

1. John Doyle was the first witness to give evidence. He was employed by the defendant as a Senior Site Supervisor. The plaintiff was working under Mr Doyle's supervision during the course of the night shift on 23 January 2007, although he had no personal dealings with him.
2. Mr Doyle gave evidence of his familiarity with the maintenance project being undertaken in section 24C of the coke conveyor on 23 January 2007. It had been undertaken, as he described it, "on many occasions over many years at the steelworks".
3. Upon receipt of a work order from BlueScope for the project, it was Mr Doyle's responsibility to organise on-site measurements and the mobilisation of staff and equipment. He also gave evidence that the defendant has a system of ensuring that a particular job or project at the steelworks is documented, and that the personnel deployed to a particular maintenance task attend "toolbox" meetings and are made aware of the Job Safety Analysis (JSA) particular to that project.
4. Both the JSA and another document generated by the defendant entitled "Site Job Check Sheet" were tendered in the defendant's case. The Check Sheet refers expressly to the JSA under the field entitled "Hazard Control Form". That field identifies "hazards" particular to a project, "consequences" that might result from identified hazards, and "protective measures" which should or might be taken to address the identified hazard.
5. The JSA does not make any reference to the method by which the C-beams were to be removed and replaced, that is, in two sections with the first cut at the mid-point along its length. "Manual handling injury" is identified on the Job Check Sheet as a hazard and, under the heading of "Setup gear in basement" (which I take to mean the underground tunnel), numerous hazard control measures are identified due to the use of oxyacetylene cutting equipment. Nothing is identified as hazardous or problematic with regard to the removal of the C-beams.
6. The JSA was signed by the plaintiff signalling his attendance at the "toolbox" meeting where the Site Job Check Sheet was discussed. The Check Sheet makes no specific reference to the C-beams to be replaced being cut in segments and removed.
7. As to the process of removing the rusted C-beams, Mr Doyle's statement records the following: [22] Each section of channel beam is approximately 3 metres to 3.1 metres long. When it has been removed, each section is cut in half by a boilermaker using an oxyacetylene torch. After the section is cut in half the boilermaker may request or it might be just generally part of the process that the trades assistant would take hold of one end of the half beam whilst the other end is being cut by the boilermaker. The system involves the boilermaker using the oxytorch to cut and the trades assistant removing the cut beam, either by holding it as it is cut or picking it up off the ground when it falls and placing it adjacent to the area of the beam to be placed on a trolley. When the trolley is full of these cut beams it will be taken away, unloaded and then brought back to be loaded again. [23] Once the beam is cut in half it does not fall but starts to drop whilst the boilermaker is cutting the other end. That is, it drops gradually as the boilermaker cuts through the beam. [24] On the particular night Mr Small's role was to hold or pick up the half beams and place them on the trolley. In other words, he was working with the boilermaker and would be required to take the weight of a half beam or pick it up and put it on the trolley as the boilermaker cut it. [25] The task is a simple task. The weight of the rusted beam is significantly less than that of a new beam. Indeed, it is only a fraction of the new beam. The weight of a rusted beam may be around 17.6 to 26.4kg. That means that when it is cut in half, the weight of the beam which the trades assistants, such as the plaintiff, was required to lift or hold would be between 10kg and 18kg. [26] The half beam does not drop suddenly as it is being cut. It lowers gradually until it falls. The boilermaker is not welding; he is using an oxyacetylene torch. It is not necessary to turn away from the boilermaker whilst he is undertaking the work. [27] I have supervised this particular maintenance task on about 20 occasions. I have seen the work done and been actually involved in the performance of the work on a number of occasions. The job has been done the same way for at least 10 years beforehand (as far as I can remember) and is still done the same way.
8. In his evidence in chief, Mr Doyle was asked to comment upon the plaintiff's account of how he sustained the back injury. In particular, he was asked whether he had ever seen any boilermaker employed by the defendant affecting a cut to a C-beam from underneath the coke conveyor, as to which he said that it is "a silly or stupid position" for a boilermaker to put himself in given the dangers inherent in endeavouring to affect a cut with oxyacetylene cutting equipment in a confined space.
9. As to the potential for a boilermaker to have knelt or squatted down under the frame, he said in cross-examination that he had never done it as a boilermaker and could see no need for anyone to kneel or crouch down to cut a C-beam. While he conceded that a boilermaker might do so were it to suit "their whim or desire", he did not accept that the C-beam could be cut safely by a boilermaker in that position, and could not see any rational reason why a C-beam would be cut from underneath the frame. As to that potentiality, he said: Q. What I want to suggest to you is, is one of the things that happens from time to time is that boilermakers find it more convenient to work on the inside of the conveyor structure in that that gives them very ready and easy access to that remnant section on the stringer ‑ on the structure upright? A. I wouldn't agree. Q. You see a lot of people doing things differently over the years, is that correct? A. Correct. Q. So that it's not, as it were, either impossible or beyond the bounds of reason that one of the boilermakers might get in, get in under the structure itself, and do the cutting on a particular occasion with a view to more being able to readily remove the remnants of the C sections on the inside of the conveyor structure, do you agree with that? A. Can I just expand on that, if that's the‑ Q. Just answer it and I will let you expand, certainly. A. A boilermaker could get inside there. Q. Yes. Did you want to expand? You might as well do it. Mr Cavanagh will do it later. A. A boilermaker would not put himself underneath there and have the risk of hot metal falling on him in a low area when he can just reach around the corner and wash the bolt off. Q. That's a particular choice, is it? A. Self-preservation choice, yeah.
10. I note that Dr Adams agreed in cross-examination that a boilermaker would not be likely to position himself underneath the frame of the coke conveyor if he could avoid doing so, and would not have expected the boilermaker the plaintiff was assisting to have applied the cutting torch to the beam where it would be at risk of falling on him.
11. As to the proposition that the boilermaker might ask the plaintiff to "hold the beam so it wouldn't fall on him", Mr Doyle said he thought it "highly improbable", having never seen a boilermaker position himself underneath the frame. He also gave evidence that, by reference to the plaintiff's line drawing (Exhibit 3) and the line drawing specifications (Exhibit B) of the coke conveyor, inclusive of the positioning of the metal rollers and the return roller within the frame, there was very little space inside the frame to accommodate a person, whether standing or kneeling. He said a person could conceivably stand within the frame but only with great difficulty. He added the boilermaker would have to be a "very slim person to get in there".
12. In cross-examination, although he accepted that it was not until some time in 2011 that he was asked to recall the reported incident of the plaintiff's back injury, he said he had a recollection of the incident because he filled in the incident report. He conceded, however, that without having read the incident report he may not have remembered the incident itself. He said that he had a recollection of the incident despite the passage of time for the following reason: Incident reports tend to stay in your mind. They are a necessary part of our performance reviews and KPIs, as far as the accounts with our clients. We don't take them lightly. They're a serious bit of information that we use as a learning tool for learning. And when we're filling one out, it's due diligence, basically, to get the facts right and get things down, what actually happened in that, in that particular incident.
13. He agreed that the JSA did not identify the specific nature of the task to be undertaken by the trades assistant in the tunnel, and it did not make any specific mention of the potential for the trades assistant to assist in the cutting phase of the project by either holding the end of the C-beam and guiding it to the ground, or simply allowing it to drop before removing it in preparation for being trolleyed out of the tunnel. Mr Doyle conceded that unless a trades assistant had done work on that particular project before, or had observed the process of removal and replacement of the C-beam, he would not know, with specificity, how the work was being carried out on site.
14. He also gave evidence that he would have expected a boilermaker who either had a trades assistant assigned to him or whose help he called upon, to communicate with the trades assistant as to what he wanted the assistant to do in the particular circumstance. He gave evidence that if a trades assistant in the plaintiff's situation were directed to assist the boilermakers in the tunnel for the first time, he would have expected the site supervisor to have explained the way in which the C-beams were to be removed and replaced, as to which he said: Q: When you say a conversation, I know it's perhaps not as formal as we're talking about now, but you would expect Vito [De Gori] to stand by the conveyor, and the boilermaker is here, he's cutting the C frame off, and you either guide it down or just let it drop, and then put it on the trolley and then, when it's full, direct him to move it away, but some conversation like that? A: Yes.
15. He was asked whether he had ever seen a C-beam being cut at a stanchion end not simply float or sag to the ground, but to tip or fall suddenly, in particular, if the beam were seriously corroded. He said that he did not expect that would happen and had never seen a C-beam fall in that way in the 15 years when he had either observed the work being done or done the work himself.
16. As to the possibility of a trades assistant being asked to hold the weight of a C-beam that was in the process of being cut, he said: I could not say 100 per cent of the time that that hasn't happened. Maybe there might have been an obstruction or something on the way on some occasion, some sort of electrical equipment or something that needed to be protected. But in this particular case, there was no electrical equipment in that particular area.
17. He gave evidence that there was no occasion (and he was categorical about it) where the return roller was raised with the metal rollers of the conveyor. He said it was always attached to the underside of the conveyor frame. He said it was always protected with a fire retardant blanket whilst the oxyacetylene cutting work was in progress and, for that reason, there was no need to raise it.

Mr Dimkovski's evidence

1. Mr Dimkovski gave evidence that at the time of making his statement he had worked for the defendant for 10 years and, although he could not remember with any precision what work he was performing on 23 January 2007, he accepted that he was working as a boilermaker on the night shift undertaking the replacement of C-beams in the coke conveyor section, having regard to his name on the Site Job Check Sheet. In his statement he said, "I did not ever observe the beam to drop suddenly whilst I was cutting it. As I cut from the top, the beam would just gradually break away". He confirmed that the process he employed as a boilermaker was to initially cut the C-beam in half, and then to move to the stanchion end to affect the final cut. He also said that as the cut was being affected, the C-beam would commence to drop gradually until he had cut it through, when it would fall to the ground. As to the involvement of the trades assistants in that process, he said: [9] A trades assistant would either be standing there holding the beam as I was cutting the end so that he could simply put it straight into the trolley, wheelbarrow or other means of removing the beams or he would simply pick the beam once cut up off the ground and put it into the trolley or wheelbarrow.
2. He said the cut off segments of C-beams were not heavy, particularly given the degree to which they were rusted. He said he had personally seen trades assistants "pick up, carry or lift many [C-beams]" in the process of removing them for ultimate removal from the tunnel.
3. He also gave evidence that he had no recollection of the plaintiff (or any trades assistant) complaining to him that he had sustained a back injury whilst assisting him in the removal and replacement of the C-beams in the tunnel.
4. In questions asked of him by Mr Cavanagh referable to the plaintiff's account of how he was injured, he said: Q. Can you assume that it has been suggested that a boilermaker climbed under the beam and from the other side of the beam, not the side that showed on the video where people were cutting, the other side, that he was crouching down holding the oxyacetylene gun in his hands, with his hands being at about face level, and he was cutting the beam in that way. So crouching down, holding the other side of the beam, holding the oxyacetylene gun, the handle at about face level; do you have any recollection of ever doing it that way yourself? A. No, no, no. Q. Have you ever seen anyone doing it that way? A. No. Q. You don't recall Mr Small at all? A. No, I don't.
5. In cross-examination by Mr Dooley, he said: Q. Have you ever seen anybody carrying out the oxy work from inside the conveyer structure? A. No. Q. You have never done that yourself? A. No.
6. He was also invited to consider whether there were occasions when the C-beams, in a degraded state, might fall toward where he was affecting the cut, or on occasions "twist towards him", to which he said, "Not really, no". It was his experience that beams never fell towards him, they would usually drop down although, on occasion, a trades assistant may have to give it "a bit of a tap and it will fall down".

Mr De Gori's evidence

1. By reference to the Site Job Check Sheet, Mr De Gori confirmed he was responsible for delivering the "toolbox" talk at the commencement of the night shift. He said he had worked on at least six to ten occasions on other sections of the conveyor belt before 23 January 2007 as the leading hand, and had given the toolbox talk on all other shifts. He said the toolbox talk was the same for each shift and, insofar as it being specific to the job that was to be undertaken during that shift, he said: Q. So as if you are in the tool box meeting, what sort of things do you say? A. I say almost, firstly, you got to show the job they are doing it. We have got to do it. And then we discuss I think to remove this piece and we do it like that. Anybody he got any questions they can ask because the tool box meeting is for everybody, anybody can ask about that. It is not only the supervisor or whatever, anybody has to put, so it is improved on.
2. He went on to explain that, when he said "and we do it like that", he described what was involved by "doing it". He said: Q. You tell me what you told the men in the meeting then? A. Well, first I say we have got to lift the conveyer, make sure with the chain lock that's the rigger's job. And then we have got to put the fire blankets on the conveyers for the belt. And then we require, if we got to move the bottom roll, the bottom roll it is just sitting there, we have got two people one each side, they just lift it up, they drop it down. Q. That's if necessary? A. If necessary, that's correct. And then the boilermaker cuts the one piece‑ Q. The one piece? A. The rust channel, sorry. Q. The rusted channel? A. Yes. He cuts in one half. Q. In half? A. And one they, they cut one side in the middle and then they go to the other side and they cut it and leave one inch, one inch and a quarter, to make sure it holding there, and then the other guy go and help, say, probably, two or 300 from the channel, whatever, he cuts the last inch and they can remove the channel outside, make sure it is not a trip hazard. … HER HONOUR Q. What is the next thing that you tell the workmen? A. Then he cuts the other end. Q. The boilermaker cuts the other end, yes? A. But he leaves one inch, one inch and a half before he finishes cutting. Q. He cuts through but leaves an inch? A. That's right. And then the senior helper, the helper, whatever, he go and help to hold the channel, you know, where it is comfortable for him. Q. Take pause, he calls on one of the other blokes? A. No, usually there are two people there all of the time. Q. So he calls on his helper? A. Yes. Q. Is that like a trade assistant? A. He can be a trade assistant or he can be myself. He can be anybody. Q. He cuts through leaving half an inch. He then calls on a helper to ‑ did you say "hold" the channel? A. Yes, hold the channel. And then once they cut it, he can move it outside because they're not heavy, probably not even 10 kilos. Q. So he gets the helper to hold the channel, then he cuts through the last inch? A. Yes, because what happened ‑ what happened to the channel when they cut it there, it drops on this side here and it touches the ground already. So really what he got to do, just to keep the balance there.
3. When the plaintiff's account was put to him for comment, he said: Q. It's been suggested in this case that one of the boilermakers on the job went under the channel beam and did the cutting from the other side of the beam, that is if you look up at the video there you will see there is one side, and so he got under the beam and did the cutting from the other side using the same‑ A. No. Q. Have you ever seen a boilermaker in all the times you've been down there do that? A. No. Never. Q. Would there be any problem in doing it that way? A. Yes, it is because one, I don't think be very hard to fit in the bottom of the conveyer. Second sometime you never know people get cut on this side, some people cut on the other side, so all the spark it can go anywhere. So it's better comfortable for the guy to stand in it, besides they got to cut like this on the round. Q. You're indicating you're leaning over and looking upwards? A. Yeah, probably got to lie in there completely because I don't think some got enough.
4. In cross-examination on that description of the process he confirmed, in answer to questions I asked, that given that the C-beam was being cut at the stanchion end, in leaving a section uncut and then allowing the beam to sag at an angle to the ground before the final cut was affected, there was no necessity for a trades assistant to be called on to hold the beam at any time other than within what he described as "the last cut", and only then to ensure that the cut beam did not fall and injure the foot of the tradesman or the boilermaker. As to that risk, he said as follows: Q. So one of the problems of the cutting there, the idea of cutting three‑quarters of the way through, is that it stops the risk of that piece of metal coming and striking the person who is cutting it? A. That's correct. Q. And so that that is why you are then in a position where you can move yourself away, and more particularly, you can have a trades assistant come in and guide it to the ground away from the boilermaker? A. That's correct. Q. I mean, if somebody was asked to assist the boilermaker to hold the piece of metal to the channel to avoid‑ A. Okay. Q. ‑it falling and perhaps striking the operator, the boilermaker, and that person came and stood quite close to the boilermaker, that is, just 30 centimetres away? A. Yes. Q. Do I take it then that the boilermaker would in that position should have told the trades assistant, don't stand here, move out of the way until I have finished my cutting? A. That's correct.
5. Mr De Gori was asked questions by Mr Dooley about whether there was room underneath the frame for a boilermaker to stand or kneel. Although he accepted the possibility of the return roller being raised when the metal rollers are raised, which would allow for a person, were they minded to do so, to walk from the off-side to the on-side of the conveyor or to take a shortcut from one side to the other, he said that nobody under his supervision would do so without his permission. He also volunteered the view, coincident with that expressed by Mr Doyle, that if a person were to either walk underneath the conveyor, stand underneath the conveyor, or squat or kneel down underneath the conveyor, that person has "got to be somebody skinny … not somebody who has got a bit normal body … at least he's got to be small, yeah".
6. He disagreed with the proposition suggested to him in cross-examination that the toolbox meetings were so informal and lacking in detail as to be likely to be ignored by those in attendance. He said the importance of the toolbox meeting was that it was part of the safety procedures adopted on site, even to the extent of including the need to ensure that the job site was kept free of debris by the removal of scrap metal. He agreed that most of the matters discussed at the toolbox meeting were common sense, but that did not diminish its importance as part of the defendant's on-site safety protocols. He said while the procedure for the removal and replacement of the C-beams (including that the C-beam should be allowed to fall to the floor without the need for them to be lifted or held) was discussed, where a particular procedure was called for on-site it was also left to the individual boilermaker to adapt that procedure. He also confirmed that, in his experience, boilermakers will sometimes direct or ask trades assistants for assistance as they see fit.
7. Mr De Gori agreed that there was nothing in the JSA where the cutting of the C-beams in half was specifically noted as a matter to be discussed. He said that was likely to be because amongst the experienced boilermakers, all of whom well knew that the beams were to be cut in that way for ease of removal, it may not have been written down as a matter warranting discussion and that if there were a need to discuss it with the trades assistants on shift for any reason, that would have occurred in the tunnel where the work was to be undertaken.
8. When cross-examined as to the particular process of removal and replacement of the C-beams, he said: Q. You described the cutting of the beams, there's no general requirement that the beams be cut in half, is there? A. We discuss how we got to do the job. That's all agreed to do it. Q. You'd hardly with a group of experienced boilermakers on this job, you wouldn't have sat down and talked to them about that on this day, would you? A. When we talk we talk in general. We don't go individual. That's why we do the box meeting and there everybody accept how we talk. Q. When you have these 10 feet long or 3 metres long stringers, the C channels, there's no requirement for them to be cut in the middle first is there? A. Yes, there is. Q. They always do it or only sometimes do it, cut them in two? A. Always they do. Q. Always do? A. Depends who do the job. When I was there they do it but I can't change it for somebody else.
9. He went on to confirm that that was a matter that was always discussed in the toolbox meeting. In answer to questions I asked, he said: Q. You say usually the boilermaker uses his torch and cuts the beam in the middle? A. That's correct your Honour. Q. Did you in the toolbox meeting tell the boilermakers? A. Yes, we discuss it always. Q. Wait. Wait. Did you tell them they must do it that way? A. No. Q. Or that was the best way to do it? A. That is the best way to do it. We never say must do this way.
10. Mr De Gori confirmed in evidence in chief that if an injury were reported, in particular were a worker to have complained of a back injury, he would immediately call the supervisor (Mr Doyle, in this case) and advise him of the incident and call the safety officer to attend to the injured worker. He confirmed that the defendant's reporting procedure necessitated that line of communication be followed and that he followed it.

Mr Simpson

1. The defendants served a report from Colin Simpson, one of the principals of Simpson Associates Physical Engineering. Mr Simpson is also qualified as an ergonomist and as a consulting and industrial and automotive engineer. He was unavailable to give evidence in the proceedings. With some amendments, his report was tendered without objection.
2. Mr Simpson took issue with Dr Adams' approach to risk assessment, in particular, his ergonomic evaluation and risk analysis based on NIOSH. He also identified a series of erroneous assumptions in Dr Adams' analysis, in particular that the plaintiff was exerting vertical force with his right hand in a downward direction and upwards with his left hand in order to support the beam. In Mr Simpson's opinion, Dr Adams' attempt to utilise a scenario for risk assessment that was physically impossible, translated into what Mr Simpson regarded as a "gross misunderstanding of the mechanics and physics of the event".
3. Dr Adams' initial resistance under cross-examination to what he ultimately accepted was an error in the assumption about the plaintiff exerting vertical force, and to fail to query why the plaintiff would attempt to hold or support a beam by that means, in my view, undermined the weight of Dr Adams' opinion generally. Of greater significance is Mr Simpson's criticism of what I am satisfied is Dr Adams' unqualified application or adaptation of the NIOSH formulae and data. In Mr Simpson's view, for the application of the NIOSH formulae to be accurate, a disciplined determination of the various multiplication factors, each of which should be tested for accuracy and absent bias was necessary, including: 1. the horizontal location of the hands from the body (H); 2. the vertical location of the hand relative to the floor (V); 3. the distance travelled with the load (D); 4. the asymmetry angle or twist (A); 5. the lifting frequency (F); and 6. the object coupling grip (C).
4. In Mr Simpson's opinion, Dr Adams wrongly rated the horizontal distance of the plaintiff's hands (H) (there being no impediment to the plaintiff standing directly beside the beam as it was being cut) and, for unexplained reasons, provided for a lift through a vertical height of 30 centimetres as another multiplier. Mr Simpson also questioned Dr Adams' appointment of the asymmetry factor (A) as a 45-degree angle and the frequency of lifting factor (F). Applying NIOSH calculations after these multipliers, Mr Simpson calculated a safe lifting weight of 18.33 kilograms.

Restatement of the competing cases

1. The plaintiff's case is that after being assigned to provide general trades assistance in the tunnel, but before he had done anything other than tidying up metal scrap, he was called upon by one of the boilermakers to take the weight of the C-beam the boilermaker was about to cut to ensure that the beam did not fall on the boilermaker and injure him and, in the process, was himself injured.
2. It is the plaintiff's case that as he positioned himself at the C-beam with both hands underneath it, the boilermaker was crouched on one knee at a distance of 30-40 centimetres to his right underneath the frame of the coke conveyor from where, with the oxyacetylene torch angled to his head, he affected the cut from top to bottom across the width of the C-beam. It was the plaintiff's evidence that he needed to avert his eyes to his left to avoid the heat of the boilermaker's torch during the cut.
3. It is integral to the plaintiff's case that when the boilermaker had cut through the C-beam from underneath the frame, it immediately and unexpectedly tipped or dropped sharply to his left, causing him to twist sharply under its weight. He said it was this that caused him to suffer immediate pain in his lower back incapacitating him from heavy duties for the remainder of the shift. It is also integral to the plaintiff's case that the shift in the weight of the beam to his left was experienced by him as sudden and unexpected because he was unaware that the beam he was holding had been cut in the centre to his left.
4. The parties addressed their final submissions on the agreed basis that the Civil Liability Act will not be engaged unless the plaintiff discharges the evidential burden of establishing, on the probabilities, that the mechanism by which he sustained his back injury was as he described in his evidence. It was also common ground that the plaintiff would also need to satisfy me (again, on the probabilities) that he had not been told that the system of work involved the C-beams being removed in two pieces; he did not otherwise learn from his exposure to the system of work over the preceding three hours that the C-beams were being removed in two segments; and, finally, that he did not notice that the beam he was holding sagged progressively to his left in the process of it being cut.
5. Mr Cavanagh submitted that after considering the plaintiff's evidence in the context of the evidence called by the defendant in its case, I would be satisfied that his account of how he was injured was inherently improbable. He submitted that this included, but was not limited to, the actions of the boilermaker in kneeling or crouching under the frame and cutting with oxyacetylene equipment from that position with all its inherent dangers, and the plaintiff's claim that he was ignorant of the process of removal of the C-beams. He submitted that I would reject the plaintiff's evidence as to these critical issues, or that at least I would not be persuaded that he had discharged the evidential onus of establishing that his back injury probably occurred in the circumstances he described.
6. Mr Cavanagh further submitted that I would have grave doubts as to the plaintiff's credibility generally, the account of how he sustained his injury detailed in his second evidentiary statement being volunteered for the first time upon service of the defendant's video of the system of work for the removal and replacement of C-beams in the tunnel. Mr Cavanagh submitted that, upon viewing the video, the plaintiff would inevitably have realised that were he to have stood alongside the boilermaker 2 feet (or 60 centimetres) to the boilermaker's left as the cut was being affected as he claimed in his first evidentiary statement, and were he to continue to maintain that from that position he was unaware that the beam had been severed with the cut at the mid-point of the beam less than a metre to his left, his account of the mechanism of injury was unsustainable and, for that reason, he repositioned the boilermaker to have him affecting the cut from underneath the frame.
7. In short, Mr Cavanagh submitted that although it was conceded that the plaintiff injured his lumbar spine at some time during the 12-hour shift on 23 January 2007, I would not find it occurred in the particular circumstances the plaintiff claims and, that being the case, it was not an injury where the defendant's liability under the Civil Liability Act could or should be considered.
8. Mr Dooley submitted that I would accept the plaintiff as an honest and credible witness. Even were I to find that the boilermaker positioned himself under the frame to affect the cut to the C-beam contrary to what the defendant's witnesses have described as a safe, sensible and practical position, or even were I to find that for a boilermaker to affect a cut from that position was positively dangerous, he submitted that the plaintiff's account of how the injury was sustained was not inherently improbable, allowing for the reasonable possibility that, for some good reason, the boilermaker saw that position a practical way to affect the cut on the particular C-beam.
9. Mr Dooley submitted that, in any event, the success of the plaintiff's claim would survive a finding that the boilermaker was either not where the plaintiff positioned him, or there was no reasonable likelihood that he was in that position. Although the plaintiff did not concede in his evidence that he might be mistaken as to that detail, Mr Dooley submitted that with the passage of years between 23 January 2007 and the service of the second evidentiary statement in May 2014 the plaintiff may genuinely believe that he has accurately described where he stood relative to where the boilermaker was cutting when he was injured but be simply wrong about it.
10. Mr Dooley submitted that being the case, and consistently with the plaintiff being an honest and credible witness in all other respects, the evidence allowed for a finding that rather than facing the plaintiff from underneath the frame, the boilermaker might have been beside the plaintiff to his right, crouching or kneeling on the on-side of the frame to affect the cut. Allowing for that as a reasonable possibility, Mr Dooley submitted that the balance of the plaintiff's evidence as to how the injury was sustained, including, necessarily, that he was unaware that the C-beam had been cut in the centre, is not simply reasonably possible, but inherently probable.
11. Mr Cavanagh submitted that Mr Dooley should not be permitted in final submissions to "cherry pick" from the evidence the defendant has called to meet the plaintiff's case, as pleaded and particularised, in order to seek to mount the submission that even if the plaintiff's evidence is rejected in significant respects, because he sustained a back injury at some time during the shift on 23 January 2007 the default position is that the defendant should nonetheless be exposed to an adverse finding on liability because of what the plaintiff contends is the risk of harm inherent in the defendant's failure to provide a safe system of work and its failure to properly instruct and supervise him.

Determination

1. Although the plaintiff's report of injury a week after he injured his back as detailed in Dr Mills' clinical notes of 30 January 2007 (set out above at [34]) supports the account of the mechanism of injury he gave in evidence, as do the records maintained by Allmens (set out at [32] above), albeit to a lesser extent, both must be considered in the context of a marked lack of support anywhere in the evidence for the plaintiff's assertion that he made an immediate report of injuring his back to the site supervisor on 23 January 2007 and for a finding that he did not do so to impact adversely on his credibility.
2. I am not persuaded that the plaintiff made an immediate report of having injured his back in the tunnel, or elsewhere at the steelworks during the shift on 23 January 2007, and I am not persuaded that his description of the immediate onset of pain and its sequelae during the balance of the shift should be accepted. Were the plaintiff to have advised Mr De Gori that he was injured in the way he claimed, including that he suffered an immediate and disabling injury, I am satisfied that he would have followed the defendant's workplace protocols which dictate that the injury be noted and that action be taken to address it, including notifying Mr Doyle. Given the terms of the incident report prepared by Mr Doyle the following day, to the effect that he was notified by Mr Harper that the plaintiff had a "stiff lower back on waking", in my assessment the probabilities favour the plaintiff having sustained an injury that was not of the severity described by him in his evidence, whatever its mechanism. However, given his insistence that he was injured and felt its effects immediately, I am left in doubt as to whether he was injured in the way he claimed in his evidence, that issue being the ultimate fact in issue insofar as concerns the preliminary evidential question identified by the parties.
3. Critical aspects of the plaintiff's description of the mechanism of injury are also, in significant respects, contradicted by the evidence called by the defendant in its case. In particular, the defendant's evidence provided no meaningful support for the position the plaintiff ascribes to the boilermaker underneath the frame. In fact, the preponderance of evidence from each of the defendant's witnesses, in my view, positively and persuasively contradicted the plaintiff's evidence on this issue. Their frank and consistently expressed surprise, to the extent of disbelief, that a boilermaker would or would need to position himself underneath the frame (or fit underneath it) satisfies me that aspect of the plaintiff's account of the mechanism of injury should be rejected. (I note that Dr Adams also expressed some incredulity that a boilermaker would position himself underneath the frame to cut the beam.) It follows that I am also unable to accept the plaintiff's evidence that he was asked by the boilermaker to hold the beam from the commencement of the cut through to the final stages of the cut from his position underneath the frame "to avoid it [the beam] falling on him [the boilermaker]".
4. The question is what follows from that finding.
5. Allowing, as I do, for the reasonable possibility that a boilermaker might have called on the plaintiff to assist in holding a C-beam either as it was being cut or in the final stages of the cut, consistent with the work customarily done by trades assistants as part of the system of maintenance work in the tunnel, the preponderance of the evidence demonstrates that there was no risk of a beam "falling on" a boilermaker standing on the on-side of the conveyor and no risk of it dropping or tipping suddenly as it was cut free. Rather, the evidence is that the beam would noticeably sag as the cut progressed across the width of the beam. It follows that from the position the plaintiff says he was standing, relative to a boilermaker on the on-side of the conveyor to the plaintiff's right, the beam would sag progressively to the plaintiff's left. That being the case, and even allowing for error in the way the plaintiff described his position at the C-beam relative to the boilermaker, the likelihood of a sudden and dramatic shift in the weight of the beam as the beam was cut free is not borne out by the evidence, irrespective of whether the plaintiff was unaware that the beam had been severed at its mid-point. That being so, the question whether I am satisfied that the system of work which incorporated the beams being removed in two segments was discussed at the toolbox meeting is not determinative. However, given the plaintiff's presence in the tunnel and his exposure to the system by which the C-beams were removed over at least three hours before he says he injured his back, coupled with the cross-examination extracted at [30(3)] and [30(9)] above, I did not find his evidence that he was ignorant that the beams were cut first at a mid-point persuasive.
6. In the result, I am not satisfied that the preliminary question should be answered in the plaintiff's favour. While I accept he sustained a back injury at some time during the shift on 23 January 2007, I am not persuaded it occurred in the circumstances he describes or that there is any sufficiently compelling variation of those circumstances for me to be satisfied that it probably occurred whilst he was holding a C-beam that was being cut free of the frame of the coke conveyor, unaware that it had been severed at its mid-point. That being so, the defendant's liability in negligence under s 5B(1) of the Civil Liability Act does not fall to be determined.

Orders

1. Accordingly, I make the following orders:
2. Verdict for the defendant.
3. The plaintiff is to pay the defendant's costs on the ordinary basis up to and including 15 August 2012.
4. Costs are to be on an indemnity basis thereafter up to the date of judgment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2015