Smith v Visy Pulp and Paper Pty Ltd [2026] NSWSC 685 | Case summary | Zoe

NSWNSWSC

Smith v Visy Pulp and Paper Pty Ltd

[2026] NSWSC 685

Supreme Court of NSW|2026-06-23|Before: McNaughton J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-06-23

Before

McNaughton J

Catchwords

NEGLIGENCE — personal injury — workplace injury — where plaintiff was an employee of a contractor of occupier — plaintiff’s head collided with a metal pipe that was installed at head height causing injury — whether employer and/or occupier owed plaintiff a duty of care — defendants held to be equally liable — plaintiff held to be contributorily negligent NEGLIGENCE — cross-claims brought by each defendant — claim by employer for indemnity for workers compensation paid NEGLIGENCE — cross-claims brought by each defendant — claim by occupier for contractual indemnity NEGLIGENCE — personal injury — workplace injury — damages — measure of damages

Source

Original judgment source is linked above.

Catchwords

NEGLIGENCE — personal injury — workplace injury — where plaintiff was an employee of a contractor of occupier — plaintiff’s head collided with a metal pipe that was installed at head height causing injury — whether employer and/or occupier owed plaintiff a duty of care — defendants held to be equally liable — plaintiff held to be contributorily negligent NEGLIGENCE — cross-claims brought by each defendant — claim by employer for indemnity for workers compensation paid NEGLIGENCE — cross-claims brought by each defendant — claim by occupier for contractual indemnity NEGLIGENCE — personal injury — workplace injury — damages — measure of damages

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Smith v Visy Pulp and Paper Pty Ltd [2026] NSWSC 685

Hearing dates: 3 – 5, 7 March 2025; 17 - 18 December 2025

Date of orders: 23 June 2026

Decision date: 23 June 2026

Jurisdiction: Common Law

Before: McNaughton J

Decision: (1) Judgment for the plaintiff against the first and second defendants equally with damages to be assessed with a reduction for contributory negligence of 20%. (2) The parties are to confer about final calculations of the plaintiff’s damages and the terms of the final orders, including as to costs, in accordance with my findings. (3) Proposed agreed orders are to be filed within 21 days. (4) Defer entry of judgment until 17 July 2026 (or as otherwise ordered). (5) Grant the parties liberty to apply to alter this timetable and/or seek a hearing for further directions, such liberty to be exercised by notice by email to my associate by 1:00pm on 13 July 2026.

Cases Cited: AEA Constructions Pty Ltd v Wharekawa;; AEA Constructions Pty Ltd v Building Partners Pty Ltd [2019] NSWCA 176
Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135
Coulthurst v Miles [2020] NSWSC 599
Council of the City of Greater Taree v Wells [2010] NSWCA 147
CSR Ltd v Adecco (Australia) Pty Limited [2017] NSWCA 121
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 2014 ALR 349
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82
Dib Group Pty Ltd Trading as Hill & Co v Cole [2009] NSWCA 210
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Erect Safe Scaffolding (Aust) Pty Limited v Sutton (2008) 72 NSWLR 1; [2008] NSWCA 114
Finniss v State of New South Wales [2023] NSWCA 292
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Francis & Ors v Lewis [2003] NSWCA 152
Garzo v Liverpool / Campbelltown Christian School. [2012] NSWCA 151
Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 8
James Hardie & Co Pty Ltd v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267
Laresu Pty Ltd v Clark [2010] NSWCA 180
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Macquarie Pathology Services Pty Ltd v Sullivan; Sullivan v Macquarie Pathology Services Pty Ltd [1995] NSWCA 540
Mead v Kerney [2012] NSWCA 215
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; BIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; [2008] Aust Torts Reports 81-949; (2008) 172 IR 453
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Rava v Logan Wines & Anor [2007] NSWCA 62
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Royal Botanical Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5
Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336; [2010] HCA 37
Shoalhaven City Council v Pender [2013] NSWCA 210
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Stanberg v State of New South Wales [2025] NSWCA 127
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Todd v Alterra at Lloyds Ltd (2016) 239 FCR 12; [2016] FCAFC 15
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166

Mr Wayne John Smith, the plaintiff, claims damages for personal injury suffered on 6 August 2019 when he hit his head on a metal pipe elbow after returning from checking on some workers in the course of his employment at a large paper mill. As a result of the accident, he claims to have injured his neck and continues to suffer from debilitating pain and significant restriction of movement in his neck and arms, as well as psychological injury. He has not worked since 22 November 2019, and his employment was terminated in January 2021. Many issues are in dispute in this case, but there is no dispute that the plaintiff struck his head on a steel elbow of a pipe which protruded at head height, into a walkway at his workplace.
At the time the plaintiff was employed by the second defendant, D.M.E. Engineering Services (Australia) Pty Ltd (DME). The plaintiff had worked for DME for many years. DME had a contract with the first defendant, Visy Pulp and Paper Pty Ltd to provide mechanical and process piping maintenance to the Visy Pulp and Paper Mill in Tumut, New South Wales (the Paper Mill).
As against Visy, the plaintiff claims that as an occupier and operator of the Paper Mill, it owed him a duty of care to protect him from foreseeable risks of injury/harm. As against DME, the plaintiff alleges it breached its non-delegable duty as his employer to prevent injury from foreseeable risks of injury/harm.
The plaintiff alleges that the respective breaches of duty by Visy and DME caused the plaintiff’s neck and psychiatric injuries, and consequently, he has suffered loss and damage, including the complete destruction of his earning capacity.
The defendants contend that there was no breach of duty and that the metal pipe elbow was easily avoided. Further, it is contended that if negligence is found, a finding should also be made that the plaintiff was contributorily negligent.
Visy not only resists the plaintiff’s claims but has also brought a cross-claim against DME including a contractual indemnity claim. DME concedes certain matters (that DME owed a non-delegable duty to the plaintiff and that the plaintiff suffered injury) but disputes that DME was in breach of its duty or at least contends that the primary liability rests with Visy. DME has also brought a cross-claim against Visy, including a claim under s 151Z of the Workers Compensation Act 1987 (NSW) (1987 Act).

The plaintiff gave oral evidence and also relied on his evidentiary statements dated 30 June 2021 and 21 February 2025. Unless indicated, I accept his evidence. I found the plaintiff to be a witness who was doing his best to answer truthfully. He made important concessions and did not appear to be exaggerating his evidence. He was unshaken on the key issues and was unchallenged as to the way the accident happened.
The plaintiff was born in June 1969 and is approximately 176.5cm tall. The plaintiff was a long-standing employee of DME, having been employed by DME since 16 August 2010 as an apprentice boilermaker, after first working with Tumut Metaland as an apprentice. The last 18 months of his apprenticeship were with DME. He had also worked for DME as a truck driver and labourer in about 2005 for less than three years.
In about July 2013, the plaintiff was promoted by DME to the Condition Monitoring Team in an inspection and supervisory role. He was working full-time. His boss at DME was Mick Dixon. Prior to the subject accident, the plaintiff had intermittently used analgesics following an earlier back injury in 2002. At one point, he had a spinal stimulator, but this was removed in April 2019. In 2013, Visy introduced a drug testing policy and the plaintiff was required to report his medication use. From about this time, he perceived a strain on his working relationship with Mr Dixon. This perception is supported at certain points by some of the contemporaneous business records including medical records tendered before me.
The plaintiff’s role at the time of the accident included conducting inspections of the industrial machinery and supervising its maintenance during planned shutdowns of the Paper Mill. The industrial and inspection work involved him walking around the Paper Mill and inspecting all the machines. He needed to climb to heights, move through tight spaces and navigate various obstacles to inspect all parts of the machinery. The plaintiff was required to, and did, wear a hard hat at all times.
On 6 August 2019, the plaintiff was working at the Paper Mill. Tuesday, 6 August 2019 was one of the days on which the Paper Mill was routinely shut down for maintenance and inspection. A repair team was working in a large room (the VP9 area of the Paper Mill), full of bulky machinery, fixing a faulty drive shaft on a particular motor of Paper Machine 9. This particular repair was located between a motor and a power box, which I will refer to as “the work location”. The room where Paper Machine 9 was located had only one entry and exit point. There was no direct line of sight or passage between the entrance point and the work location.
The plaintiff attended the VP9 area at about 10:30am to check his repair team’s work on Paper Machine 9. He entered the room and started walking towards the motor under repair, which was located on the other side of the room to the entrance point. In order to reach his staff in the far left corner, the plaintiff had to travel along a walkway alongside the northern wall which involved him passing a blue motor (which was on his left) between the end of which and the wall was a 61cm passage. As he came to the far or distal end of the blue motor the plaintiff leaned to the left, over the blue motor, to avoid hitting his head on the metal pipe elbow which was protruding from the wall over the walkway.
On prior occasions, the plaintiff had attended the VP9 area on an inspection day, not a shutdown day. Inspection day work required him to attend to and check five motors in this room. This meant that on prior occasions he continued along the walkway adjacent to the northern wall to complete his inspection work. When returning from taking this path, he could see the metal pipe on his way out, and he did not have to be concerned about his footing. He could weave around the blue motor around the pipe, leaning over the blue motor to his right. That is, on prior occasions, on an inspection day, he returned with the northern wall on his left, with the pipe running along the northern wall also on his left, and with no sudden protrusion.
It was agreed, by way of an agreed facts document tendered on 7 March 2025 (notably tendered after the plaintiff, and the Visy witnesses (Mr Grant Crosley, Mr Troy Watling and Mr John Medland) had given evidence), that at the time of the accident, the bottom of the metal pipe (with a diameter of 300mm), was positioned 1700mm above floor level. It was further agreed that the outmost edge of the metal pipe elbow (which, on or about 11 December 2019, was relocated to a position 2300mm above floor level) protruded 600-610mm from the flange to which it was attached on the end of the pipe segment that penetrated the wall. Further, it was agreed that the width of the passage between the attachments to the wall and the end of the blue motor (on the other side of the walkway) was 610mm. It was also agreed that the hard hat worn by the plaintiff at the time of the accident had a front peak or rim that was approximately 30mm above the level of his eyes and extended approximately 50mm in front of his eyes.
The plaintiff stated:

Ms Smith provided a written statement dated 3 March 2025. That statement was obtained during the course of the first week of the hearing and in part was the reason that the hearing could not be completed in the original hearing week.
Ms Smith stated that she and the plaintiff were married in March 1992 and have three adult children together: Mitchell born in February 1996, Benjamin born in October 1997 and Michaela born in September 1999. She and the plaintiff were happily married for 30 years. She said they had had their ups and downs but since the neck injury the plaintiff had changed considerably. She and the plaintiff had now separated although they both lived in the family home. They lived separate lives and slept in separate rooms. He sometimes spent nights at their son’s house.
Prior to the injury, the plaintiff was an active person, motivated by his career and he loved working. Despite having a lower back injury and lower back pain for many years he was not restricted in any way. She did not observe him to be restricted in his day-to-day activities such as completing his domestic tasks and engaging in social and recreational activities. Prior to his neck injury the plaintiff completed outdoor domestic tasks, such as mowing the lawn and he performed overall maintenance on their property. In her written statement, Ms Smith stated that he was also responsible for taking the garbage out, vacuuming, lawn maintenance, washing the floors and cleaning the house. They shared the cooking and the household domestic tasks.
They originally lived on 10 acres of land, of which the yard was around 2 to 3 acres. The plaintiff was responsible for the maintenance and upkeep of the land. She stated that “after [the plaintiff’s] neck injury, we were required to sell 5 acres of the land as we were unable to keep up with its maintenance”.
On the evening of 6 August 2019, the plaintiff told Ms Smith that he had hit his head on a pipe while wearing a hard hat at work and had pain in his neck and right arm. She stated that over the next week or so his complaints of neck and arm pain increased and within a couple of weeks she noticed that one of his shoulders had visibly dropped lower than the other. She believed that the reason he continued to work for a short period after the injury was that he enjoyed supporting their family, took pride in his work and could not accept that the extent of his injury would cause him to stop working.
“Immediately” after the neck injury, the plaintiff was unable to perform most domestic activities without support and Ms Smith was required to assume more domestic duties. She took over the garbage duties and took the bins down the driveway for collections. She was also required to organise the plaintiff’s meals, general cleaning, making the beds and shopping. Eventually, they had a weekly cleaner, and a gardener every few weeks through workers compensation.
Ms Smith stated that after the plaintiff’s cervical spine procedure in early 2020, she provided him with additional assistance including personal care assistance, emotional support and transport assistance. She estimated that she assisted him for about two to three hours each week and frequently took time off her work to assist him. Ms Smith stated that she currently performs duties including cooking, laundry, making the bed and grocery shopping.
Ms Smith or another family member or close friend continue to take the plaintiff to some of his medical appointments. Whilst he sometimes goes alone to local appointments, anything out of town normally requires a family member to be with him.
Ms Smith then outlined that she had been in a motor vehicle accident in July 2009 and suffered significant injuries to her ankles, such that she has never been able to assist the plaintiff completely. She said that the plaintiff’s workers compensation insurer provides cleaning services to assist in some domestic chores and provides lawn maintenance services. She opined that “[i]t isn’t much and it isn’t nearly enough. He will require a lot more assistance”.
Ms Smith stated that the plaintiff’s mental and physical health have deteriorated significantly after the accident, and she has often seen him struggling and has noticed a decline in his emotional wellbeing. He is sad and sometimes angry. He continues to complain of neck pain and sometimes pain in the arms.
Ms Smith then stated there were long periods where the plaintiff was sleeping most of the day, only awake for five to seven hours a day, and had no motivation. He also went through a period of paranoia which was unlike him, and he was very depressed. She stated this went on for 18 months or so, and they started drifting apart. She stated:

Ms Smith was cross-examined by Senior Counsel for Visy. She said that there were ups and downs in the marriage but before 2019 everything was fine.
Ms Smith was not aware that the plaintiff had discussed with his general practitioner in January 2019 the prospect of having an affair. She was aware that he had talked about a reversal of his vasectomy, and agreed it was definitely not to have more children with her.
She agreed that at times between the back accident in the early 2000s and the accident on 6 August 2019, he needed assistance in activities of daily living such as gardening, mowing the lawns, “whipper-snippering” [sic], cutting firewood and moving firewood, but that it depended, and some days he was better than others. She agreed that his pain never went away, but that before the accident he always worked and never had time off work because of the back pain.
When asked about the situation with her husband’s lower back at the moment, Ms Smith said she was not sure, as they were separated, and they don’t talk about personal matters. She was only aware he was on pain medication. She was aware that he received cortisone injections and had an implant that Dr Brett Todhunter wanted him to trial for his back pain.
The same applied in relation to her knowledge about her husband’s neck, and what medication he had been taking since they separated in 2022.
She was asked about the plaintiff’s ability to do work around the house and the yard after the accident, and she stated that he said he could not make a bed as he could not hold his neck up, and he could not do the big shopping.
Senior Counsel for Visy suggested that Ms Smith may have mixed up the timeline. She could not remember if he could not hold his neck up in the first month after the accident, but said in the second month he definitely started to complain about things and in the third month “it was a downhill spiral after that”. She said she could not recall completely about the second month as it was so long ago.
When asked about the death threat the plaintiff had received, she agreed that it involved his work at DME. She also stated that he was paranoid all the time and that had not resolved. She stated that he “still to this day … reckons he’s being watched and different things, and it’s like - I say he’s got, like, a split personality. He’d come home each day and you wouldn’t know what personality or what person he’d be in the end”.
As to cooking, Ms Smith stated that before the accident she did the cooking but that he would “help a bit”, but afterwards, she would do more, “because he was just on the lounge”. Ms Smith then modified her answer when it was put to her that it was not consistent with what the plaintiff had told Dr Adams in September 2020 that he was the one who did most of the cooking (at that point he was living with his wife). Ms Smith then stated that they “probably shared - like, I worked away a lot with work. Probably shared, at times, cooking, but I probably did most of it”. As to whether he was doing “most” of the cooking after the accident, she replied “I wouldn’t say he was doing most of it, no”.
Ms Smith was then cross-examined about her own physical problems. She agreed she had problems with her legs which will not change as she has a fused ankle. When it was suggested the plaintiff “is quite capable of doing particularly the lighter domestic duties around the house” she replied, “[h]e can do some things, but it depends on him on the day”. She agreed he could go shopping to get “two or three things, but not the big loads of shopping”.
Ms Smith said she was not sure if he was capable of making a bed, and that she makes them. When asked if he was “quite capable of, for example, sweeping, vacuuming, doing things like that around the house” she replied “I think so, yep”. She stated, however, that using the ride-on mower on the two-acre block was “too rough”.
She confirmed that the property as a whole was 5 acres, and that it was originally 10. They sold 5 acres 2 or 3 years ago following their neighbour approaching them to use the land for roughly $50,000.
Ms Smith stated that just prior to the neck injury, she and the plaintiff would do what they could together, although someone would come in once a week to do the floors. Sometimes the plaintiff would do them, if needed.
As to the land they sold, prior to the accident, the plaintiff would chop out the weeds and spray it, but at around the time of selling the land “we just couldn’t look after it … with weeds and spraying and that. We were having to pay someone to come and do those things”.

Ms Cooper said she had taken the plaintiff to many medical appointments and had also helped him by taking him to the shops, for slow short walks every few days, and visits to help with basic domestic chores. Her intentions of visiting him are “mostly for the purposes of spending time together and ensuring his mental state is stable”. She shares a meal with the plaintiff at least once a week.
As to maintenance of the property, she says the plaintiff cannot do it and it has become run down. Ms Cooper thinks the workers compensation provides him some gardening and lawn assistance, but it is not much and does not cover the whole property. She stated that the plaintiff used to take care of the property before the accident.
Ms Cooper says although the plaintiff’s injury occurred some time ago, “there is yet to be any substantial progress in the management and treatment of his physical and mental symptoms”. She set out her worry about the plaintiff saying “[y]ou can tell he isn’t well but he is trying to put on a brave face and push through each day”.
In cross-examination, Ms Cooper agreed that in August 2019 she was 19 or 20 years old. She said that prior to August 2019 the plaintiff “used to just do everything, like around the house and that, and then all of a sudden that just stopped”. Ms Cooper said that he did not really talk to her about having a bad back. She was aware of it when she was growing up and knew that he had a couple of injections. She agreed that she was aware at one point that he had a stimulator surgically put into his spine, but she was not aware he was taking large amounts of medication. She would see him take medication but had no idea what it was for. Prior to August 2019, she never went to the doctors with the plaintiff.
Ms Cooper was aware that in late October 2019 DME took him out of the Paper Mill and wanted him to work in the workshop in town. She was unaware that that the plaintiff refused to work in the workshop. She was also aware that he had received a death threat as he told her mother and herself. He did not tell her that at that time he was being subjected to harassment and bullying at DME. Ms Cooper said that the death threat “affected him for a second, but not for long, because it wasn’t anything that happened”. She did not notice him starting to get paranoid.
As to the proposition that she had noticed him from that point on up until the present time continuing to be paranoid, she replied “[d]ue to his pain, yes”. Ms Cooper said she sometimes observed him to be paranoid “since his injury”.
When asked about her observations of him in the period between August 2019 and November 2019 she stated “[s]orry, I can’t recall”. She believed he was working at that point of time. She stated that he struggled with putting dishes in the dishwasher between August and November 2019, stating “[s]o he’d get home and just sleep pretty much”. In answer to a question as to when he stopped doing things, Ms Cooper stated “[s]o pretty much once that injury happened, even though he was going to work, we started doing most things”.
There was then the following exchange:

Mr Watling provided a statement dated 7 November 2024 and was called to give evidence on 5 March 2025. Except where indicated, I accept his evidence. He has been employed by Visy for 11 years and works at the Paper Mill. For the last 10 years, he has been an area repairs and maintenance manager for Visy. His role involves looking after the maintenance function of a section of the Paper Mill, including the area in question.
He said that DME carries out the mechanical maintenance work at the Paper Mill. He stated there are approximately 40 to 45 DME employees working at the Paper Mill and they carry out work which relates to the inspection, maintenance and repair of the mechanical services (machines and the like) at the Paper Mill. DME is the primary contractor for work which relates to the mechanical services at the Paper Mill. Visy does not carry out any of the physical work in relation to these mechanical services. All the physical work that is undertaken by DME is supervised by DME supervisors.
Mr Watling said the plaintiff was employed by DME in a rounds inspection role which involved checking the various mechanical equipment at the Paper Mill. During a shutdown at the Paper Mill, the plaintiff would have undertaken a supervisory or team leader role. Visy undertakes an annual two-week shutdown in addition to a monthly 12-hour shutdown. During a shutdown production ceases at the Paper Mill while vital maintenance work is undertaken on the machines as and where required.
Having reviewed “Visy’s records which relate to the pipe”, Mr Watling provided the following information.
Visy Work Orders (Work Order) are raised for a fault, defect or repair which has been identified by the relevant contractor or Visy employee. Any contractor or Visy employee can raise a Work Order. Each morning a meeting takes place to “vet” and allocate the work orders. If the work order relates to a mechanical issue, the work order is allocated to DME to undertake. DME and/or the relevant contractor undertakes the work in the allocated order and marks the work as complete. Any work which does not require technical input from a Visy engineer is scoped and undertaken by DME.
Around 22 May 2012, a Work Order was raised by Peter Johnson. He was a supervisor employed by Visy’s electrical contractors at the Mill. A description of the fault identified by Mr Johnson was visible damage to a system blower fan. The Work Order shows that the replacement of the suction fan was scheduled to take place on 13 September 2012 and was completed on 14 November 2012; the replacement of the suction fan was directed to the mechanical department at the Paper Mill, which was DME, and the plaintiff was the work leader and was in charge of the replacement of the suction fan.
On 13 April 2017, a Work Order was generated by Shannon King, a supervisor then (but no longer) employed by DME and who worked at the Paper Mill. The Work Order was directed to the mechanical department, being DME, and the work leader was another then-employee of DME, Ben Chalmers. Yet another employee of DME undertook the work specified by the Work Order, Kanthkumar Chandrashekar. The work was scheduled for 5 May 2017. The nature of the work was to replace the existing ductwork with a stainless-steel elbow which prevented the “kink” in the ductwork and also provided a gradual change in the ductwork, avoiding issues with air intake restriction. As the work did not involve any technical issues requiring engineering input by Visy, specifications were not provided to DME by Visy. There was no need for detailed designs or drawings, and Visy had no “specific input” into who would undertake the job. No further work was taken on the pipe prior to the accident on 6 August 2019.
Following the plaintiff’s accident, on 18 September 2019 Mr Watling created Work Order 502895 to raise the pipe. This was again allocated to the mechanical department, DME, and was completed on or around 11 December 2019. It was raised to be around 2.3mfrom the floor level.
Importantly, Mr Watling agreed that the Paper Mill was Visy’s plant, its premises, its machines, its infrastructure, that Visy’s system of work informed and controlled those premises, and that the ultimate responsibility for the safety of the premises of those who work within it was that of Visy.
Mr Watling conceded in cross-examination that the metal pipe “was definitely within the confines of the walkway itself” and “it was between the motor and the wall” at the time the plaintiff was injured. Mr Watling also agreed that if it did protrude 610mm from the wall, it would present a safety hazard for anyone using the walkway, albeit he initially claimed that he had “never considered it to be a hazard”, and that “it was so obvious and easy to avoid that it had never crossed my mind that it was a hazard”. He further initially claimed he did not have to duck to get around it.
Mr Watling is 180cm tall and said he had walked past the pipe on hundreds of occasions between 5 May 2017 and 7 August 2019.
Mr Watling said he checked the Visy records and there was no record of any complaints from Visy employees or other contractors about the height and/or location of the pipe, nor had anyone ever complained to him. Hundreds of workers attend and had attended that area since the pipe was originally installed.
Mr Watling said that DME had a health and safety officer who attended the Paper Mill to carry out safety audits and that “Visy encouraged its contractors to carry out safety audits of the [Paper] Mill”. Ms Davis, had never raised with Visy that the Pipe was or could be a potential hazard, nor had anyone else from DME.
Included in the Visy paperwork produced by Mr Watling, was Work Order 502895 headed “Move Duct and Pipe Support Behind Motor” which stated as the “Fault Description”:

Mr Crosley provided a statement dated 13 November 2024 and was called to give evidence on 5 March 2025. Mr Crosley was employed by Visy at the Paper Mill between 2011 and 2021. Except where indicated, I accept his evidence.
In 2012, DME was providing Visy with mechanical maintenance services pursuant to a mechanical services agreement. That agreement was replaced by a Contract dated 4 December 2013 titled “Services Agreement: Tumut Mechanical and Process Piping Maintenance between Visy and DME”. The contract was extended for 3 years to 28 February 2020 by an Addendum dated 28 July 2017. Mr Crosley witnessed both documents. Those documents were tendered. The 2017 document was in force as at 6 August 2019 (the 2017 agreement).
DME did not provide labour services to Visy, rather, DME was appointed Visy’s mechanical maintenance contractor. There were other maintenance contractors as well, although DME was the only mechanical maintenance contractor. Visy had Service Agreements with other companies for specialised maintenance work at the Paper Mill including a company which provided all electrical and instrument maintenance services; a company which provided equipment lubrication services and a company which provided general and industrial cleaning services.
DME’s work under the Contract included the inspection of plant, preventative maintenance, corrective maintenance, emergency work, improvements and modifications, on-call breakdown support and mechanical maintenance work. DME had their own supervisors and planners, would prepare the work method, complete the Job Safety Analysis, obtain the permits for the work, undertake Toolbox Talks and supervise themselves.
Visy would set the priority of the work with DME, but the work was planned, executed and supervised by DME. Visy’s engineers would provide technical guidance if required.
Ms Davis was present at the Paper Mill on an almost daily basis. The day-to-day safety of DME’s work was undertaken by its supervisors and leading hands.
Visy also had its own OHS officers who were on site full time. Visy’s OHS officers took care of all aspects of work health and safety for the site, making observations, doing audits on job risks, looking for paperwork, reviewing corrective actions that were applied when hazards or risks were identified. They were “ever-present”. Their main role was to make sure that the work health safety regulations and the work health safety management plan from Visy was applied and audited on a continuous basis.
Mr Crosley was shown a photograph (attached to his statement) of what purported to be the general area of the accident. He could not, however, give precise evidence about the photo: he did not know when the photo was taken nor precisely what it was meant to represent. By reference to that photo, he claimed that the space behind the blue motor and near the pipe was easily avoided by workers moving in that area. Further, whilst at one point in his evidence he said he was familiar with the area of the accident and had been there himself many times, in cross-examination he was shown a photograph of the pipe in the elevated position (page 98 of Exhibit C) and he said he had not seen the pipe in the elevated position depicted in that photograph. That answer did not align with his evidence in chief, where he said he was very familiar with the area of the accident, he had been there many times, and he was there “before, during and after”. Further, Mr Crosley did not have direct knowledge of the accident involving the plaintiff but was aware of it from the Visy safety management system, where it was raised in the Vault recording system.
In light of those matters, I place little weight on Mr Crosley’s evidence as it relates to the precise area where the accident occurred. I also note that Mr Crosley is 183cm or around 6ft tall. I do not accept that he would have found the pipe easy to avoid. Further, there was no evidence that Mr Crosley ever approached the pipe from the position the plaintiff approached it just prior to the accident.

As noted, the plaintiff’s recollection was that until some months prior to the accident, the pipe was a flexible plastic pipe with no rigid elbow protruding into the walkway. A picture of this flexible plastic pipe was tendered, and this supports the plaintiff’s recollection as to the existence and appearance of the plastic pipe (although not the timing). It is also noted that the plaintiff was the work leader on the job which installed this flexible plastic pipe on the fan outlet in about November 2012. I accept that this flexible plastic pipe did not protrude into the walkway to the same extent as did the metal pipe, as it was more flexible and “it just turned and went up”. It could bend more acutely and was soft.
I accept that the documentary evidence shows that the flexible pipe was replaced with the rigid metal pipe in May 2017. Although the plaintiff erroneously thought the rigid metal pipe had only been there “for about six months”, as I observed earlier, nothing turns on this.
Even though the soft, flexible, plastic pipe was replaced by a hard metal pipe which obstructed the walkway at head height, the evidence shows, and I find, that neither Visy nor DME undertook a risk assessment from when the metal pipe was installed to the time of the accident.
Precisely at which point, relative to the blue motor, the metal pipe elbow protruded into the walkway was not the subject of any agreement, but a number of photos were tendered, taken from different angles, some at different times. In particular, I note these included:
Annexure B to the plaintiff’s first evidentiary statement (Exhibit A) which shows the original position of the metal pipe, and depicts the outer edge of the metal pipe protruding past the edge of the blue motor;
Exhibit W which shows the metal pipe in its original position;
Annexure C to the statement of Mr Crosley (Exhibit V2) which shows the metal pipe in its original position;
Exhibit E and Exhibit K which show the metal pipe after it was elevated, above, but still in line with the original position; and
Exhibit L which includes photos with the metal pipe with red and white ribbon tied to it (post-accident).
I have considered these and other photos carefully in light of the oral evidence. I am satisfied on the balance of probabilities that the original position of the metal pipe elbow was at about the height of the plaintiff’s head, such that it protruded into the walkway at a point close enough to the western distal edge of the blue motor that a person of about the plaintiff’s height or taller would need to bend to one side to avoid it as they went past the western distal edge of the motor. I reject the evidence of the Visy witnesses to the extent that any of them suggested no such accommodation needed to be made.

The plaintiff contends that it was foreseeable that there was a risk that the plaintiff would suffer injury from his head colliding with the metal pipe. The plaintiff in particular points to the following factors:
There was only one entry/exit point from which to access the machines for inspection in the relevant area of VP9;
The entry/exit point was from a walkway which, at its narrowest between the edge of the blue motor and attachments to the north wall was 610mm;
At the distal end of the motor, a metal pipe protruded into the walkway;
The outermost edge of the metal pipe protruded 600-610mm from the flange to which it was attached on the end of the pipe segment that penetrated the northern wall;
The bottom of the steel pipe was positioned 1.7m above floor level;
DME installed the metal pipe in this position with the permission of Visy subject to their supervision;
The dangerous position of the metal pipe had been pointed out to Ms Davis prior to the accident involving the plaintiff, earlier that day;
The plaintiff ‘s height was 176.5cm;
There were trip hazards on the floor the plaintiff had to walk along in order to access the exit point from the work location;
It was known that workers, including the plaintiff, used the relevant walkway to access the area behind the motor; and
It was known (and required) by both defendants that workers, including the plaintiff, wear a hard hat with a peak out in front.
The plaintiff submits that it was clearly foreseeable that a metal pipe, installed at head height, protruding into a walkway, also littered with trip hazards, would present a risk for a person using the walkway that they would hit their head and suffer injury.
DME submits that there is no dispute that the plaintiff knew the pipe was there. The plaintiff did not assert he was rushing, tired or suffering a repetitive fatigue from work pressures. There is no evidence that the plaintiff was incapable of glancing up and down to ensure his own safety. DME further submits that the reasonable expectation of the employer was that the plaintiff would be aware of and take appropriate precautions in respect of any plant or equipment “particularly where that same area had been the subject of his work duties for some months without giving rise to any injury”.
I find that DME had a duty to take reasonable care to ensure that the areas of the Paper Mill where its workers, including the plaintiff, were performing their duties were free from hazards that could give rise to a reasonably foreseeable risk of injury. The presence of a metal pipe protruding into a walkway, at head height, without any form of warning or differentiation, represented a reasonably foreseeable risk of injury and was self-evidently dangerous. On the basis of the matters set out by the plaintiff at [157] above, I find that it was reasonably foreseeable that there was a risk that the plaintiff would suffer injury from his head colliding with the metal pipe.

The plaintiff submits, and I accept, that the National Construction Code and the AS 1657 and AS 1470 (the Australian Standards) provide a clear indication that DME (and Visy) should have had a proactive (rather than a reactive) approach to hazards in the workplace in order to ensure the health and safety of persons in the workplace, including safety audits and risk assessments. This also accords with common sense. However, the point only goes so far. I accept that breaches of regulations and standards do not automatically mean that there has been a breach of duty of care.
Perhaps more importantly, as noted above at [110], DME had a safety officer on site, Ms Davis, who was there on an almost daily basis.
As noted, Ms Davis was not called to give evidence by DME or Visy, and there was no explanation offered in relation to her absence. The plaintiff asked the Court to draw an inference that her evidence would not have assisted either DME or Visy pursuant to the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8*.* That rule is that the “unexplained failure by a party … to call witnesses … may (not must) in appropriate circumstances lead to an inference that the uncalled evidence … would not have assisted that party’s case”: LexisNexis, Cross on Evidence (online as at 2026) at par 1215.
As to whether such an inference should be drawn, I note that there are three conditions to be applied: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; and thirdly, whether his or her absence is unexplained: RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[96].
If those conditions are satisfied, then as discussed at [79] of Ianni, the inference may be drawn that the evidence would not have helped the party’s case. That inference may then be used in two ways. Firstly, in deciding whether to accept any particular evidence given, either for or against that party, which relates to a matter about which the person not called as a witness could have spoken. Secondly, in deciding whether or not to draw inferences of fact, which are open in relation to matters about which that person could have spoken.
I find that I would expect, at least DME, who employs Ms Davis, if not Visy, to call her for a number of reasons: her role as safety officer, her presence around the time of the accident, and her role touching on the management of the plaintiff’s work following the accident. Her evidence would have elucidated these matters, and her absence is unexplained. I infer her evidence would have assisted neither DME nor Visy. I agree with the plaintiff’s submission that Ms Davis ought to have recognised, if she were undertaking her role in a proactive rather than reactive sense, well before the accident on 6 August 2019, that the metal pipe represented a hazard.
DME does not contest that the plaintiff suffered injury but contests it occurred when he followed a negligent system of work instituted by the employer. Rather, DME argued that it was the configuration of the plant that was causative of injury and this, was under the “direct and exclusive control” of Visy. Further, DME contended that if the pipe configuration was found by the Court to be a hazard, the primary liability rests with Visy. In support of that contention DME points to the evidence of Mr Watling at [86] above.
Whilst I accept that DME installed the metal pipe in this position with Visy’s knowledge and approval, having considered the evidence and the submissions, and taking into account the failure to call Ms Davis, I find that, acting reasonably, and prior to the plaintiff’s collision with the metal pipe, DME could have and should have (at least) not installed the metal pipe in its hazardous location; proactively recognised that the installation of the metal pipe in its location represented a hazard to workers using the walkway to access that area; and arranged for the metal pipe to be relocated to a height of at least 2,000mm in accordance with AS 1657. I agree with the plaintiff’s submissions that none of those measures were expensive or complicated. That these steps were simple to undertake can be seen from the action to raise the pipe in December 2019. Each of these straightforward measures were within the authority and ability of DME to initiate and perform, subject to the vetting and prioritisation of Visy. I agree with the plaintiff’s contention that if DME had taken these simple and reasonable measures, the plaintiff would have avoided injuring his neck and the consequential psychiatric injuries.

The plaintiff contends that on the facts of this case, Visy created the risk of injury. Further, on the evidence of this case, the ultimate responsibility to carry out a risk assessment of the Paper Mill and to make it safe, including when the metal pipe was originally installed, belonged to Visy*.* This can be contrasted to the situation in Brodribb where it was held that the particular activity in question there was organised, and its operation was in the hands of independent contractors, and liability was borne by them within the area of their responsibility.
The plaintiff pointed to the evidence of Mr Watling where he accepted that “the ultimate responsibility for the safety of the premises for those who work within it, is that of Visy”.
The plaintiff contended that there could be no doubt that Visy owed the plaintiff a relevant duty of care, and that the duty owed by Visy was co-extensive with that of DME. The plaintiff submitted that whilst he was not an employee of Visy, he worked on its premises at the Paper Mill and had done so since about 2010. He was on Visy’s premises as both a worker and an invitee. It was argued that Visy owed the plaintiff a duty of care to act reasonably to prevent the risk of injury. Further, its duty was informed by its statutory obligations under the WHS Act and the WHS Regulation*.*
Visy submitted that the 2017 agreement showed that DME had agreed to provide mechanical and process piping maintenance services at the Paper Mill in a “proper, safe, expeditious and workmanlike manner exercising all reasonable care and skill”. In short, Visy contended that it had “delegated” the services at the Paper Mill to a competent mechanical maintenance contractor, DME. In oral argument, Senior Counsel for Visy contended: “Just on the face of the documents, DME has issued a work order to itself to perform a repair”.
Visy submitted that on the basis of the plaintiff’s evidence that he would go past the particular pipe at least once a month, in the 27 months between its construction and the accident, the plaintiff would have passed it on at least 54 occasions without problem or complaint. Further, the plaintiff’s job included identifying and reporting faults at the Paper Mill and he had not reported the pipe as an issue. Further statistics regarding the number of times others passed the pipe were provided by Visy which numbered into the hundreds, with no complaints recorded. Visy pointed to Mr Watling’s evidence that Visy encouraged its contractors to carry out safety audits of the Paper Mill. Further, DME had its own safety officer.
Visy referred to McColl JA’s formulation of the relevant duty of care in Shoalhaven City Council v Pender [2013] NSWCA 210 at [48]:

The plaintiff repeated his submissions advanced in relation to DME and foreseeability. He further noted that Visy was ultimately responsible for the infrastructure and its configuration within its Paper Mill and was, or ought to have been, aware of the applicable Australian Standards and National Construction Code which applied to the Paper Mill.
The plaintiff pointed to the evidence of Mr Medland who agreed that it was “of critical importance that workplaces be kept safe for those who have to work there”; part of that involved complying with various statutory obligations in terms of the width of passageways and ensuring safe access. One of the ways these obligations are made easier to discharge for employers and people who run places of work is through standards, regulations and building codes. As the owner and controller of the Paper Mill, responsibility for the safety of the premises and its plant and equipment was ultimately that of Visy; and it was important, as the controller of premises where work is undertaken, that there be compliance with those standards, regulations and codes which specify the way in which premises are set out to ensure the safety of workers.
The plaintiff also relied on the evidence of Mr Watling, the person responsible for identifying and rectifying risks to health and safety in the relevant area, who gave evidence to like effect. As noted, he testified that Visy was responsible for identifying and rectifying risks to health and safety in the relevant area, and that Visy was required to comply with relevant standards and ordinances.
The plaintiff submitted that the existence and applicability of the relevant standards and codes prove that it was reasonably foreseeable to Visy that there was a risk of injury to workers on its premises, including the plaintiff, if they were not complied with.
Visy contended that the risk of a worker bumping his head on the pipe elbow was unforeseeable and insignificant. Visy pointed to the absence of prior complaints or accidents; that the plaintiff was a skilled workman; and that he had navigated past the pipe elbow on at least 54 occasions and had not reported any problem. Given that experience, Visy contended that it could not be reasonably foreseeable that the plaintiff would hit his head on the pipe elbow because Visy was entitled to assume that he would identify any risk of doing so and take measures to prevent that risk from arising if he did (citing Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [72]).
I am of the view that it was foreseeable (that is, it was a risk of which Visy knew or ought to have known) that a metal pipe, installed at head height, protruding into a walkway, also littered with trip hazards, would present a risk for a person using the walkway, wearing a hard hat with a rim, that they would hit their head and suffer injury. The breach of relevant standards and codes assists in informing that question. I note that the lack of evidence of prior serious accidents, although relevant, is not determinative: Francis & Ors v Lewis [2003] NSWCA 152 at [57]; Finniss v State of New South Wales [2023] NSWCA 292 at [35]. I also note, however, the evidence which showed that Ms Davis had been alerted to the risk prior to the accident. Further, perhaps the most critical aspect of the evidence, which was not acknowledged by Visy, was that the accident on 6 August 2019 occurred when the plaintiff was approaching the pipe from an unfamiliar direction, looking down to prevent himself from tripping on hazards, and it was in that context that he inadvertently did not see the metal pipe at head height, above his visor.

The plaintiff noted that Mr Crosley went further in his oral evidence stating that DME’s safety officers’ role included “[taking] care of all aspects of work health and safety for the site based on what the responsibilities are for Visy Pulp and Paper. … Their main role is really to make sure that the work health safety regulations and the work health safety management plan from Visy was applied and audited on a continuous basis”. (Emphasis added.)
Mr Crosley’s evidence, moreover, did not accord with Mr Watling’s account. As noted above, Mr Watling explained Visy’s system which led to the installing of the metal pipe prior to 2019 to the effect that anyone at the Paper Mill could create a work order. DME were not the only contractors at the Paper Mill, but there were others, including an electrical contractor, a lubrication contractor and a cleaning contractor. Work orders were vetted each morning with Visy together with the production, mechanical and electrical teams involved (but no safety people were present). At those meetings, Mr Watling stated that Visy had “[a] lot of people, so production managers, area engineers, both electrical and mechanical, and obviously the DME and PHE people as well”. And, as noted above at [86], Mr Watling stated that Visy had the ultimate responsibility for the safety of the premises for those who work within it.
The plaintiff pointed to the lack of any risk assessment performed when the metal pipe was installed, and contended that given the significant risk of injury, one should have been performed. The plaintiff noted that the work order for the installation of the metal pipe did not indicate that the pipe was to be made of metal, nor that it was to be installed below 2300mm (or even 2000mm) from ground level.
The plaintiff also pointed to the frailties in Mr Watling’s claim that Visy was very “safety conscious”, noting that Visy had failed to carry out any safety or risk assessment, there was no system of ensuring compliance with applicable standards and ordinances, there was no safety officer involved in vetting the work orders, and that it took four months to rectify the height of the pipe following the plaintiff’s accident.
The plaintiff contended that Mr Watling’s evidence showed that Visy’s role in health and safety was purely reactionary and perfunctory and that Visy was essentially hiding behind its contractors. The plaintiff submitted that had a risk assessment been completed prior to installation, it would have been obvious that installing a metal pipe protruding approximately 600-610mm into a walkway at head height presented a risk of injury and would not have been installed at that height. It should have been installed well above head height. Further the plaintiff contended that it was inconceivable that Mr Watling and others did not notice the danger, having professed to have been in the area on many occasions. Acting reasonably, Mr Watling would have noticed that the metal pipe, at head height and protruding into the walkway, presented a risk of injury. Mr Watling agreed that it was an “obvious” solution to move the pipe well above head height.
Section 5B(2) provides that (amongst other things) the factors set out at (a)-(d) should be taken into account in determining the s 5B(1)(c) criterion.
As to (a) “the probability that the harm would occur if care were not taken”, the plaintiff submitted there was a high probability that a collision would occur. The walkway was the only means of access to the machines and motors in VP9. The area around the walkway had a number of other hazards, including around the base of the motor near the corner. The plaintiff submitted it was likely that someone taking reasonable care to look around whilst moving through the walkway, including with a hard hat on which limited visibility above eye level, would strike the metal pipe, particularly when approaching the metal pipe from behind the motor as the plaintiff did on 6 August 2019.
As to s 5B(2)(b), “the likely seriousness of the harm”, the plaintiff submitted that a collision to the head can have serious deleterious consequences, which is established by the fact of the plaintiff’s significant and life changing injuries.
Section 5B(2)(c) requires consideration of the “the burden of taking precautions to avoid the risk of harm”. The plaintiff noted Mr Watling’s agreement to the propositions that raising the height of the metal pipe “was a very simple matter for Visy”, and that there was “absolutely no reason why that couldn’t have been done at any time prior to 2019”. Further, he agreed that it would have been a much safer workplace for those using the relevant walkway if the pipe had been installed at 2300mm before 2019. The plaintiff contended that installing it at a higher point or moving it higher following the identification of the hazard imposed no significant burden on Visy.
Finally, s 5B(2)(d) requires consideration of “the social utility of the activity that creates the risk of harm”. The activity that created a risk of harm was the plaintiff walking along the only available walkway whilst performing his duties at the Paper Mill. The plaintiff contends there is no issue as to this consideration.
Moving to s 5C, the plaintiff contended that nothing in that section would negate a finding that a reasonable person in the position of Visy would have taken the precautions.
For those reasons, the plaintiff submitted that Visy breached its duty of care to the plaintiff, and that if Visy had taken the simple steps identified above, the plaintiff would not have suffered the injuries he did: s 5D of the CLA.
Visy contended that it did not owe a duty of care to the plaintiff to ensure that the premises were as safe as human skill could possibly make them, and further, that the Court should have “no regard” to the fact that the pipe elbow was moved after the accident.
Visy contended that looking prospectively, from a time just prior to 6 August 2019, Visy did not need to relocate the pipe elbow because the pipe elbow was installed by a competent contractor; the plaintiff regularly needed to move through tight spaces and navigate various obstacles; there was “plenty of room” to get safely around it; there had been no complaints nor prior accidents reported; given the plaintiff was the supervisor on duty, it was impractical to provide better supervision; instruction is not required for simple and commonplace activities; the pipe elbow was only moved as a sole result of and in direct response to the accident and to find otherwise would involve impermissible hindsight reasoning; and it was one of the plaintiff’s jobs to look out for such risks.
Further, Visy argued that DME was a competent independent contractor who, by agreeing to do the maintenance work, held itself out as competent to do that work. Visy purported to rely upon Leighton Contractors Pty Ltd v Fox and contended that it had no “ongoing general law obligation with respect to the safety of work methods by the contractor”. Visy referred to Schedule 5, and items 7 and 8.2 of the Contract (including “[DME] shall review the hazards associated with all aspects of the work conducted on site on a regular basis”) and contended that DME remained the plaintiff’s employer and the common law position remained that Visy was not responsible for DME’s “work methods”. It was argued that the common law position was not displaced by any broader statutory duties, and further questions of breach of duty of care always turn on whether reasonable care was taken and not whether a statute was breached: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42.
Further, Visy submitted there was no duty to warn of obvious risks: s 5H(1) of the CLA and whether it was obvious is an objective question having regard to the particular circumstances in which the risk materialised and the harm was suffered: Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [75].
Visy contended that the evidence of Mr Watling, Mr Crosley, Mr Medland and the plaintiff supported that the relevant risk of injury was obvious. The plaintiff had attended “the [VP9] area” at least monthly, and the pipe elbow had been in place for 27 months. Further, Visy argued, the lack of any warning tape was not causative as the plaintiff was looking down, and he would have struck his head regardless.
Visy addressed each of the precautions the plaintiff contended Visy should have adopted, relying on matters already set out, in addition to the following. Visy submitted that there was no evidence that AS 1657 had any application to this matter. Further, Visy contended that if part of the plaintiff’s job was as an inspector to look out for safety issues, and he had not identified it, why would anyone else? Likewise, no safety markers were required for the same reason, and it was an obvious risk.
Finally, Visy argued that the plaintiff could have kept a proper lookout as he was moving through the Paper Mill. His failure to do so defeated any contention that Visy was in actionable breach of its duty of care if it owed one. It did not merely constitute contributory negligence, and he was the “author of his own misfortune” citing Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 at [45]-[48].
I reject Visy’s contentions. As noted, Visy did not delegate all of its safety duties for DME employees to DME. The evidence does not show any lack of practicality in providing better supervision, and as noted, Visy had its own safety people employed at the Paper Mill. Whilst hindsight reasoning is not permitted, the evidence of Mr Watling showed how simple and uncomplicated it was to raise the pipe to a height well above the previous unsafe height. Whilst it can be accepted that it was part of the plaintiff’s job to look out for such risks, that does not absolve Visy from liability. Rather, it means (along with other factors) that liability should be shared equally with DME.
I accept the plaintiff’s submissions as to ss 5B(1)(c) and 5C, and find that in the circumstances, a reasonable person in Visy’ position would have taken the stated precautions.
As to whether it was an obvious risk, it must be remembered that s 5F(1) requires consideration of whether the risk was obvious to a reasonable person in the plaintiff’s position. The plaintiff’s position was that he was of a height close to that of the pipe elbow’s position, was wearing a hard hat with a rim, and was approaching it from a direction he had never approached it from before, looking down because of the trip hazards. In these circumstances, I find that the low-hanging pipe was not an “obvious risk” in terms of the CLA.
Finally, in relation to ss 5D and 5E, Visy submitted that the plaintiff bears the onus of proving any fact relating to causation, that is, that any established breach of duty of care caused the accident. Visy pointed to the plaintiff being DME’s employee, and Visy neither trained nor inducted him, nor supervised his work, nor devised his system of work. Accordingly, Visy contended s 5D(1)(b) was not engaged.
The plaintiff, on the other hand, submitted that had the defendants not installed the metal pipe in the low-hanging position where it obstructed the walkway and was able to come into contact with the plaintiff’s head, the plaintiff would not have been injured and would have avoided his neck injury and the consequential psychiatric injuries. Further, if Visy had directed the removal and reinstallation of the pipe at the higher position in which it was ultimately placed, the plaintiff would have avoided those injuries. Further, the plaintiff contended that it is more probable than not that warning markers would also have alerted him to the height and location of the pipe, which would have avoided the collision and the injuries.
The system of work argument, as DME pointed out, was not really the issue in this case. Rather, this was a matter of a hard metal pipe being installed in a location where workers, including the plaintiff, could strike their heads and faces.
In terms of ss 5D and 5E, I am satisfied on the balance of probabilities for the reasons identified by the plaintiff, that Visy’s negligence was a necessary condition of the occurrence of the harm, and that it is appropriate for the scope of Visy’s liability to extend to the harm so caused.

He had never previously negotiated the metal pipe from that approach prior to the day of the injury. On other occasions he had walked parallel to the wall, and from that approach “had a nice view of the pipe”. The plaintiff referred to his evidence set out above at [29]. Further, the plaintiff testified that in other areas of the Paper Mill with low headroom, there were some warnings by way of paint or markings in place. This was not the case with the metal pipe.
The colouring of the pipe was similar to its surroundings, and there was nothing to make it stand out.
The plaintiff was, as required, wearing his hard hat which obstructed his vision.
The plaintiff submits that his actions did not amount to contributory negligence either at common law or under the CLA. He contends that a reasonable person in the plaintiff’s position, watching his footing along a narrow path with trip hazards, where he was required to turn right, and wearing the compulsory hard hat which obscured his vision, can only be described as taking reasonable care for his safety. The standard is “reasonableness” not a counsel of perfection.
DME submits that should liability be found, there should be a finding of contributory negligence against the plaintiff, noting there were no factors such as work pressure, or repetitive work. DME contends that the pathway was “known to the plaintiff” and the obstruction was observable at a glance. DME submits that a reduction by 20% for contributory negligence would be warranted. DME contends that the plaintiff should have at least glanced up and around to ensure his own safety, especially when navigating a pathway which was new to him, especially when he was approaching the metal pipe elbow from a different direction and new angle.
Visy contends that the question is whether, in the circumstances giving rise to the accident, the plaintiff failed to exercise a reasonable standard of care for his own safety, citing T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [4]:

I have found both DME and Visy liable.
I must undertake an apportionment of liability pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and must do so just and equitably having regard to the extent of that person’s responsibility for the damage. I also take into account s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW).
Contributions to a damages award by concurrent tortfeasors is an evaluative exercise. The assessment does not depend on questions of principle of fact or law, but of proportion, balance and relative emphasis. That requires the weighing of different considerations and involves an individual choice or discretion, as to which minds may differ. I must evaluate the relative blameworthiness and relevant causal potency of the negligence of each party: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152; Macquarie Pathology Services Pty Ltd v Sullivan; Sullivan v Macquarie P**athology Services Pty Ltd [1995] NSWCA 540; Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65; James Hardie & Co Pty Ltd v Roberts (1999) 47 NSWLR 425; [1999] NSWCA. Findings of this kind are preconditions to the apportionment exercise: Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 at [20].
Visy contends that if Visy and DME were negligent, DME’s duties as an employer means that its blameworthiness and causal potency were “vastly greater”, citing Czatyrko as referred to above at [154]. Visy points to a number of matters including that DME was the employer with a non-delegable duty of care; Ms Davis, DME’s OHS co-ordinator was present at the Paper Mill most days; DME had a fixed presence on site and was solely responsible for the mechanical maintenance of equipment, and the plaintiff was not working under the direct supervision of Visy; DME was required to carry out risk assessments and review hazards regularly and if hazardous, DME should have advised Visy; DME installed the pipe and created the risk; any defect in training lies at the feet of the employer. Visy contends that DME’s contribution should be in the range of 90% and potentially more.
However, whilst many of these factors have some cogency, there a number of factors which pull the other way. Importantly, the installation of the metal pipe was done under the overall supervision of Visy who vetted the work order, consistently with its practice. That the work requested was required to be completed in a Work Order document, which was included in Visy’s records, is a powerful indication that Visy had systematic control over, and oversaw, all jobs on the site. Further, this was not an unseen internal mechanical maintenance job. It was part of Visy’s overall visible infrastructure, the configuration of which was Visy’s ultimate responsibility. In addition, Visy did not abandon all of its safety work to DME. Rather, Visy had Mr Watling and Mr O’Donovan on site as overseeing safety, with Mr Watling, as stated above, agreeing that the Paper Mill was Visy’s plant, its premises, its machines, its infrastructure, that Visy’s system of work informed and controlled those premises, and that the ultimate responsibility for the safety of the premises of those who work within it was that of Visy. The metal pipe was not in an area exclusively accessed by DME. To the contrary, on the evidence, Visy employees also accessed the area.
DME submitted that the liability for the plaintiff’s injury falls squarely on Visy and submits that if there were to be some attribution of liability to DME as the employer, it would be no more than approximately 10%. DME points to the following passage from Dib Group Pty Ltd Trading as Hill & Co v Cole [2009] NSWCA 210 at [54]:

Visy claims cl 9.2 is clear and provides for DME to indemnify Visy to the extent of its liability, even if it were negligent. Indeed, it points to the reference to the “recovery action from a workers’ compensation insurer” in relation to which Visy argued: “[i]n a recovery action … the Workers Compensation insurer has to establish negligence against the party that it’s seeking to recover from. So to suggest that when the clause says they’re to ‘indemnify us for that, that it doesn’t indemnify us for our own negligence’ doesn’t really make any sense”.
DME on the other hand points to a number of authorities which it says make it clear that construing a commercial contract involves a consideration of the language used, known surrounding circumstances, and the commercial purpose of the contract, having regard to the genesis, background and relevant market, seeking a businesslike interpretation and a commercial sensible result: Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]; see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[52]; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 350; [1982] HCA 24; Royal Botanical Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52; [2002] HCA 5. The Court will prefer a construction “supplying a congruent operation to the various components of the whole”: Todd v Alterra at Lloyds Ltd (2016) 239 FCR 12; [2016] FCAFC 15 at [42].
Further, DME contends that indemnity clauses, like exclusions and guarantees, attract particular interpretation principles, and are to be construed according to their natural and ordinary meaning, read in light of the contract as a whole, thereby giving due weight in the context in which the clause appears, including the nature and object of the contract, and where appropriate, as a last resort, construing the clause against the party proffering the clause in case of ambiguity, either in the provision itself, or in the width of its application. It also points to the principle that indemnity clauses will be construed strictly, and in favour of the profferer of the indemnity (here DME): Rava v Logan Wines & Anor [2007] NSWCA 62 at [51]; Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 at [48]-[49]; Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; [1986] HCA 82; Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336 at 344; [2010] HCA 37; CSR Ltd v Adecco (Australia) Pty Limited [2017] NSWCA 121 at [160]; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 at [53]; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [17]-[23]; Laresu Pty Ltd v Clark [2010] NSWCA 180; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 254; [1988] HCA 11.
DME submits that the proceedings against Visy, and any loss in the form of liability it may have to the plaintiff, can only arise from its own acts of omission. These do not and cannot have to have been caused by or resulted from (directly or indirectly), any act or omission of DME. DME relies on the discussion in Erect Safe Scaffolding (Aust) Pty Limited v Sutton (2008) 72 NSWLR 1; [2008] NSWCA 114 at [5]-[12] per Giles JA and at [138]-[160] per McClellan CJ at CL. Further, DME contends that Visy cannot be liable for the negligent acts and omissions of DME (such as arises under vicarious liability) and the plaintiff does not allege that it is.
In addition, DME submits that this is not a clause which even raises the arguable doubt seen in many cases, where the indemnity obligation arises simply out of the performance of the contract or services. DME contends that the indemnity clause could have expressly provided indemnity for liability for Visy’s own negligence but did not, and in the absence of further express words, to the effect that DME must indemnify Visy against proceedings and loss arising from Visy’s own negligence cannot extend to this. Further, DME contends there is no commercial or fairness reason why DME would be allocated all liability.
I accept DME’s arguments on this issue. In particular, I note that in Erect Safe Scaffolding at [12] it was stated (relevantly):

The plaintiff’s role with DME at Visy prior to the accident, was as a member of the Control Monitoring Team, which involved inspecting machinery and supervising its maintenance. Most of the time, his role did not require manual labour. However, importantly, part of his role involved being on the “on-call” roster and attending to breakdowns. This part of his role, I accept, could be quite physical, and could involve manual handling, and frequent bending and twisting.
It is also clear that in the weeks following his neck injury, the plaintiff continued with his inspection and supervisory duties, but he was unable to perform the more physical work, including the on-call work and the breakdown work.
I accept that on 13 August 2019, Dr Osman Darwiche (the general practitioner to whom DME sent the plaintiff) issued the plaintiff with a Certificate of Capacity indicating he was fit for pre-injury duties. When the plaintiff was to be placed on the on-call roster, the Certificates (dated 13 August 2019 and also 19 August 2019) indicated that the plaintiff could work with restrictions.
Further, the evidence shows that the plaintiff’s neck condition was increasing in severity in terms of pain and restriction of movement in his neck, yet he continued in his role, except for the on-call roster. At the same time, he was consuming significant amounts of painkillers throughout this period, up to Oxycodone 15mg twice a day and Targin 30mg.
Amongst the material is a report from one of the plaintiff’s teammates made to Mr Dixon on 27 September 2019 (and further notified to Mr Crosley of Visy (and copied to Mr Paalvast of DME)) who noted that “since he has returned to work with some prescribed pain killer medication – which his Dr has given written clearance for the workplace just lately” which meant that the plaintiff was demonstrating “an increased level of vagueness” (with some examples given) and “[h]is workmates have rightfully raised concerns about these behaviour changes and potential impact on [the plaintiff] and others in the Visy environment.” Mr Dixon stated “This is a completely new situation that I found out about this afternoon”. (Emphasis added.)
Further concerns were reported on 30 September 2019 by a leading hand at Visy who noted that he and some crew members observed the plaintiff to be “a bit spaced out and not able to concentrate on whats [sic] at task. For example we had a pre start on 25/9/2019 and he didnt [sic] take in information given correctly. I feel he could be a danger to our other co workers if he had to work along side [sic] them.”
The plaintiff continued to work until November 2019, taking intermittent sick leave.
The issue of restrictions in the Certificate of Capacity when the plaintiff was to be placed on the on-call roster came to a head in November 2019. On 19 November 2019, Mr Paalvast of DME emailed Steve Bisshopp, of Frontline Human Resources, stating:

It is not apparent from the material before me whether Mr Paalvast was aware the plaintiff had left early for a medical appointment. However, on any view, the terms of this email to a longstanding employee, without a concerted attempt to have a face-to-face meeting to discuss the change in employment, or, at the very least to make sure he had received this important information, reveals a palpable lack of respect shown to the injured plaintiff in all of the circumstances.
When the plaintiff attended the Paper Mill to work on Monday 25 November 2019, at about 6:20am, he was unable to access the Paper Mill. The plaintiff reported to Dr Thi Tran, his local general practitioner (GP), later that day that he was distressed from this action which took place without any formal face-to-face consultation. Notably, he reported to Dr Tran he had not seen the email until that day. Dr Tran’s notes recorded that the plaintiff reported “he can not come into that workshop[;] he feels anxious[;] can not concentrate, upset, feels physically sick[;] does not think he can work for this week[;] works as a machine inspector and supervisor[;] [the plaintiff] already contacted his Union and Lawyers about the incident[;] feels a bit agitated[;] counselling offered[;] needs ongoing support”.
The obvious breakdown in communication between Mr Paalvast and the plaintiff can also be seen from emails between him and the plaintiff’s union representative on 26 and 28 November and 4 December 2019. For instance, Mr Paalvast seems to make the suggestion that the plaintiff somehow controlled his own capacity for work when he stated “[a]s [the plaintiff] has had the restrictions to his working capacity reinstated”. Mr Paalvast also pointed to “[a]nother example of [the plaintiff’s] lack of cooperation” is being informed about the plaintiff’s spinal surgery “which is the first we have heard of this”. Given the first-time spinal surgery was discussed with the plaintiff was with Dr Ow-Yang on 22 November 2019, Mr Paalvast’s comment indicates unwarranted negativity towards the plaintiff.
As early as 7 February 2020, DME had decided to terminate the plaintiff’s employment, which they wanted to do “as soon as possible”. This appears in an email sent with “High” importance on 7 February 2020 at 2:49pm from Ms Davis to Mr Paalvast and Mr Dixon.
This decision was in response to the plaintiff’s email on 5 February 2020 to Mr Paalvast in which he stated that he considered the job list with which he had been provided relating to the workshop were outside his ability and the doctor’s restrictions, for example “I am unable to do fabrication because of bending and holding weight. (Restricted bending for inspecting only)”.
On 25 February 2020, the plaintiff had neck surgery performed by Dr Ow-Yang.
On 1 April 2020, Ms Denise Bailey, a rehabilitation consultant who had been assigned on 19 February 2020 reported that the plaintiff was “not going well post surgery”. Ms Bailey also stated that she was “concerned with [the plaintiff’s] presentation” and that she has “spoken to him a few times this week and he appears very dazed and advised it is due to the high levels of pain relief”. Ms Bailey further stated:

The following material comes from the plaintiff’s statements, his evidence in chief, as well as medical records from treating doctors.
By way of background, some of which is set out above, having qualified as a wood machinist in April 1992 the plaintiff worked in a timber mill (last known as Weyerhaeuser) for 19 years from the end his schooling. He suffered from a lower back injury on 11 April 2002 while working on a machine. Whilst the 2002 injury required treatment over a number of years, the plaintiff continued to work continuously with some exceptions. In about 2005, he left the timber mill and worked for DME as a truck driver and handyman for a couple of years. He then worked for Tumut Metaland for about three years where he undertook an apprenticeship as a boilermaker. In 2010, he returned to DME, working at the Visy premises with a boilermaker’s qualification. He worked there uneventfully, despite some ongoing lower back pain.
In 2013, there was an attempt at permanent resolution of the lower back pain by implanting a spinal stimulator in the lower back but this was removed in April 2019 as it was not helping. He continued to work for DME during that time. Also in 2013, he was promoted to the position he was in at the time of the accident. As will be discussed further below, the evidence is clear that whilst the plaintiff was taking painkilling medication for his lower back condition at the time of the accident, it was at a much lower level than he needed after the accident.
In his first statement signed on 8 August 2022, the plaintiff stated at [29] that following the accident he continued to work for a few days, but the pain was getting worse, which included him getting terrible headaches. He saw Dr Darwiche within a week after the accident. (Although he stated Dr Darwiche was his local GP, in fact other evidence showed he was sent to Dr Darwiche at the behest of DME.) At this time, his pain was still constant and getting harder to bear, which included neck pain and radiating pain.
Dr Darwiche ordered a CT scan and x-ray, prescribed pain medication and certified him as unfit for work. The plaintiff had an x-ray of his cervical spine on 14 August 2019 which was reported to show, amongst other things, “mild degenerative narrowing at C6/7 disc space with endplate degenerative changes and spondylosis”.
I note that the medical records show that on 12 September 2019, Dr Darwiche referred the plaintiff to Dr Ow-Yang stating “I saw him two days ago … he says the pain is much worse … it is impacting on his sleep and gives him headaches”. The plaintiff underwent an MRI scan of the spine and brain on 12 September 2019. On 19 September 2019, Dr Ow-Yang reported that since the injury, the plaintiff has had a constant global headache, neck pain and right upper limb radicular pain. He was taking strong opiate analgesic medication which only provided partial improvement in pain management, but he continued to attend work on his pre-injury hours with modified duties and a lifting restriction of 10kg.
Dr Ow-Yang recommended a steroid injection treatment which was provided on 25 October 2019. The plaintiff continued to take prescribed pain medication and started physiotherapy as well. He returned to work on light duties but continued to experience pain in his neck and arms and constant headaches, even though the steroid injection treatment improved things, but the pain and headaches continued. The pain was worse in his right arm, but it affected both arms.
The plaintiff said he was told by his employer that he was unable to return to work on 22 November 2019 at the Paper Mill because there were no suitable duties available**.** He was advised that his swipe card access had been revoked and was requested to report to the workshop “in town” on the Monday.
Dr Darwiche referred the plaintiff to Thrive Psychology on 19 December 2019, and he attended his first session of therapy on 21 April 2020. He reported to the psychologist his symptoms and she diagnosed him with Adjustment Disorder with mixed anxiety and depression.
On 25 February 2020, he underwent surgery performed by Dr Ow-Yang called an “[a]nterior C6/7 discectomy [and] rhizolysis [and] disc arthroplasty (Prodisc C)”. Following the surgery, he continued to take the prescribed pain medication and started physiotherapy again. The plaintiff said he was able to move his neck around more after he recovered from surgery but that the pain and headaches continued as before.
The plaintiff said he could not return to work following the surgery. The continuing pain and constant headaches became too unbearable, to the point where his psychological wellbeing was affected as well.
On 7 May 2020, the plaintiff had a telehealth consultation with Dr Ow-Yang who reported, amongst other things, “[h]is main complaint is one of ongoing headache which is quite disabling and he states that this will prevent him from ever being able to work as a boiler maker again”. He noted some guarding in the right side of the neck and some numbness in a finger.
The plaintiff rated his pain as an average of six out of ten to a pain specialist, Dr Romil Jain, on 23 June 2020, and said that it interfered with many aspects of his life.
He was eventually referred to Dr Todhunter, pain specialist, who had treated him previously in respect of his back pain. He first saw Dr Todhunter in respect of his neck injury on 13 August 2020.
The plaintiff had Botox injections in September 2020, but it provided no pain relief and he was still suffering from significant pain and other symptoms.
The plaintiff continued to see Dr Todhunter and was referred to a neurosurgeon, Dr Jacob Fairhall, to consider additional treatment options, and he continued to attend physiotherapy sessions fortnightly. He was taking very strong pain medication: Fentanyl (50mcg per hour delivered via a patch applied every 2 days) and paracetamol. He had resulting constipation for which he was medicated.
The plaintiff’s pain continued and he continued to take pain medication for his physical injuries. Different pain medication was trialled.
He undertook psychological therapy until January 2021, and then had a break, recommencing in December 2021 with a new psychologist and continuing until August 2022. He told the psychologist in December 2021 that he was affected by his severe pain, he was struggling to cope with everyday tasks and was “physically broken”.
On 29 August 2022, the plaintiff saw a new psychologist, David Loe who reported the plaintiff presented with “complex chronic neck and shoulder pain with pervasive symptoms of trauma, anxiety and depression”.
The plaintiff’s use of pain medication increased significantly between 2022 and 2023, noting he was taking 4 times the dose of 60mg of oral morphine equivalent per day which is considered to be the highest dose that people with non-cancer pain should ever get to. He has since reduced his Fentanyl use from 75mcg per hour to 50mcg per hour.
In his written statement affirmed in 2022, the plaintiff stated that he felt frustrated and hopeless that he was still constantly in pain (headaches, neck and arm pain with his right arm worse than the left, and his right hand often feels numb), had disturbed sleep, cannot drive for very long periods because of the pain in his right arm, and that there were no further options for treatment. He says he had lost his confidence and self-esteem, and was frustrated by his inability to work and look after his family. He felt as if his life had lost purpose and direction. Since the accident at the Paper Mill, the plaintiff felt he had lacked energy and motivation to do much, had trouble concentrating because of the constant pain, and felt “out of it” most days. He said he had lost the ability to maintain his large rural property, his home and garden which used to give him a great deal of joy, and this made him more frustrated and anxious. As to his pain, it was severe and constant, and some days were much worse than others. As at 2022, he had been seeing a psychologist at Wagga Wagga once a month for an hour and still felt completely lost and hopeless and lived a generally reclusive life.
The plaintiff claimed he could no longer contribute to the maintenance of the home like he used to and had trouble with tasks as basic as vacuuming or mowing the lawn. He claimed that his wife Lynda had been forced to do the things he used to do like taking the rubbish bins down the driveway each week. He struggled to lift anything heavier than a carton of milk. The plaintiff stated that since the accident his wife and (to a lesser extent) his daughter, had to do almost everything for him.
The plaintiff claimed that his wife organised all meals, did the cleaning, vacuuming, making of beds, the bins, the maintenance and the shopping. He could not stand unsupported for too long as he was extremely unbalanced. He had difficulties bending or twisting. He also could not sit in one spot for a long time. He stated:

When asked about the nature of the work he was doing prior to August 2019, the plaintiff did not agree that he could not have done a job that involved heavy lifting and bending.
The plaintiff was asked about the kind of duties he could undertake shortly after his back injury in 2002, and he agreed he did not do heavier manual work at that time. The plaintiff was asked a number of questions concerning his history of back pain. For instance (without being exhaustive), he needed medication for pain relief in June 2009 and continuing over the next three years to 2012 he continued to get scripts for Panadeine Forte and Tramal for treatment of his lower back. Further, he said it was “possibly” the case that in March 2012 he was feeling depressed, and lacking in motivation and concentration. And in 2012 and 2013, he was getting further “denervation” treatment with Dr Todhunter. The plaintiff said at that time, this was an attempt to decrease the analgesics because Visy had brought in the drug testing.
The plaintiff candidly agreed that when he went back to work after having the stimulator put in, he was having problems with his bosses at DME, and they were such that he spoke to his GP about them. It caused him concern for some considerable time and continued until he finished work at DME.
The plaintiff agreed he had issues with the managing director of DME, Mr Dixon from 2013 right up to when he finished work in 2019. The plaintiff agreed he was complaining over that period of time about being bullied. Whilst he could not recall the date, suggested to be in 2015, he agreed he saw his GP for depression and was prescribed Endep.
When it was put to him that he was taking Panadeine Forte from 2014 to 2017, two tablets three times a day, he stated he was only taking it as needed. Again, when it was put he was taking eight Panadeine Forte tablets per day in 2018, he replied “when needed”.
The plaintiff agreed that in July 2018, he was seeing his doctor about getting an appointment to see an orthopaedic surgeon to look at alternative treatments to medication. The plaintiff agreed that in September 2018 he presented to his GP for a review of pain and also for depression, and that he had a cortisone injection in the sacroiliac joint at around that time, and he said his pain was slowly improving.
The plaintiff further agreed that in a period of about nine months before the accident, his depression had worsened with ongoing clashes with his boss; that he did not get along with one of his bosses very much at work; that the boss had been trying to get him fired for about five years; and the boss bullied him at every occasion.
The plaintiff could not remember if the nerve stimulator was removed in the early part of 2019.
The plaintiff was then challenged about his account that he separated from his wife because of the neck injury in 2019. It was suggested to him that he told his GP he was thinking about cheating on his wife, there had not been a spark between him and his wife for many years, and he had met a 20-year-old woman in a bar in January 2019. The plaintiff replied that nothing had ever come of that and over a 40-year marriage, people have ups and downs. He conveyed that a very large part of the reason he separated from his wife was because of his neck injury.
The plaintiff was then asked about telling a Dr Robert Thomas in December 2022 that his “marriage had broken down in the last few years”. He said he did not recall that. He was asked about telling Dr Thomas that he was “keen to seek another relationship” and that he “wanted to have a further child”. The plaintiff said he could not recall that, but he may have said it. This was apparently in the context of thinking about a reversal of his vasectomy. The plaintiff was emphatic in replying that he had never had an affair with another woman, ever, and by 2022 he was no longer working.
The plaintiff was then asked about seeing his GP in February 2019 and it is recorded at that time he had been on regular Panadeine Forte and Tramadol, to which the plaintiff again responded “as needed”. The plaintiff then said he did not recall asking at that time for an increase in his antidepressant medication, Escitalopram. As to the doctor’s suggestion to the plaintiff that he see a pain psychologist, and that he had refused, the plaintiff responded that such a specialist “probably couldn’t do much more for me”, and that he did not think he was on the medication for very long.
The plaintiff was then taken to a doctor’s note which showed that he had the nerve stimulator removed and a denervation procedure done by Dr Todhunter in early April 2019. In relation to a request for a script for Endone at that time, the plaintiff said he thought it was because of the stimulator being just taken out.
The plaintiff reiterated he was taking the medication as needed - up to six to eight Panadeine Forte at the most, and zero on some days. He agreed that it was for continued lower back pain.
The plaintiff was asked about June 2019, and the doctor’s note which said “[the plaintiff] is here for another script of Endone. States that he has been taking two to three tablets a day and it’s the same response to the lower back pain.” The plaintiff said he did not remember that.
The plaintiff was asked about being sent off for an MRI scan at about that time. To this he responded:

The plaintiff was next asked about an entry about an epidural injection which apparently had taken place on 24 July 2019, just under two weeks before he his head collided with the pipe. Again, the plaintiff responded that these issues never stopped him from working. The plaintiff was then asked about telling his doctor on 2 August 2019 that he wanted to take six Panadeine Forte per day, and that he had described his pain at that time as a seven or eight out of ten.
The cross-examination then moved to after the accident. The plaintiff said Ms Davis arranged for him to see a doctor and Dr Darwiche was the first one she could get, and he was under her guidance.
When cross-examined about the entry showing he had seen his own GP on 9 August 2019, he was asked why he did not tell his own doctor about the terrible neck pain, terrible headaches and that it was getting worse. The plaintiff replied that when he saw his own doctor, she said “Catherine [Davis] has taken you to [Dr] Darwiche, therefore, he can handle that issue”.
The plaintiff’s cross-examination continued the following day. In particular, the plaintiff was asked about his statement where he said he had previously led a normal and happy life as set out above at [339].
It was put to the plaintiff that he was not happy and active, but the plaintiff insisted he was. As to his duties at the Paper Mill, the plaintiff stated that following the accident, he was doing his duties other than the one-week on-call work or any breakdown work.
The plaintiff said his regular GP did not want anything to do with the “compo thing” involving his neck. Dr Darwiche was looking after his neck and “you can’t do two doctors doing the same thing”.
The plaintiff was then asked about seeing his regular GP on 4 October 2019, where he complained that he was “feeling down” and that he had been “bullied at work”. The plaintiff had received what he thought was a death threat directed at him which he reported to the police, to his work and to the union. The plaintiff had assumed threat had come from someone at his work.
The plaintiff went to see his GP again on 1 November 2019, and the notes record that he had a further epidural on 30 October 2019. The plaintiff agreed that he must have had some lower back pain. The plaintiff then was asked about going back to his GP on 25 November 2019 complaining about bullying in the workplace but he could not remember that. When it was suggested that he had been locked out from work at Visy since that morning, he said he remembered that he had been locked out the same day as he saw Dr Ow-Yang. When asked if at that time, he was feeling anxious, could not concentrate and felt physically sick, he responded “I suppose. I had just been locked out of work”. The plaintiff said he could not remember seeing his GP, Dr Tran, that day, and could not see how that worked given he had to see Dr Ow-Yang and he was in Wagga Wagga.
The plaintiff stated that the bullying was from DME, not Visy. He denied there was a confrontation the day he was locked out. He agreed he went back to the doctors’ office on 28 November 2019 where he told the GP he had “had a meeting with people at work” and he was “waiting for a verdict”. He was “still upset” and said he “can’t go to the workshop”. He said that they were trying to move him from Visy into the DME workshop in Tumut, but DME had no duties for him.
At a later point of time, in July 2023, the plaintiff said he consulted a psychologist, David Loe, by telephone. It was put to the plaintiff that he felt better and more normal when travelling and socialising outside his local community, out of Tumut and away from the other people who worked at DME. He “felt good” at times when he was in Melbourne, in Newcastle and in Sydney. The plaintiff agreed that he had an ongoing issue with people who worked at DME.
The plaintiff agreed that he told a psychologist in March 2023 that he had been bullied at work since 2014, since the drug testing was brought in; that he had “probably” said that his boss at work had been unsupportive and had micromanaged him; that he had said his boss had been dismissive and had used bullying tactics against him; that he had faced discrimination by some of his supervisors; and that he had again referred to the death threat he had received by phone on 1 October and that as a result of this he had been developing nightmares and flashbacks and had been suffering from severe anxiety.
The plaintiff also agreed that in May 2023 he was sent by solicitors for Visy to an organisation called the Vocational Capacity Centre, and they prepared a report about what work he may or may not be able to do. When asked whether being a Maintenance Planner was the sort of job he would be able to do, the plaintiff replied he did not have the skills or, in effect, the relevant experience.
He was then asked if he could work as an audit clerk working in building and maintenance supplies. The plaintiff denied he could do such a job with his injury. The following exchange occurred:

Dr Burrow noted no intervening accidents. He noted cervical range of motion was reduced by one third and that the plaintiff was uncomfortable with end range motion.
Dr Burrow opined that the 6 August 2019 accident aggravated pre-existing degenerative changes, particularly at C6/C7 that resulted in the subsequent operative and non-operative treatment performed to date. Dr Burrow stated “[i]n this sense then, it has caused the injuries and disabilities as detailed in my report.” He further opined that there was evidence of pre-existing condition albeit asymptomatic by way of degenerative changes at C6/C7 which were “exacerbated-aggravated [sic]” by the work accident and required significant interventional treatment.
Dr Burrow noted the plaintiff’s “quite severe” lower back injury obtained in 2002 which required the insertion (and subsequent removal) of a nerve stimulator and significant analgesia. Dr Burrow also noted that despite the 2002 injury, the plaintiff managed to continue to work on a full-time basis, performing heavy duties and continued to perform home and gardening chores. Ultimately, Dr Burrow was clear in stating that the plaintiff’s ongoing disability was related to the cervical spine condition.
Dr Burrow regarded the plaintiff’s prognosis as “fair”, and that there was no prospect of significant improvement in his baseline, ongoing symptoms and disability at the time he assessed the plaintiff. He opined that the treatment to date was reasonable and necessary and was due to the accident. He was of the view that analgesia should continue, but contrary to Dr Bodel, opined that further physiotherapy and massage treatment should cease as it was not providing significant symptom improvement, and there was no expectation of further “recovery”.
He opined that the plaintiff had difficulty performing heavy home chores including vacuuming, washing, mopping, heavy home shopping, garden maintenance and mowing. This was principally because of his neck symptoms.
As to the level of domestic assistance now required, he stated that his estimate was that the plaintiff required two hours of weekly assistance for home chores and two hours of fortnightly assistance with gardening and mowing. It is not clear how the two hours assistance fortnightly with gardening and mowing was arrived at by Dr Burrow. There was no reference to the size of his property.
As to future care, regardless of his injuries, Dr Burrow stated that the plaintiff may require future care with regards to the cervical spine condition as there may be deterioration with a more proximal disease occurring within 10-20 years and if sufficiently significant, may even require further surgical intervention. Dr Burrow stated that:

An expert conclave was convened on 15 November 2024 between the three experts, and as indicated above, they agreed on their diagnosis.
The experts assessed the prognosis as either “fair” or “poor” and there would be no resolution of his current symptoms and no spontaneous improvement. The experts stated there may be a deterioration in the medium to long term and there might be progression of adjacent level disc disease. They agreed the plaintiff had neck and arm pain and the treatment to date of assessment had been appropriate for the management of the injury.
The experts further agreed that there was a probability for a need for further medical input in the management of his injury. They opined the plaintiff needed access to his GP on an “as needs” basis, probably twice a year, to review his levels of pain. If there was deterioration over time, they opined that the plaintiff would need referral to the appropriate medical specialist for review.
The experts agreed that the limits on the plaintiff’s functional capacity with regards to employability, performance of some activities of daily living including recreation and sport, were attributable to the orthopaedic condition. Further, that the orthopaedic condition had resulted in restrictions on the plaintiff’s capacity for work.
The experts agreed that the plaintiff was permanently unfit for heavy labouring pre-injury duties and he was clinically fit for permanently modified duties, particularly avoiding strenuous or repetitive tasks with both arms, especially those that are overhead and with no greater than 10kg weight levels.
The experts ultimately agreed that there was no isolated separate injury to the right shoulder as a result of the subject accident.
As to domestic assistance, the experts agreed that the plaintiff “probably does require some domestic assistance, including household maintenance and cleaning activities”. It is unlikely he would require assistance with personal care activities. An occupational therapist should provide a formal assessment to determine past, present and future needs.

In Dr Samuell’s 2023 report, it was recorded that the plaintiff had had a death threat around a month after the injury. Dr Samuell’s reported that the plaintiff said that he reported the death threat, and the person was caught. Dr Samuell reported that the plaintiff said that he believed the person who made the threat did so on behalf of his employer, and that he does not trust “them” and his employer is a “psychopath”. The plaintiff said that he had been “bullied at work for so long by him, even walking past me, if he knew no one was around, he would go into an angry tremble like he was going to fly at me”.
When asked about difficulties before the subject accident, he said Visy had introduced a drug policy four years after he commenced employment but, Dr Samuell noted “[i]t was not clear if this was impactful on [the plaintiff]”.
Dr Samuell opined that the plaintiff’s narrative had an “inauthentic quality” and “[h]e presented concerns that were disproportionate to the events”.
Dr Samuell also noted a number of entries related to depression in the plaintiff’s medical records in 2012 and 2015. Dr Samuell noted a reference by Dr Kim in September 2018, that the plaintiff had presented for review for “his pain and ? depression”.
Dr Samuell further noted that in January 2019, the plaintiff told Dr Kim he had met a 20-year-old “girl” at a bar and he had been contemplating cheating on his wife, and that he and his wife had not had a spark in many years. It was noted that the plaintiff’s antidepressants were increased from 10mg to 20mg in July 2019, and that on 2 August 2019, Dr Tran noted an ongoing dependency. Dr Samuell noted other details from treating doctors’ notes, including that on 30 November 2022, it was noted that the plaintiff was seeking to have a vasectomy reversal, from which flowed a reasonable inference that the plaintiff wished to have more children, which was at odds with the history provided at interview.
Dr Samuell noted mood improvements reported to various treating doctors, which was at odds with the “bleak self-representation made to me and Dr Khan”.
Overall, Dr Samuell regarded the plaintiff as an unreliable historian. Dr Samuell opined that the plaintiff had had a lengthy history of mood difficulty due to pre-existing chronic pain, opioid dependence and marital difficulty that pre-existed the subject accident, as well as difficulty with coping with interpersonal issues in the workplace. He stated:

Drs Samuell and Khan were clearly at odds in their assessment of the reliability and consistency of the plaintiff’s narrative of his history. Dr Khan noted that the plaintiff’s treating team, including his psychiatrists and psychologists, had not raised any concerns about the plaintiff’s inconsistency or unreliability. Dr Khan criticised Dr Samuell for placing excessive emphasis on historical general practice clinical records to justify his conclusions.
Dr Khan stated that whilst the plaintiff had experienced intermittent difficulties with his mood at various stages in his life, there was no indication that he had suffered from a mood disorder. Other than a pre-existing opioid use disorder, the plaintiff did not suffer from any other psychiatric/psychological condition or injury prior to the subject accident.
Dr Samuell drew attention to the lack of reference in the Statement of Claim to any bullying or any death threat, whereas, Dr Samuell contended, Dr Khan had relied upon the death threat as the cause of the claim.
Dr Khan, however, stated that the main psychiatric/psychological condition suffered as a result of the subject accident was persistent depressive disorder, and he “later” developed the psychiatric/psychological condition of post-traumatic stress disorder (PTSD) and an aggravation of the pre-existing condition of opioid use disorder. Dr Khan further stated the plaintiff’s prognosis was poor because of the aggravation of the opioid use disorder which has since deteriorated due to the subject injury.
Dr Samuell referred to the difficulty in diagnosis and prognosis because of the inconsistencies identified in his report. Dr Samuell stated on the basis of his long term complaints, one could reasonably expect ongoing similar symptoms at a similar level of disability. He stated he was not satisfied that there was any material difference in the plaintiff’s mental health before or after the subject accident.
Dr Khan noted that even though the plaintiff’s mood disorder first presented as some symptoms of depression and anxiety around 2018, it was not diagnosable as a psychiatric/psychological condition before the subject injury “as evidenced by the fact that the plaintiff had been able to sustain employment with his employer without any significant enduring functional impairment”. Dr Khan stated Dr Samuell’s comments were misleading as to the plaintiff being depressed in 2012 and taking medication “for both depression and nerve pain” in 2015. Rather, Dr Khan notes that he was not prescribed with antidepressant medication in March 2012 and in 2015, given the context of the plaintiff wanting to follow-up with Dr Gwilym Mumford who is a physician and not a psychiatrist, Dr Khan opined that it could only be assumed that the antidepressant in 2015 was prescribed for the plaintiff’s chronic lower back pain and not any depressive symptoms.
Dr Khan set out in detail why he said the plaintiff’s opioid use increased by 43-54% after the subject injury, and the only change to explain the increase was the plaintiff’s injury to his cervical spine. He challenged Dr Samuell’s comment that the cause of the plaintiff’s condition is “not precisely known”. Dr Khan stated that was contrary to the fact that the only change in the plaintiff’s condition is that he has developed a deterioration of chronic pain issues and a deterioration in his mental state since the subject injury. Dr Khan described the increase in the opioid use after the subject accident as “acute”. Dr Samuell said he deferred to Dr Khan’s opinion on this issue as it went beyond his own expertise as a psychiatrist.
There was also disagreement between the experts as to the significance of an increased in the dose of an antidepressant medication, Escitalopram, in the weeks before the subject accident, from 10mg mane to 20mg mane. Whilst Dr Samuell referred to the Therapeutic Indications published by the Therapeutics Goods Administration for this medication (treatment of major depression; treatment of social anxiety disorder (social phobia); treatment of generalised anxiety disorder; treatment of obsessive-compulsive disorder), Dr Khan opined that medications are routinely prescribed for various indications outside of those indications “and this is confirmed by the pattern of prescription of anti-depressant medication for the Plaintiff before the subject injury”.
Dr Khan notes that there was no reason recorded for the increase in Escitalopram on 19 July 2019, whereas there was when he was commenced on Escitalopram on 20 September 2018 in the context of the plaintiff feeling mistreated. Dr Khan states that this medication was ceased on 10 October 2018, and Sertraline and Fluoxetine were trialled:

As to the question of the breakdown of the plaintiff’s marriage, Dr Samuell referred to a “breakdown” in the marriage prior to the subject accident. Dr Khan, on the other hand, acknowledged pre-existing difficulties in the marriage, but the plaintiff had not separated from his wife until after the subject accident.
Dr Khan concluded that the plaintiff was totally incapacitated for work and his prognosis regarding return to work in the future remains poor. This was not only because of the enduring effects of his psychiatric/psychological condition, but also because his medication also affected his capacity to work.
Dr Samuell did not diagnose an accident-related psychiatric condition.
In response to Dr Samuell’s criticism of Dr Khan’s opinions, Dr Khan clarified that the plaintiff’s persistent depressive disorder which developed secondary to his workplace physical injury to his cervical spine, was the predominant cause of his enduring psychiatric/psychological disabilities. The PTSD, which was not relied upon in the Statement of Claim, was not the main component of his presentation.
The two experts also disagreed about whether the plaintiff’s psychiatric and/or psychological treatment had been reasonable and necessary as a result of the subject accident. Dr Khan opined that it was. Dr Samuell was of the view that it would have been required irrespective of the subject accident. Again, Dr Samuell relied on the pre-injury use of antidepressants in support of his opinion. Dr Samuell also questioned the value and purpose of the treatment given there had been not material progress in the plaintiff’s condition.
Dr Samuell was further of the view that the plaintiff did not require future psychiatric/psychological treatment due solely to the subject accident, whereas Dr Khan opined that regular treatment was needed. Dr Samuell drew the Court’s attention to the “bleak prognosis offered by Dr Khan earlier where he states that plaintiff’s condition is unlikely to improve”. Dr Khan responded by stating that treatment of chronic psychiatric/psychological conditions routinely persist long-term to ensure the condition remains stable and does not deteriorate significantly. Dr Khan further noted “I draw the [C]ourt’s attention to the fact that Dr Samuell is not an expert in addiction psychiatry or addiction medicine and is therefore not the most qualified expert to comment on the [p]laintiff’s ongoing treatment requirements with respect to his psychiatric and addictive disorder”.
The doctors also disagreed as to the loss of any future earning capacity on the bases previously discussed. As to the plaintiff’s requirement for past domestic assistance, Dr Khan opined that the plaintiff had required some past domestic assistance because of a combination of his lack of motivation and energy from his accident-related psychiatric condition in conjunction with chronic pain.
Dr Samuell opined that the plaintiff has not required any past domestic assistance for any injury-related psychiatric/psychological condition.
As to future domestic assistance, Dr Khan opined that the plaintiff would require future domestic assistance, but an occupational therapist’s assessment would be required. Dr Samuell was of the view that from a psychological perspective, there was no requirement for future domestic assistance from a psychological perspective.

In his oral evidence, Dr Khan reported that when he met the plaintiff, he denied having a pre-existing psychiatric history on both occasions. By the time of conclave, Dr Khan was of the opinion that the plaintiff had a pre-existing opiate use disorder, having seen the clinical records of the Connection Medical Centre. Dr Khan was aware of the plaintiff having been prescribed antidepressant medication in 2015 but understood it was for the purpose of pain management, lower back pain, and he was under the surveillance of a pain specialist, Dr Mumford. For a brief period, he was on a particular type of antidepressant medication in 2018 “which was prescribed by the GP at the time, with concerns about maltreatment in the workplace triggering the plaintiff’s mental state.” But that was soon ceased, and two other antidepressant medications were prescribed in the management of chronic lower back pain, with no reference to mood disorder. Dr Khan again stated that the plaintiff had never had his work attendance affected by any condition prior to the accident.
Dr Khan indicated that care needed to be taken in reading GPs’ notes, especially where pain management was involved. Further, he stated that “depression” is not a diagnosis available under the American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (5th edition, 2013, American Psychiatric Association), but rather just a symptom. Dr Khan’s review of the GP records indicated that he had seen his GP at the time for the symptom of depression “in the context of pain”, and to the extent that any depression was reported, it was not such as to cause him to stop working.
Whilst Dr Khan said he could accept that the bullying and harassment was a significant component of his psychological presentation, he could not agree with the suggestion that it was the primary psychological problem.
Dr Khan also stated that the opiate abuse disorder was “significantly aggravated” as a result of the subject accident and that one of the objective measures of making that clinical assessment is the amount of medication.
Having been provided with the GP records for the conclave, Dr Khan stated:

Dr Khan confirmed that when he did the analysis of what the plaintiff was taking by way of medication before and after the 6 August 2019 injury, he provided the Court with a detailed analysis using the opioid conversion ratios which showed the significant escalation of the plaintiff’s opioid requirements after the accident, and, he opined, it was very clearly not just solely related to the normal trajectory of tolerance. He stated that a person would not be fit to work on the doses the plaintiff was taking, certainly not in the industry that the plaintiff worked in.
When Dr Samuell asked if he agreed with this analysis, he candidly stated that it was not his area of expertise.
In oral evidence, Dr Samuell said it would not surprise him for a man who has suffered an injury which has led to a cervical fusion and perhaps a suboptimal result, being left with chronic neck pain and radiculopathy into the arm and significant headaches, that he might have a psychiatric reaction in the form of depression and anxiety symptoms. Dr Samuell also said it was possible that, even if he had a depressive condition prior to 6 August 2019, a person with the plaintiff’s clinical picture would develop an aggravation of those depressive and anxiety symptoms as a consequence of his physical disorder.
Dr Samuell agreed that if, as according to Dr Todhunter, the plaintiff had a chronic pain disorder, the plaintiff was at an increased risk and this assisted him in forming a view as to whether this man was more likely than not to develop symptoms of depression and anxiety as a result of his clinical course following the neck injury.
Dr Samuell was asked about his opinion expressed in the conclave report to the effect that the plaintiff did not require future psychological or psychiatric treatment in part because of his bleak prognosis. Dr Samuell appeared to modify that opinion and stated that the plaintiff needed to be treated for his pre-existing condition. Further, Dr Samuell also agreed with the proposition put to him by the plaintiff’s Senior Counsel that if the plaintiff had a significant aggravation of his opioid use disorder, that would be a powerful reason for ongoing treatment.
Dr Khan was of the view that if this injury did not occur, then he would not have required treatment. He was not receiving that treatment before the injury and was working without significant impairment. So, there would be no need for that treatment.
Dr Samuell stated that when he saw the plaintiff, he did not have a disability from depression and anxiety whereas Dr Khan said that he had seen the plaintiff more recently than Dr Samuell and that he had certainly presented with significant disability associated with his psychiatric condition.
Dr Khan’s diagnosis in his first report was PTSD and an opioid-use disorder, and by the second report, Dr Khan also diagnosed a persistent depressive disorder. Dr Khan further explained:

Dr Khan correctly, in my view, emphasised that any pre-existing opioid use disorder had never affected the plaintiff’s attendance at work. In addition, as he noted, even though the plaintiff had reported bullying for a number of years, neither that, nor any difficulties with his mood, had affected his attendance at work.
I found Dr Samuell to be an unimpressive witness. He was combative and refused to make logical concessions. His conclusion that there was no material difference in the plaintiff’s mental health before or after the subject accident was clearly at odds with the overwhelming bulk of the medical evidence in the case, as well as the plaintiff’s work performance. Further, his opinions were ultimately inconsistent, noting in his report that the plaintiff’s prognosis was apparently strongly positive (at [424]), whereas in the conclave report he stated that given his long-term complaints, one could reasonably expect ongoing similar symptoms at a similar level of disability (at [434]). I agree with the plaintiff’s submission that Dr Samuell’s opinion was based on a highly selective review of the documentation and failed to grapple with the consistent work record of the plaintiff prior to the accident.
I accept the evidence of Dr Khan that prescriptions of antidepressants prior to the accident were largely explicable in the context of chronic pain. The evidence Dr Khan gave of the dramatic increase in opioid medication following the accident on 6 August 2019 was detailed and uncontradicted, and I find that the aggravation of his pre-existing opioid use disorder added to his functional disability. I find that while the plaintiff had experienced intermittent difficulties with his mood at various stages in his life, he did not previously suffer from a mood disorder, and that other than a pre-existing opioid use disorder (which did not disrupt his work performance), he did not suffer from any other psychiatric/psychological condition or injury prior to the accident.
As noted by the plaintiff in his submissions, Dr Khan’s opinion that the plaintiff’s constant pain was not only causative of the plaintiff’s psychological injury, but an impediment to any improvement or recovery from that psychological injury, was echoed in the plaintiff’s evidentiary statement. I agree with that submission.
In oral submissions, Visy pointed to one entry from the plaintiff’s GP on 5 February 2020, where it was recorded by Dr Kim:

Visy contended that it was clear that the plaintiff’s work came to an end at DME not because of the neck injury but because of the issue of bullying at work. Up until that time, Visy submitted that the plaintiff had been able to modify his duties to cope with his physical issues. Visy submitted that any psychological issue suffered by the plaintiff had therefore been caused by DME and not by any conduct of Visy.
However, Visy’s submissions do not accurately reflect the totality of the evidence. Whilst it is true that the evidence shows that the plaintiff was initially able to work after the accident, it was in a restricted physical capacity (that is, he was still undertaking his supervisory role but was unable to do the physical on-call and break-down work). That restricted role was brought to an end by DME. That can be seen clearly from the emails exchanged at [292]ff. Further, whilst I find that the plaintiff clearly wanted to stay on at the Paper Mill in a restricted capacity (which was not made available to him), when the plaintiff was locked out of the Paper Mill by DME, the work DME offered to the plaintiff in the DME Tumut workshop was not suitable for his physical capacity. That situation, together with the disrespectful or bullying attitude shown to him (at least in part because of his inability to do the on-call work and breakdown work), the breakdown in communication between DME and the plaintiff, the “death threat”, and the plaintiff’s unresolved high level of pain as a result of the accident leading to a significant increase in his pain relief medication all appeared to contribute to the plaintiff’s deteriorating mental state.
I find, on the basis of Dr Khan’s careful and nuanced analysis of the material, that although the plaintiff initially stopped working due to his work-related physical injury, his psychiatric/psychological issues have remained a significant contributing factor to his total incapacity to work to date and his ongoing total incapacity to work. Whilst the behaviour of DME towards the plaintiff prior to the accident upset the plaintiff, that problematic relationship never got to the point of affecting his work performance or attendance.
I find that the plaintiff’s condition following the accident arises from a complex interplay between the plaintiff’s physical injuries, a resultant significant increase in pain relief medication, and the further deterioration of an already difficult relationship with DME. No one factor can be disentangled from any other. I accept the evidence of Dr Khan that the plaintiff now suffers from a persistent depressive disorder, along with PTSD and an opioid abuse disorder. Whilst he had a pre-existing opioid use disorder, that had never affected the plaintiff’s attendance or performance at work. Whilst he had mood fluctuations, I accept Dr Khan’s evidence that he did not previously suffer from a depressive disorder, nor from PTSD. Whilst he had a difficult relationship with DME, it had never affected his work attendance or performance and he otherwise enjoyed working.

The plaintiff contends that given the following matters, the appropriate award is 60% of a most extreme case:
The injuries and disabilities resulting from the accident have altered the course of his life. Prior to the accident, the plaintiff worked full-time as a boilermaker without restriction, including heavy manual work; he could drive without limitation and was able to tend to his large property. He used to go fishing, enjoyed gardening and socialising with friends. Both he and his estranged wife indicated that the plaintiff was active and motivated by his career.
The collision with the pipe caused the plaintiff to suffer both physical and psychological injuries.
Despite undergoing extensive treatment, the plaintiff still has pain in his neck and arms and has limitations including an inability to drive anything other than short distances.
The plaintiff’s medication to treat his physical and psychological issues make him drowsy and cause difficulties with concentration.
As observed by the plaintiff’s family, the plaintiff used to be an upbeat person, especially around family and friends. Dr Khan assessed the plaintiff’s persistent depressive disorder as at 31 May 2024 and noted that the plaintiff experienced the symptoms of depression, anxiety, feelings of hopelessness and worthlessness, reduced motivation and energy, disinterest in activities, social withdrawal, sleep disturbance, impaired attention, impaired concentration and memory, and impaired self-confidence, self-esteem and self-identity.
The medical evidence shows that the plaintiff’s pain symptoms will not resolve and may deteriorate.
Having seen the plaintiff give evidence including being vigorously cross-examined, and having assessed the whole of the evidence against the plaintiff, I did not assess the plaintiff as having exaggerated his symptoms. Further, whilst the evidence of the plaintiff’s estranged wife and his daughter was not especially precise, the overwhelming impression of their evidence was that they both observed a marked negative change in the plaintiff following the accident.
I do find, however, that the plaintiff downplayed, to a degree, the extent of any pre-injury lack of enjoyment with life. I note that he agreed in cross-examination that he had been depressed at various times prior to the accident, and that at times prior to August 2019 he was contemplating (albeit not acting on) leaving his marriage or at least being unfaithful. Overall, however, these subjective feelings did not impair his overall ability to socialise, stay married, or look after his house and large garden.
I take into account that some of the distress suffered by the plaintiff related to the marked breakdown in the relationship between him and DME which started well before the accident, and was related to the plaintiff’s opioid use. It was perceived by the plaintiff to be bullying. This more long-standing issue contributed to the plaintiff’s psychological condition to a limited extent and likely partly informed his reaction to the death threat.
Visy highlighted the pre-existing opiate use disorder and fact that the PTSD was related to a death threat believed to have been associated with DME. Visy submitted that damages for non-economic loss should be assessed at 28% of a most extreme case.
Importantly, however, until the accident, neither the opiate use disorder, nor the perceived bullying, affected the plaintiff’s day-to-day attendance at work, nor did it disrupt his home life to any great extent. Subject to my observations above at [479], overall, until the accident, he was able to largely enjoy looking after his home, especially the grounds, and socialise with friends and family. He looked forward to contributing to the community as a full-time worker until retirement age or beyond. Since the accident he has suffered from ongoing pain, only being able to drive for short distances, and the medication for his physical and psychological issues makes him drowsy and causes difficulties with concentration. The plaintiff’s pain symptoms will continue and may deteriorate, and his psychiatric prognosis is poor, particularly to the extent it is associated with chronic pain.
Taking into account the whole of the evidence, I have concluded that the physical and psychological injuries suffered by the plaintiff as a result of the accident entitle him to an award for non-economic loss assessed to be 45**% of a most** extreme case (s 16 CLA).

As noted above, the plaintiff lives on a large property, now five acres in size, requiring significant care and maintenance. The plaintiff submits he had been able to perform all the work around the home and garden prior to his injury, and as a result of his injuries he is no longer able to perform most domestic tasks and requires assistance.
The following summary of the evidence is relevant to both past and future domestic assistance.
It is clear on the evidence that prior to the accident the plaintiff spent time maintaining the lawns and taking out the bins for collection, and assisted with heavy shopping. However, there was some considerable vagueness in the evidence, especially to the extent to which the plaintiff was responsible for domestic tasks inside the home prior to the accident, and if so, how much time he spent on those inside tasks.
The evidence from the Ms Smith (the plaintiff’s estranged wife) and Ms Cooper (his daughter) was imprecise, and at times contradictory. Just as one example, Ms Smith stated in her evidence at one point that before the accident she and the plaintiff shared the cooking. At a later point, she stated that before the accident she did the cooking but that he would “help a bit”. Again, at another time, Ms Smith stated, “I probably did most of it”.
Ms Smith also agreed when asked if the plaintiff was “quite capable of, for example, sweeping, vacuuming, doing things like that around the house” she replied, “I think so, yep”.
Further, Ms Cooper was only 19 or 20 years old immediately prior to the accident. Her claim that prior to the accident he “used to do just everything” does not sit well with either the plaintiff or Ms Smith’s evidence. Further, at another stage in her evidence, (perhaps more accurately) Ms Cooper stated that since August 2019 the plaintiff “doesn’t do all the lawns and everything that he used to do, all the heavy lifting”. It can further be noted that in cross-examination, Ms Cooper agreed that between August 2019 through to 2022 when she moved out, the plaintiff was quite capable of doing the lighter tasks around the house.
The occupational therapist relied upon by the plaintiff, Ms Karen Chan, was not available for cross-examination, and I permitted the tender of her report over objection. The occupational therapist relied upon by Visy was Ms Deborah Hammond.
In her report dated August 2022, Ms Chan recorded that prior to the accident, the plaintiff would share the following domestic tasks with his wife: Food preparation and cooking; washing the dishes and cleaning the kitchen after cooking; changing bed sheets; loading and unloading the washing machine and hanging laundry items on the clothesline; vacuuming; mopping; scrubbing; shopping for groceries and caring for two pet dogs including feeding and bathing. The plaintiff was also responsible for wheeling the garbage bins for garbage collection; washing the two family cars; performing general home/property maintenance, including maintenance of the outdoor area; gardening (cutting, hedging and whipper snipping); and mowing using a ride-on lawn mower.
Ms Chan stated that after the accident, the plaintiff stated he was independent in personal care, but not able to carry out most of his pre-injury domestic responsibilities due to his physical limitations. He was able to assist with simple food preparation and cooking; loading and unloading the washing machine and using a trolley to carry laundry items to the clothesline; and feeding the dogs. The plaintiff stated that his wife had taken over some of his pre-injury domestic responsibilities including cooking, washing the dishes and cleaning the kitchen after cooking; changing bed sheets; grocery shopping and washing her own car. The plaintiff’s two sons assisted with trimming and cutting when they could. The plaintiff received domestic cleaning services for two hours a week and gardening services once a month funded by his workers’ compensation insurer.
However, later in her report, Ms Chan listed a number of tasks that the plaintiff was expected to have difficulties performing which included some of those identified by the plaintiff, but not all. It was the heavier, more physically demanding tasks as well as the more awkward physical tasks which she listed. I note that she did not include cooking, cleaning the kitchen after cooking or washing up as tasks with which the plaintiff was expected to have difficulties.
As to his past personal, domestic and other care needs, Ms Chan’s recommendations were made on the basis of the available medical information, his presentation on the day of the assessment, his self-report and the results obtained independently from the assessment:
From 6 August 2019 (date of injury) to 24 February 2020, the plaintiff received gratuitous domestic care assistance from his family specified as a total of 830 minutes per week of various named domestic tasks plus 30 minutes of gratuitous transport assistance.
From 25 February **2020 (**date of decompression and disc replacement surgery) to 31 May 2020, for the first two days the plaintiff was hospitalised before being discharged home to the care of his wife. Then the plaintiff received gratuitous domestic care assistance specified as a total of 1005 minutes per week of various named domestic tasks plus 60 minutes of gratuitous transport assistance.
From 1 June 2020 to 17 June 2022 (the day of assessment), the plaintiff received gratuitous domestic care assistance for a total of 455 minutes per week.
In regard to future domestic care and independent living needs, Ms Chan stated that should the plaintiff respond favourably to the rehabilitation services recommended by her, ongoing commercial domestic assistance of 360 minutes per week, indefinitely was recommended covering: vacuuming, mopping, scrubbing; mowing, trimming and hedging, pet care and home and property maintenance. Ms Chan also stated that the plaintiff requires home grocery delivery services on a weekly basis and car washing on a monthly basis**.**
Ms Chan assessed the plaintiff again in May 2024 and prepared a report in June 2024. In this report, Ms Chan stated that the plaintiff had informed him that before the subject incident his wife and two of their children were involved in a serious motor vehicle accident as a result of which his wife has a fused ankle which continues to restrict her mobility to this day. Consequently, the plaintiff stated that he had to contribute additional assistance with domestic chores to alleviate his wife’s responsibilities until his own injury occurred.
From 1 July 2022 to the date the report was prepared, Ms Chan considered the total amount of gratuitous domestic care assistance was 395 minutes per week(noting that the plaintiff advised that he receives domestic cleaning services for two hours a week and gardening services either once a week or fortnightly funded by his workers’ compensation insurer).
As to future domestic care and independent living needs, Ms Chan opined that if the plaintiff responded favourably to the rehabilitation services recommended by her, he would need 365 minutes per week of ongoing commercial domestic assistance indefinitely (that is, just over 6 hours per week). Of that, the vast bulk was for gardening, pet care, and home and property maintenance (330 minutes). He also required shopping assistance for heavy grocery item delivery and car washing assistance, both once per month.
Ms Chan commented on the report of Ms Hammond, and noted that she had taken a different history from the plaintiff. Ms Chan also noted that she had taken into account Dr Bodel’s assessment of 5 July 2022 which noted that the plaintiff required “domestic assistance for heavy household maintenance and cleaning activities. This is likely to be required indefinitely.”
Ms Hammond assessed the plaintiff on behalf of Visy at his residence on 26 May 2023. Her report was dated 6 November 2023. She was initially required by the plaintiff for cross-examination and arrangements were made for her to give evidence at 2:00pm on 17 December 2025. Late on 15 December 2025, Visy’s solicitors were advised that the plaintiff no longer required her for cross-examination. Visy submits that her evidence is now unchallenged by the plaintiff and should be accepted in its entirety by the Court. Ms Hammond opined that the plaintiff required minimal past domestic assistance, required no future domestic assistance at all and that the neck injury had not led to any reduction in his ability in undertaking domestic chores in and outside his home.
In short, she noted:
As to past care, gratuitous care was provided to the plaintiff for four weeks. Two hours per week were for lawns, provided by his family during his acute soft tissue recovery period and 0.5 hours per week for vacuuming by his family.
As to current and future care, allied health care was recommended. The plaintiff would benefit from a multidisciplinary pain management program available on referral from his GP; and psychological intervention as recommended by specialists.
In the body of the report Ms Hammond noted that the plaintiff has “no compulsion to participate in domestic activities as the insurer continues to pay for a cleaning and lawn mowing service”.
Ms Hammond noted that prior to the incident, the plaintiff was primarily responsible for external property maintenance, including mowing lawns and pruning the garden as required. She further noted, in the body of the report, that the insurer funded continuing lawn mowing services and occasional garden assistance services post-incident. Ms Hammond noted that internally the home was maintained by his wife, and the standard of presentation was high.
Ms Hammond opined that the plaintiff does not require domestic services, as he has the “functional capacity” to engage in domestic services in a paced manner “and it is therapeutic for him to do so”.
Although she assessed the plaintiff at his home and therefore saw the size of the property (including the gardens), she opined that the plaintiff had capacity to participate in domestic activities and lawn mowing from four weeks post-incident. It is not clear to me how she came to this opinion. The undertone of this report was that the plaintiff was simply lacking motivation and not trying hard enough. For instance, she stated at 3.2.1, (and in similar terms at 3.3.1) in relation to his previous domestic activities, that in her opinion “he had capacity to engage in his previous domestic activities in a paced manner. However, as these services continue to be funded, thus he has had little compulsion to resume his pre-incident activities”.
Ms Hammond set out her opinion that the performance of activities of daily living is essential for his continuing pain rehabilitation, general conditioning and mental health. She stated “[a]ctive participation in appropriate everyday activities in the home and community should be part of a person’s rehabilitation. … The avoidance of appropriate activity can increase the perception of pain and disability through general debilitation, increasing the risk of exacerbation, secondary discomfort, and declining physical and mental health.” Whilst these views may be genuinely held, I see no reference to her understanding of his level of pain relief post incident.
I note that one of the experts relied upon in Ms Hammond’s report at p20ff (Dr Vidyasagar Casikar, consultant neurosurgeon) had provided a report on 5 May 2023 which was not in evidence before me. He had apparently opined that the alleged injury did not cause any acceleration of the cervical pathology as the neurological examination has remained normal. He was also of the view, apparently, that the cervical disc replacement treatment by Dr Ow-Yang “was not reasonably necessary”. I have no material before me which explains why he has come to this view, which is an outlier view. He further apparently opined that the only further treatment required was input from a psychologist and psychiatrist. The plaintiff contends that Ms Hammond’s opinions as to the plaintiff’s functional needs are based on a false premise and should be rejected.
Ms Hammond commented on Ms Chan’s report and noted that she did not have access to some of the material to which Ms Chan had access. Ms Hammond noted that Ms Chan had not considered the therapeutic benefit of his continued engagement in domestic activities for his ongoing physical and mental rehabilitation, and had recommended services on the basis that he reports continuing discomfort.
Ms Hammond opined that Ms Chan had overestimated the time the plaintiff spent on outdoor activities.
Ms Hammond set out her opinion in relation to Ms Chan’s recommendations as to his past care. She disagreed with most of Ms Chan’s recommendations on the basis that much of the past work was done by the plaintiff’s wife. She agreed that he had previously vacuumed weekly and allowed 0.5 hours per week for four weeks during his acute recovery. She allowed eight hours per month for gardening, home maintenance, spraying, inspection/repairs on property (during his acute recovery). She was of the view that car washing was unnecessary, and pet care was not covered under the CLA. She opined that the cattle tending was overestimated, and that he did not require transport assistance given he continued to drive or his insurer funded his travel for medical and treatment related appointments.
As to the plaintiff’s future care, Ms Hammond disagreed with all of Ms Chan’s recommendations, opining that the plaintiff has the functional capacity to participate in domestic activities and it is therapeutic for him to do so, to contribute to his ongoing rehabilitation and return to work. Ms Hammond also disagreed with much of Ms Chan’s assessment of future treatment programs for the plaintiff. Ms Hammond, however, agreed with Ms Chan’s recommendations about future psychological intervention and multidisciplinary pain management.
As noted above, the orthopaedic experts agreed that the plaintiff “probably” required domestic assistance including household maintenance and cleaning activities, however, noted that the need for assistance should be formally assessed by an occupational therapist to determine past, present and future needs.
I note too that Dr Khan opined that domestic assistance was required because of the plaintiff’s lack of motivation and energy.
I note that the insurer has paid for household cleaning and gardening services. The plaintiff submits, and I accept, that this is evidence of a recognised need for such services and constitutes an admission. However, it does not assist in determining the s 15(3) CLA threshold issue.
The highest the evidence gets is that of Ms Chan. However, she was not the subject of cross-examination, was not available for a conclave, and it is appropriate to treat her evidence with great caution. This aspect of her evidence is undermined by the evidence of the plaintiff’s wife and daughter, and is inconsistent with that of Ms Hammond.
I accept neither the evidence of Ms Chan nor Ms Hammond in full. I accept that the plaintiff required some domestic assistance and will in the future. However, neither the underlying factual material relied upon by Ms Chan nor Ms Hammond is entirely reliable when compared to other evidence available to the Court. As stated above, I am unable to get a clear picture of the number of hours of inside domestic work the plaintiff provided prior to the accident and how that changed following it. I accept that the grounds of his house are large, which requires lawnmowing, and that his ongoing neck condition makes it unviable for him to do the lawnmowing, but again, it is not clear precisely how much per week.
I am of the view that there is insufficient evidence to the relevant standard to support a claim that past gratuitous domestic assistance meets the threshold under the CLA.
In my view, however, it is appropriate to allow for the past commercially funded domestic services which as at 16 December 2025 amounted to $48,476.51**.**

The plaintiff contends that he will continue to incur medical and related expenses in the future.
As to his psychological injuries, as noted, Dr Khan’s opinion as to the plaintiff’s prognosis is poor. He opined that the plaintiff requires the following future psychological and psychiatric treatment solely due to the subject incident:
Regular follow-up appointments with a general practitioner at a frequency of every four weeks for at least a further three years for review of his mental state, review of his psychotropic medications, management of his opioid use disorder, and counselling;
Regular follow-up appointments with a psychologist at a frequency of every two to three weeks for at least a further two years for psychological therapy;
Regular follow-up appointments with a psychiatrist with expertise in addictions at a frequency of every four to six weeks for at least a further two years for review of his mental state, management of his opioid use disorder and review of his psychotropic medications;
Ongoing long-term adherence with psychotropic medications as clinically indicated; and
Consideration of referral for day patient private psychiatric hospital trauma and/or mood/anxiety and/or addiction programs for weekly group psychotherapy for at least six months.
As noted above at [444], in answer to Dr Samuell’s opinion that the plaintiff did not require future psychological/psychiatric treatment solely due to the incident because of the “bleak prognosis” offered by Dr Khan, Dr Khan stated that treatment of chronic psychiatric/psychological conditions routinely persists long-term to ensure the condition remains stable and does not deteriorate significantly. Dr Khan also reiterated that that Dr Samuell was not an expert in addiction psychiatry or addiction medicine, and was thus not the most qualified expert to comment on the plaintiff’s ongoing treatment requirements with respect to his psychiatric and addictive disorder.
I have earlier indicated that I find Dr Samuell’s assessment problematic. This includes my lack of acceptance of Dr Samuell’s view that the plaintiff’s current psychological problems are not related to the incident.
As to his physical injuries, the orthopaedic experts agreed that the plaintiff requires access to his GP to review his levels of pain, and a referral to an appropriate specialist in the event his condition deteriorates. The plaintiff contends that the suggested frequency of twice a year does not allow for regular attendances for the purposes of obtaining prescriptions for pain medication. It is submitted this would require a consultation more than once every six months.
As to the treatment detailed in the plaintiff’s Amended Statement of Particulars, the plaintiff noted that the orthopaedic experts stated that the items listed “do not have any medical validity to those exact quantums [sic] or quantities”. The plaintiff submitted that this statement emphasises the inexact method a court must often use to try and quantify future expenses.
The plaintiff has also drawn attention to his statement that since he ceased physiotherapy treatment in 2024, he has noticed an increase in his neck symptoms.
The plaintiff submits that the orthopaedic experts agree that the plaintiff’s prognosis is fair or poor, and there could be deterioration in his physical condition. The plaintiff relies upon Ms Chan’s details of treatment and rehabilitation services that would assist in the plaintiff in coping with his injuries. She lists:
Physical treatment (one physical treatment session per fortnight guided by medical specialists);
A supervised physical conditioning and exercise program;
A multidisciplinary pain management program;
Psychological intervention; and
Occupational therapy services (to promote self-management strategies, to prescribe aids and equipment, and to advise on work simplification and home ergonomics (in the amount of five hours) to promote an increased level of independence). I note this is a one-off service.
In my view, this aspect of Ms Chan’s proposals are reasonable and appropriate and should be provided for in the final outcome. There should be an allowance for future physical therapy and treatment in accordance with the plaintiff’s Schedule of Damages.
In summary, I accept Dr Khan’s evidence as to his future treatment needs. I also accept Karen Chan’s assessment relating to his future needs and for aids and equipment. The total amount is $184,956.71.

The plaintiff’s educational qualifications include his school certificate and some trade certificates. His vocational training, background and experience is entirely in manual, physical work, albeit in latter years, involving inspection and supervisory work.
As noted above, following the subject injury, the plaintiff continued to work for DME in his usual role, with the exception of on-call or breakdown work because of its heavy physical nature. He last worked on 22 November 2019. Following his surgery in February 2020, his then GP Dr Kim certified the plaintiff as having no capacity to work, and he has continued to be certified as having no capacity since then. The plaintiff’s employment was terminated by DME in January 2021.
The plaintiff has received, and continues to receive, workers compensation for his incapacity to work.
I accept the plaintiff’s evidence that but for the injuries received as a result of the accident on 6 August 2019, it was the plaintiff’s intention to continuing working at least until retirement age.
There is no doubt that the plaintiff has no capacity for his pre-injury work. As to his capacity to work at all in the future, it is necessary to assess this in light of both the orthopaedic evidence and the psychiatric evidence.
The orthopaedic experts agreed at conclave that the plaintiff is permanently unfit for heavy labouring duties, but they agreed he was clinically fit for permanently modified duties, particularly avoiding strenuous or repetitive tasks with both arms, particularly those that are overhead, and no greater than 10kg levels.
The plaintiff submits that while he may have some theoretical physical capacity, albeit very restricted, he is prevented from working by his psychological injury and his need for very high doses of pain medication. The plaintiff argues that the Court would be satisfied that the plaintiff is totally and permanently incapacitated for any work.
Visy submits that the plaintiff’s inability to work is simply based on the plaintiff’s belief that he is incapable of working which “[does not] sound in damages”. Visy points to a note recorded by the Riverina Psychology Practice on 19 March 2021 in the following terms: “He feels he couldn’t work as an employee ever again after years of bullying at work” (emphasis added). Visy further submits that the plaintiff has not looked for suitable work which would by all accounts assist his psychological condition and that he has a number of transferable skills which would be highly valued by employers.
Visy’s submission, however, in my view, over-emphasises a small piece of evidence, and fails to factor in the vast bulk of the other combined evidence, including the plaintiff’s use of medication as set out above at [540].
Where the plaintiff, as in this case, has established that he is incapable of performing his pre-injury occupation, the onus shifts to the defendants to establish that the plaintiff has a residual earning capacity and, if so, what that is in real world, practical terms. Notwithstanding a theoretical ability to perform certain jobs, there must be a practical assessment of the likelihood of the plaintiff in fact obtaining such a job: Mead v Kerney [2012] NSWCA 215 at [24]-[25].
With respect to DME, I accept that the fact that the insurer Employers Mutual Limited (EML) is paying the plaintiff compensation for his total incapacity to work constitutes an admission that the plaintiff is in fact totally incapacitated for work as a result of the injury he received in the course of his employment. The onus then falls upon DME to establish that there is any other reason for continuing such payments other than incapacity for work during the relevant period.
In its written submissions, DME concedes the medical evidence is consistent with the plaintiff’s case of an incapacity to return to his former employment. DME further submits that:

Dr Ting recorded that the plaintiff had stated that if he had not been injured, he would have continued to work with DME, aspiring to advance his role to work as a full-time maintenance supervisor. When asked to think about his future, he could not consider work due to his pain and restrictions.
Dr Ting noted that certain questionnaire scores were markedly different from 2022, evidencing a deterioration in his psychological condition, and reported that the plaintiff did “not demonstrate a marketable functional work capacity and [exhibited] a very restricted physical capacity to perform modified sedentary work.” Dr Ting considered the plaintiff may be suitable for part-time work as a counter attendant or crossing supervisor but there were no such positions with a 25km radius of Tumut.
I note that DME arranged for the plaintiff to attend upon Dr Mpho Banda, a consultant occupational physician, on 21 December 2020. This report was ultimately tendered by Visy at the hearing. Dr Banda stated that given the persistent residual symptoms, the plaintiff’s prognosis is guarded. He noted that according to the plaintiff’s general practitioner and neurologist, Dr Ow-Yang, the plaintiff had reached maximum medical improvement with stability of symptoms, and further noted “[u]nfortunately the treatment has not been effective in controlling his pain and neurologic symptoms in [his] arms”. He was of the opinion that the plaintiff was unfit to return to the inherent requirements of his role, and recommended a functional capacity evaluation and a vocational assessment to identify suitable roles for him.
Dr Banda noted the plaintiff’s permanent restrictions as: Prolonged sitting for more than 20 minutes; working above shoulder height; repetitive handling with upper limbs; prolonged standing for greater than 30 minutes; lifting and carrying above 10kg; pushing/pulling; tasks involving constant walking on even surfaces; and light lifting/carrying of 0-10kg.
Visy arranged for the plaintiff to be assessed by Dr Inez Farag, physiotherapist, and Dr Matthew Henricks, vocational psychologist, on 3 May 2023. I agree with the plaintiff’s submission that it is clear that Dr Farag did not appreciate or account for the plaintiff’s psychological injuries or the sedative effect of the marked increase in analgesic medication. Dr Farag noted the benefits of “strengths-based motivational counselling”, and the opportunities for flexible working arrangements, working from home and “gig-based work”. She purported to opine, even though she is a physiotherapist, that returning to work would help support improved self-efficacy, give him a sense of purpose and “distract him from his existing problems”. I agree with the plaintiff’s submission that it is unrealistic to suggest that the plaintiff could find gainful employment on the open labour market, never having worked in a sedentary or office capacity, under the sedative effects of opioids, or that he would be a realistic candidate in the open job market for “gig-based work”.
Dr Farag assessed that the plaintiff is considered capable of sedentary and semi-sedentary work categories, taking into account his demonstrated restrictions: weighted elevated work, kneeling, crouching, sustained flexion in standing, lifting from floor level, horizontal lifting, lifting above shoulder level, left hand carry and right hand carry.
Dr Henricks opined about a number of vocational options suitable for the plaintiff but explicitly stated that he did not consider the plaintiff’s self-reported physical limitations as that was beyond his expertise. The options suggested (some requiring additional training) included maintenance planner, sales representative or order clerk for building and plumbing supplies, information officer (for building, maintenance, milling, mining etc), metallurgical or materials technician, construction estimator, and accounts clerk.
In the Labour Market Analysis report prepared by Ms Liz Atteya (a rehabilitation counsellor, with legal and social work qualifications and vocational assessor accreditation) it was noted that the potential for the plaintiff to secure work in his local labour market is currently restricted. Ms Atteya noted one vacancy for a maintenance planner and no vacancies for an order clerk in building supplies, an information officer, and a sales representative. I agree with the plaintiff’s submission that the lack of real world jobs for which he would be competing against able-bodied members of the open labour market tells against him having any real residual earning capacity. Further, Ms Atteya was assuming that the plaintiff could drive up to 30 minutes from Tumut, when that is not the case.
In conclave, there remained significant disagreement between Dr Ting on the one hand, and Drs Farag and Henricks on the other. I agree with the plaintiff’s submissions that the reliance by Drs Farag and Henricks placed inappropriate weight on the plaintiff continuing to work after the injury and that he only stopped once it became clear he would be moved from the Paper Mill. I agree that they failed to properly account for the plaintiff’s increase in pain over the ensuing days and months after the accident, and the significant increase in the plaintiff’s pain medication, and further did not account for the certified restrictions on the plaintiff’s ability to undertake on-call and breakdown work.
Dr Ting noted his six 2024 recommendations, including vocational retraining to improve the plaintiff’s functional work capacity. He stated if the plaintiff responds favourably to the recommended interventions and treatments, he may be able to consider casual or part-time work that aligns with his restrictions and skill sets. However, he stated:

Smith v Visy Pulp and Paper Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

The hearing

The accident on 6 August 2019

The plaintiff’s account

Evidence from the plaintiff’s family

Evidence of Ms Lynda Smith – the plaintiff’s wife

Evidence of Ms Michaela Cooper – the plaintiff’s daughter

Witnesses called by Visy

Mr Troy Watling

Mr Grant Crosley

Mr John Medland

The metal pipe and pipe elbow

Trip hazards in the walkway

After the accident

No expert liability evidence

Findings in relation to the metal pipe and the accident

Liability of the defendants

Liability of DME

DME’s duty of care

Foreseeability of the risk of injury

Breach of duty of care

Conclusion as to DME’s liability

Liability of Visy

Did Visy owe a duty of care to the plaintiff?

The relevant risk of harm

Sections 5B and 5C of the CLA

Was the risk foreseeable?

Magnitude of the risk

The precautions a reasonable person in Visy’s position would have taken

Conclusion as to Visy’s liability

Question of contributory negligence

Apportionment of liability between DME and Visy

First Cross-claim

Second Cross-claim

Indemnity

Damages

What occurred in relation to the plaintiff’s work following 6 August 2019?

The plaintiff’s injuries

Cross-examination of the plaintiff on behalf of Visy

Cross-examination of the plaintiff on behalf of DME

Re-examination of the plaintiff about what occurred after the accident

Experts as to Damages

Orthopaedic evidence

Dr James Bodel

Dr John Bentivoglio

Dr Greggory Burrow

Orthopaedic Conclave Report 15 November 2024

The plaintiff’s prior back injury

Psychiatric evidence

Dr Samuell’s 2023 report

Dr Khan’s 2024 report

Psychiatric Conclave report

Evidence before me

Consideration of the psychiatric evidence

Findings as to damages

General observations

Non-economic loss

Care and assistance

Past domestic assistance

Future commercial domestic assistance

Out of pocket expenses

Past Treatment expenses

Future out of pocket expenses

Economic loss/loss of earning capacity

Damages pursuant to Fox v Wood

Work injury damages payable by DME

1987 Act amount of contribution between tortfeasors

Conclusion

Orders

Parties