State of New South Wales v Charter Hall Retail Management Limited

District Court of NSW|2018-12-06

Introduction

This is a recovery action pursuant to section 151Z Workers Compensation Act 1987.
The plaintiff seeks to recover compensation payments made to the injured worker, Mark McMullen, in relation to an injury sustained by him at work on 22 January 2007 at the Metro Plaza Shopping Centre in Orange (the Shopping Centre). On that date Mr McMullen was a member of the Fire Brigade and by operation of section 69(2) Fire Brigades Act 1989, an employee of the plaintiff. He attended the Shopping Centre in answer to a fire alarm and was injured when an unrestrained steel locking bar used to secure an access door to the roof fell and struck him on the neck whilst he was descending the ladder used to reach the door.
The Shopping Centre was an asset of a trust of which the first defendant was the Responsible Entity. Perpetual Limited (Perpetual) had been appointed by the first defendant as the Custodian of the assets of the Trust. The first defendant entered into a written agreement with Perpetual to assume responsibility for the acts and omissions of Perpetual as the owner of the Shopping Centre. It was conceded by the first defendant that it was the owner of the Shopping Centre.
The second defendant was one of two joint managers of the Shopping Centre between 1 January 2007 and 31 January 2007. The other joint manager has been deregistered. The second defendant was appointed by Macquarie Asset Services Ltd, which was described as the 'Principal' in the Management Agreement dated in or about December 2006 (the MA).
The plaintiff alleges that the incident that led to Mr McMullen's injuries was the result of the negligence of the defendants. If that is established then the plaintiff is entitled to an indemnity for the amounts paid to Mr McMullen to a limit of a notional assessment of damages.
These proceedings were commenced on 22 December 2017 and the indemnity action is limited to the payments received from 22 December 2011 onwards, by operation of sections 14(1)(d) and 63 Limitation Act 1969.

Evidence of Mark McMullen and Medical Evidence relating to Mr McMullen's Condition

The plaintiff called Mr McMullen to give evidence and he was cross-examined. The plaintiff also tendered a bundle of medical reports relating to Mr McMullen's injuries and disabilities arising from the incident on 22 January 2007.
Mr McMullen was born in Dubbo on 19 March 1969. He completed the Higher School Certificate and then joined the Royal Australian Air Force (RAAF) where he worked as a firefighter for about nine years.
On 1 February 2000 Mr McMullen left the RAAF and took up a position as a retained firefighter with Fire & Rescue NSW (FRNSW). As a retained firefighter he was on call and not in permanent employment. He received training whilst he was working as a firefighter in the RAAF and after he was retained by FRNSW. That training included undertaking risk assessments for work that he was required to do from time to time. Mr McMullen was taught to assess a situation and to identify any risks involved in a task. Firefighters always operated in pairs and it was appropriate to take into account the opinion of co-workers, senior firefighters and the station officer.
When Mr McMullen first started as a retained firefighter with FRNSW he was working at Northparkes Mines which was part of the Rio Tinto Group. He was employed as the Mines' Emergency Service Coordinator between 2001 and 2005.
In about 2005 Mr McMullan applied for a full time position as a permanent firefighter with FRNSW. He was required to undergo a medical examination to certify that he was fit to perform the duties of a firefighter. Previous injuries to his thumb, ankle and knees were disclosed and did not prevent him from passing this examination. He commenced work as a permanent firefighter on 16 September 2005.
Mr McMullen was first stationed at Cranebrook Fire Station. At the time he was living in Dubbo and would commute to and from Cranebrook for work. He was divorced and had two children living in Dubbo.
In or about late December 2006 he was offered a position at Orange Fire Station, which he accepted. He worked two 10 hour day shifts followed by two 14 hour night shifts and then had four days off. There was a 24 hour break between the second day shift and the first night shift.
When Mr McMullen started at Orange Fire Station in December 2006 he was fairly fit, without any problems in his neck or knees.
On 22 January 2007 he was called out to respond to a fire alarm at the Shopping Centre. Paul Collis was the station officer on the crew that attended to that call. There were four or five crew on the fire truck including the station officer. Mr McMullen, Mr Collis and another firefighter went to the fire panel in the Centre Management office. Mr McMullen and the other firefighter were wearing breathing apparatus in preparation to respond to a potential fire. The breathing apparatus consisted of a back plate connected to an air cylinder and a harness. It was strapped on over his shoulders and had a breathing mask attached to it. The breathing mask was supported by a lanyard that hung around the firefighter's neck. There was a limited amount of air in the cylinder so the mask was not worn unless it was necessary to do so. Mr McMullen was also wearing a helmet and carrying either a sledge axe or a Halligan tool. A Halligan tool is a metallic tool used to break windows, jamb doors open or prize things open.
After looking at the fire panel it was necessary to check the air conditioning unit on the roof of the Shopping Centre. Mr McMullen and the other firefighter were escorted to the roof access door by a security guard. The access door was at the top of a ladder. Mr McMullen described the ladder as about 8 feet in height and constructed of steel. The door had a metal locking bar in front of it, which had to be lifted in order to open the door and gain access to the roof. The locking bar was a square steel tube, approximately one inch thick, hinged on one side about 25 mm off the door jamb. After it had been raised, it was leant against the wall and the access door could be opened. The access door opened outwards. After the door had been opened it was possible to step out onto the roof from the top of the ladder.
The security guard climbed the ladder and opened the door. In doing so he moved the locking bar and leant it against the wall on the left hand side of the door. The security guard then stepped out onto the roof. Mr McMullen could not remember the identity of the other firefighter who was present on the day. Mr McMullen recalled that both firefighters went up the ladder, through the access door and onto the roof in order to check the air conditioning unit. Mr McMullen was satisfied there was no fire in the air conditioning unit and that it was a false alarm. The firefighters communicated with Mr Collis via the radio, so that the fire panel could be reset. The firefighters waited at the air conditioning unit to ensure that the reset of the fire panel was successful.
When leaving the roof the other firefighter went through the access door and down the ladder first. Mr McMullen followed next. The security guard stayed on the roof, so that he could close the door on his way down the ladder.
Before descending, Mr McMullen faced the ladder, put his foot on the top rung and held onto both sides of the ladder. On his way down Mr McMullen felt himself knock the locking bar with his elbow and then something hit his neck. He stopped where he was and felt pain in his neck. He realised that he had been struck by the locking bar. He took hold of the locking bar, pushed it back up into place and continued down the ladder. Mr McMullen described the pain as 'pretty severe' and gave evidence that he had never felt pain in his neck like that before. Mr McMullen and the other firefighter walked back to the fire panel where Mr Collis was. Mr McMullen reported the injury to Mr Collis, who advised him to fill out Hazard and Injury Report Forms when he returned to the station. Mr McMullen later completed those written reports.
Over the next few weeks Mr McMullen continued with his normal work on his regular roster. He found that he had neck pain from time to time but was able to tolerate it. He also suffered from stiffness and limited movement in his neck.
On 28 February 2007 Mr McMullen consulted his general practitioner, Dr Hasam at Western Plains Medical Centre in Dubbo (WPMC) complaining of these symptoms. Mr McMullen had attended WPMC before the incident and consulted a number of general practitioners at that practice. He was given a Medical Certificate certifying him unfit for work until 8 March 2007. Mr McMullen made a claim for compensation in respect of his time off work and his medical expenses and that claim was accepted.
On 2 March 2007 Mr McMullen had an x-ray of his cervical spine.
On 9 March 2007 Mr McMullen saw Dr Gibson, a general practitioner at WPMC and was certified fit for light duties. He was sent to the Zone Office at Dubbo to undertake administrative work. He continued on light duties until 21 June 2007.
On 22 May 2007 Mr McMullen underwent a CT scan of his cervical spine and was referred to Professor Thomas Taylor, an orthopaedic surgeon at Dubbo Private Hospital.
On 15 June 2007 Mr McMullen consulted Professor Taylor. Mr McMullen reported he became aware of neck soreness and stiffness in February. He told Professor Taylor his symptoms fluctuated and were worse with cold weather. On examination, Professor Taylor observed reduced rotation to approximately 80 per cent of the normal range and slightly more on movement to the right. Professor Taylor advised that Mr McMullen could trial a return to full duties.
On 21 June 2007 Dr Hasam certified Mr McMullen as fit for full duties.
On his return to work Mr McMullen did not notice any particular improvement in his condition. He found the pain and stiffness in his neck was exacerbated in particular circumstances and that those aggravations were possibly related to his work, although he did not make that connection at the time.
On 28 August 2007 Mr McMullen returned to see Dr Hasam complaining of continuing pain and stiffness in his neck. Dr Hasam gave Mr McMullen a certificate for light duties and referred him for physiotherapy treatment. He returned to the Zone Office performing administrative work.
On 5 September 2007 Mr McMullen returned to see Dr Hasam and was certified fit for full duties. He continued on full duties until seeing Professor Taylor again on 23 November 2007. Mr McMullen complained of painful stiffness in the cervical spine, particularly when he woke and reduction in the range of motion in his cervical spine. He was advised to try traction physiotherapy and hot packs.
On 4 December 2007 Dr Hasam certified Mr McMullen as fit for light duties.
On 14 December 2007 Mr McMullen returned to see Professor Taylor. As Mr McMullen reported no response to the mobilising physiotherapy, Professor Taylor recommended it be discontinued. On examination, Professor Taylor noted reduced rotation to approximately 70 per cent of the normal range. He was of the view that Mr McMullen should not be on full duties as a firefighter due to restricted range of motion in his neck.
On 29 January 2008 Mr McMullen consulted Dr Hasam and was again certified fit for full duties.
At about this time Mr McMullen was transferred to Dubbo Fire Station and performing the full duties of a firefighter. It had been a long term goal of Mr McMullen to be stationed at Dubbo Fire Station and he gave evidence that part of his eagerness to be certified as fit for full duties was the availability of this position, which he took up.
Mr McMullen was coping with varying amounts of pain completing his duties as a firefighter at this time. He was modifying his work to fit within his pain tolerance. He was changing his posture regularly and employing techniques to ease the pain when it was necessary to do so. He had a sitting tolerance of about 30 minutes after which he would get stiffness and pain in his neck. He would then get up and move around trying to stretch his neck to ease those symptoms.
Mr McMullen was referred to Dr Stephen Gibson at the Royal Prince Alfred Hospital Pain Management Centre. He consulted Dr Gibson on 25 February 2008. Mr McMullen complained of neck pain, occasionally radiating to the posterior aspect of the occiput, which frequently woke him during the night. He rated the pain as 3/10, occasionally reaching 10/10. Dr Gibson suggested that Mr McMullen undertake TENS therapy. The TENS treatment provided short term relief only. Mr McMullen continued with his normal duties.
On 16 May 2008 Mr McMullen suffered a knee injury in the course of his employment. He slipped off the bottom rung of a ladder on a fire truck. His ankle got caught and he twisted his knee on the way down. He fell onto the ground. He had instantaneous swelling in his right knee. He saw Dr Hasam on that day and was certified unfit for work and referred for an x-ray. On 23 May 2008 Mr McMullen consulted Dr Hasam and was certified fit for normal duties.
Mr McMullen continued to have some problems with his knee and was eventually referred to an orthopaedic surgeon, Dr Papadimitriou. Mr McMullen underwent surgery for an anterior cruciate ligament reconstruction on 6 August 2008. He had been working on normal duties up to the time of that surgery. After the surgery he was certified unfit for work before being permitted to return to lighter duties on 28 October 2008. He returned to the Zone Office at Dubbo undertaking administrative work.
Mr McMullen returned to see Dr Papadimitriou on 17 February 2009. At that time he was not suffering any pain in his knee and it was stable and secure. Mr McMullen told Dr Papadimitriou that he was intending to return to touch football by the end of the year. He did in fact return to play touch football later that year in the 2009/2010 summer season. He did not have any problems with his knee when he returned to playing touch football.
Mr McMullen was certified fit for normal duties by Dr Khalil, a general practitioner at WPMC on 3 March 2009.
Throughout the rest of 2009 Mr McMullen's neck condition remained fairly stable. He continued to have pain and stiffness which he tolerated because he could not find any effective treatment.
On 16 November 2010, Mr McMullen consulted Jenny Rodway, a physiotherapist to treat his neck symptoms. He saw Ms Rodway for about four months. He experienced some short term improvement in his symptoms after having physiotherapy but experienced no long term change. He was experiencing difficulty sleeping as a result of stiffness and pain in his neck.
On 26 July 2011 Mr McMullen took time off work as a result of his neck condition. His neck was feeling very sore, very stiff and these symptoms were making him very irritable. He was referred to Dr Jeffrey Brennan, a neurosurgeon.
On 16 August 2011, Mr McMullen consulted Dr Brennan. He complained of pain in the neck, spreading up to the head producing headaches. On examination, Dr Brennan observed a restricted range of motion of the neck due to pain. Dr Brennan arranged for an updated MRI scan.
On 13 September 2011 Mr McMullen returned to see Dr Brennan. Dr Brennan informed Mr McMullen that he had a problem at the C5/6 level of his spine and discussed the prospect of surgery with him. He was advised that surgery was not necessarily of long term benefit and should be delayed as long as possible.
On 16 September 2011 Mr McMullen was promoted to the position of senior firefighter. In order to obtain his promotion Mr McMullen underwent further training, including Work Health and Safety and Leadership modules. The promotion made him the most senior person on the truck besides the station officer.
On 18 November 2011 Mr McMullen returned to see Dr Brennan. Mr McMullen complained of disabling right arm pain and pins and needles spreading into the thumb, index and middle finger of the right hand. He was also experiencing pain across his shoulder into his right arm and forearm and a lack of strength in his right arm. Dr Brennan referred Mr McMullen for another MRI scan to determine the cause of the new symptoms.
On 6 December 2011 Dr Brennan advised Mr McMullen that he could have surgery to ease the pressure on his nerves that were causing the symptoms in his right arm and hand. At the time Mr McMullen was keen to have the surgery to relieve the pressure on the nerves. Arrangements were undertaken to seek approval from the workers compensation insurer to arrange payment for the surgery suggested by Dr Brennan.
The workers compensation insurer arranged for Mr McMullen to be seen by Dr Peter Blum, a neurosurgeon on 16 January 2012. Mr McMullen complained of numbness and paraesthesia in the right arm, involving the thumb, index and middle fingers. He reported having to concentrate for effective holding with his right hand. On examination, Dr Blum observed Mr McMullen's neck movements were restricted in flexion and extension to about half the normal range. His right biceps seemed to be a little weak in comparison to its size, with a possible slight decrease in the right biceps jerk as compared to the left. Dr Blum noted decreased sensation in the right C6 dermatome involving the right hand. Dr Blum suggested that Mr McMullen was suffering from carpal tunnel syndrome. He opined that Mr McMullen was unfit for work, except for light work. Mr McMullen consulted his general practitioner about that advice and was referred to Dr Garth Nicholson to undergo nerve conduction studies.
On 28 March 2012 nerve conduction studies were undertaken and it was concluded that Mr McMullen did not have carpal tunnel syndrome.
On 22 May 2012 Mr McMullen consulted Dr Stuart Porges, a general surgeon, for the purpose of assessing the degree of permanent impairment, at the request of the workers compensation insurer. Mr McMullen complained of constant discomfort in his low cervical spine that fluctuated with activity and had pins and needles down the right arm. On examination, Dr Porges noted limited movement on the right side of the neck and a slightly depressed right biceps reflex compared with the left. Dr Porges opined Mr McMullen had right cervical spine radiculopathy down the right arm, which equated to a 15% whole body impairment.
The workers compensation insurer advised that they would not pay for surgery at that time. As a result, Mr McMullen sought a second opinion from Dr Andrew Kam, neurosurgeon. On 29 May 2012 Mr McMullen consulted Dr Kam. Dr Kam advised him to pursue conservative treatment for as long as he could and suggested that he pursue pain management treatment.
On 25 June 2012 Mr McMullen returned to see Dr Gibson. Mr McMullen complained of persistent pain in his posterior neck, radiating to his right (dominant) hand. Dr Gibson arranged a psychological assessment and a physiotherapy assessment. Dr Gibson then suggested a trial of medication and further physiotherapy. Mr McMullen was concerned about his ability to continue with his duties as a firefighter by reason of the effects of the medication.
In or about 2012 Mr McMullen undertook a management course at TAFE and a Diploma of Science course at the University of New England (UNE). Mr McMullen found that the neck pain was having an effect on his ability to concentrate whilst studying and it took him a bit longer to complete work. If he sat at the computer for too long he would suffer soreness and stiffness in his neck. Mr McMullen believed that the further study would enhance his prospects for promotion. Mr McMullen completed the Diploma in Management but not the Diploma of Science. The Diploma of Science involved attending the UNE Campus at Armidale once per semester. That required Mr McMullen to drive to Armidale to attend the Campus. He found the four hour drive difficult and it was necessary for him to stop every hour to have a five to 10 minute break before resuming the drive.
In December 2012 Mr McMullen attended a one week intensive Pain Management Course at the Royal Prince Alfred Hospital. He found this provided some short term relief and he learnt more techniques to try and alleviate his symptoms.
On 10 December 2012 Mr McMullen was seen by Dr Peter Endrey-Walder at the request of his solicitors in order to prepare a medico-legal report. Dr Endrey-Walder produced a report dated that day. Mr McMullen gave a history of chronic neck pain, with some radiation into the shoulder and paraesthesia in the right arm and hand. He described the pain as a constant dull ache that varied according to activity levels. Mr McMullen said he had trouble sleeping and that the pain sometimes woke him. He described the paraesthesia as a constant feeling of pins and needles, predominantly in the thumb, index and middle fingers. Mr McMullen told Dr Endrey-Walder that he managed to work around the pain in his activities of daily living. On examination, Dr Endrey-Walder noted Mr McMullen had restricted neck movements. He observed Mr McMullen's right arm was slightly larger in circumference than the left and generated a greater grip force. Dr Endrey-Walder noted an absent right biceps reflex. Dr Endrey-Walder was of the view it was unlikely Mr McMullen was suffering from carpal tunnel syndrome, given the absence of peripheral nerve pathology. He recommended a repeat Nerve Conduction Study and diagnostic injections into the right C5/6 and C6/7 foramina before neck surgery was planned. Dr Endrey-Walder opined that Mr McMullen was suffering from intermittent right-sided C6 radiculopathy and that periods of working full duty would likely be interrupted by periods of inability to work or periods of light duty work.
On 6 March 2013 Mr McMullen saw Dr Thomas Silva, an orthopaedic surgeon, at the request of the workers compensation insurer. Dr Silva produced a report dated 8 March 2013. Mr McMullen told Dr Silva he was working his pre-injury full hours of normal duties. He reported he had taken a total of sixteen months absence from work due to his neck injury. Mr McMullen's present complaints were a constant dull pain over the back of the neck, radiating to the right shoulder blade and occiput, occipital headaches and pins and needles on the radial side of his right hand. On examination, Dr Silva noted neck stiffness, particularly on the right side and recommended Mr McMullen continue home exercises and use analgesics as required. Dr Silva disagreed with Dr Endrey-Walder regarding the need for future surgery, further nerve conduction studies and foraminal injections. He assessed Mr McMullen's whole body impairment as 5 per cent.
Mr McMullen had continued to play touch football throughout 2012. He was not having any knee problems and would not play if he was having particular problems with his neck.
In 2013 Mr McMullen was having periods of time away from work and then returning on light duties as a result of his neck problems being exacerbated. He continued to suffer pain, stiffness, headaches and the nerve related symptoms in his right arm. He found his problems were exacerbated if he did too much work around the house.
On 20 August 2013 Mr McMullen returned to see Dr Brennan. Dr Brennan noted extension and flexion of the neck produced pain in his medial scapular and shoulder. He advised Mr McMullen cervical nerve decompression would assist with the arm pain. Dr Brennan referred him for another MRI scan.
On 3 October 2013 Mr McMullen returned to see Dr Brennan. Dr Brennan advised Mr McMullen if he could manage his symptoms he should continue to do so, alternatively, he should have surgery to decompress the nerve. He estimated there was a 70 per cent chance of surgery achieving a meaningful improvement of Mr McMullen's symptoms.
On 15 October 2013 Mr McMullen advised Dr Brennan he wished to proceed with surgery. Dr Brennan sought approval for the surgery from the workers compensation insurer which was approved. Mr McMullen continued to undertake his normal duties until the day before he was admitted to hospital to have the surgery.
On 4 February 2014 Mr McMullen was admitted to the Royal North Shore Hospital to have surgery performed by Dr Brennan.
On 30 April 2014 Mr McMullen consulted Dr John Stephen, an orthopaedic surgeon, for the purpose of the doctor preparing a medico-legal report, at the request of the workers compensation insurer. Dr Stephen produced a report dated that day. Mr McMullen told Dr Stephen he had been working on full duties with no restrictions prior to the neck operation in February 2014 and intended to return to the same sort of work by June 2014. Mr McMullen complained of tingling in the tips of the thumb and radial two fingers and low level neck pain. He gave a history of taking the occasional Nurofen for headaches and engaging in weekly physiotherapy sessions. On examination, Dr Stephen observed a 2.5 cm scar on the back of his neck and mild restriction of rotation in either direction. He opined Mr McMullen's plan to return to work on full duties in June may be ambitious and he could be required to perform modified duties long term. Dr Stephen made a diagnosis of ongoing mechanical cervical pain, right arm symptoms suggestive of C6 and C7 nerve root irritation and possibly radiculopathy.
On 13 May 2014 Mr McMullen was reviewed by Dr Endrey-Walder. Dr Endrey-Walder produced a report dated that day. Mr McMullen reported his time away from work in 2013 usually occurred in winter when his neck was most irritated. Consistent with his previous examination, Dr Endrey-Walder observed restricted movement in Mr McMullen's neck and an absent right biceps reflex. Dr Endrey-Walder opined Mr McMullen should continue with his post-operative physiotherapy for a couple more months and follow up with his family physician on a two to three monthly basis. Dr Endrey-Walder stressed the operation dealt with the consequence of the 2007 injury, that is, radiculopathy into the right upper limb, rather than the intervertebral disc damage. He suggested it was likely Mr McMullen would have recurrence of the cervical symptoms and possibly radiculopathy as the disc damage deteriorates over time. Dr Endrey-Walder was of the view that it is unlikely Mr McMullen would be able to perform full fire-fighting duties beyond another three to five years, even if his Return to Work Program was successful.
On 21 May 2014 Mr McMullen returned to light duties in the Zone Office at Dubbo doing administrative work.
On 6 June 2014 Mr McMullen saw Dr Peter Cooke at the request of FRNSW. The purpose of this consultation was to determine if Mr McMullen could go back to the normal duties of a firefighter.
On 12 June 2014 Mr McMullen saw Dr Alam, a general practitioner at WPMC and was certified unfit for work as a result of pain between his shoulder blades radiating down his arms and consequent anxiety. Mr McMullen had never experienced that type of pain before.
Following the surgery Mr McMullen experienced relief of the nerve symptoms in his right arm. He estimated that they lessened by about 80%. His neck condition remained as it was prior to the surgery.
On 8 October 2014 Mr McMullen was reviewed by Dr Stephen. Mr McMullen reported occasional tingling in the radial three digits and some discomfort on the right side of his neck. He told Dr Stephen that he wanted to go back to his normal duties. Mr McMullen gave evidence that he felt at the time he was fit enough to do his normal duties. Dr Stephen opined Mr McMullen was fit to return to work.
On 20 May 2015 Mr McMullen was reviewed by Dr Porges. Mr McMullen complained of semi constant discomfort in the lower cervical spine, radiating pain into the back of the head and episodes of numbness in the tips of his fingers. He also reported awareness of the obvious scar down the back of his neck. Mr McMullen reported initial improvement in the radiculopathy symptoms following the 2014 surgery, however noted continued discomfort in the neck and down the right arm. He gave a history of using pain management techniques and taking mild analgesic medication as required. On examination, Dr Porges observed pain on tilting and rotating his head to the right, muscle spasms at the back of the neck, a slightly depressed right biceps reflex and 1cm less muscle bulk circumference of the right upper arm compared to the left. After the second examination, Dr Porges made a finding of 20 per cent whole body impairment, taking into account Mr McMullen's right cervical spine radiculopathy, asymmetry of reflexes, muscle wasting and scarring down the back of his neck.
In July 2015 FRNSW made the decision to medically retire Mr McMullen. He was devastated by the decision. He had been a firefighter at that time for about 20 years and it was always what he wanted to do. The decision upset him and he became depressed. Ultimately he accepted the decision because he thought he had to.
On 23 July 2015 Mr McMullen returned to see Dr Brennan. Mr McMullen complained of axial neck pain, stiffness and headaches. On examination, Dr Brennan observed minor muscular atrophy around the area of the previous cervical incision and restricted range of motion of his neck. He suggested Mr McMullen try some more physiotherapy. They discussed surgery again with Dr Brennan advising he should put off any further surgery for as long as possible.
On 7 October 2015, Mr McMullen saw Dr Nathan Taylor, a general practitioner and pain specialist in Dubbo. Mr McMullen complained of pain in the right mid and upper cervical spine, occipital headaches and some residual radicular symptoms. He described the pain as 4/10 on average, reaching 10/10 with a flare up. He said the pain was exacerbated by looking up and prolonged sitting and standing. On examination, Dr Taylor noted Mr McMullen had pain on extension of his cervical spine and marked reduced rotation to the left and right. He referred Mr McMullen for a SPECT scan and suggested he look at pain management strategies in combination with physiotherapy.
On 3 November 2015 Mr McMullen returned to see Dr Stephen at the request of the workers compensation insurer. Dr Stephen produced a report dated that day. Mr McMullen reported posterior neck pain that varied in intensity, occipital headaches and tingling in the three middle digits and thumb of the right hand. Dr Stephen opined that Mr McMullen was not fit to work as a firefighter but was fit to work with the Australian Red Cross.
On 10 November 2015 Mr McMullen was employed with the Australian Red Cross as a part time disaster response officer. That work was predominantly office based with some driving involved. Mr McMullen told the Australian Red Cross about his neck problems and his requirements to modify his duties. The initial contract was for 24 hours per week in the office.
On 21 January 2016 Mr McMullen was reviewed by Dr Taylor. The SPECT scan revealed discovertebral uptake in the C6/7 region and facet joint uptake in the C6/7 bilaterally. Mr McMullen's pain symptoms were unchanged. Dr Taylor recommended he undergo a diagnostic medical branch block to the C5/6 and C6/7 facet joints and a radiofrequency denervation.
In 2016 Mr McMullen was offered a 38 hour per week position with the Australian Red Cross, initially on a short term contract. Mr McMullen suffered a lot of pain and stiffness in his neck in the full time position and spoke to the Red Cross, who suggested he talk to the workers compensation insurer. Following an ergonomic assessment, some changes were made to Mr McMullen's workplace, including the supply of a standing desk and techniques to make sitting more comfortable. His hours were reduced to 24 hours per week for a period of time.
On 22 August 2016 Mr McMullen was reviewed by Dr Stephen, who produced a report dated that day. Mr McMullen complained of constant neck soreness, particularly posteriorly and on the right side, sometimes accompanied by occipital-frontal headaches. He reported his neck ache was exacerbated by prolonged sitting and driving. Mr McMullen was taking Stillnox at night and Nurofen occasionally for occipital-frontal headaches. Dr Stephen was of the view, consistent with his previous opinion, that given Mr Mullen's low level of symptoms, physical activities, description of the work involved and keenness to return to work, that he was fit to do the full duties of a firefighter.
On 9 September 2016 Mr McMullen underwent radiofrequency denervation to the right C4, C5 and C6 medical branches.
On 14 October 2016 Mr McMullen returned to see Dr Taylor. Following the September procedure, Mr McMullen reported limited benefit. His range of motion had not improved and he continued to have pain in the right side of his neck. Mr McMullen told Dr Taylor he trialled working 5 days per week but was unable to maintain it. Dr Taylor prescribed a muscle relaxant.
In mid-2017 Mr McMullen obtained a new contract with the Australian Red Cross, working 38 hours per week. He gave evidence that he has continued to suffer pain in his neck working 38 hours per week. He has continued to have physiotherapy from time to time from which he obtains short term relief. He also takes over-the-counter pain medication when required. He manages the pain as best he can and may get an exacerbation about once per week. He continues to have difficulties sleeping and finds that stiffness in his neck is a constant condition for him. He continues to suffer headaches occasionally. He continues to have pins and needles in his right arm but to a much lesser extent than before the surgery and it does not really affect him.
Mr McMullen gave evidence that the normal duties of a firefighter were physically demanding. They were required to lift heavy equipment, a fully charged 70mm hose could weigh up to 90kg and some of the rescue equipment weighed between 10 to 15kg. There were also occasions where they would be required to drag a person from a building, though these lifts were always performed by two firefighters. The breathing apparatus and safety gear weighed about 20kg. It was also necessary on occasions to crawl through roof spaces and under buildings in confined spaces. In addition, ladders of varying sizes needed to be lifted and put into position. The hazardous materials equipment included things like generators that were fairly heavy and required a two person lift. It was also necessary to swing an axe on occasions and to exert physical force on the Halligan tool.
Mr McMullen gave evidence that the limitation of movement in his neck would cause considerable difficulties in conducting the duties of a firefighter. He accepted that he would also be limited in the lifting requirements of that job. He accepted at the time he gave evidence that he could not do the physical aspects of the work required by a full time firefighter.
Mr McMullen gave evidence that he limits his domestic duties according to how he is feeling. If his neck is causing him problems, for example, he would not mow the lawn. He gave evidence that when he first moved into his house, he painted it but does not think he would be able to do it now and would probably have to pay someone else.
In cross-examination Mr McMullen gave evidence that he did not perceive any risk from the locking bar as he ascended the ladder on the day of the incident. Mr McMullen gave evidence that the locking bar was hinged about an inch off the wall.
Mr McMullen accepted that when he was asked questions by the doctors in the various consultations that he did his best to tell them the truth.
Mr McMullen accepted that he continued to undertake the work required to obtain promotions during the course of his recovery from the injury suffered in the January 2007 incident. Mr McMullen accepted that he went to work and observed the restrictions noted on the relevant Medical Certificates given to him from time to time.
On or about 21 May 2014 Mr McMullen had been certified by his general practitioner as fit for full duties, but was put on lighter duties at the Zone Office. Mr McMullen accepted that this made him distressed because he was telling the doctors and FRNSW that he felt fit to resume full duties at that time. As a result he suffered from depressive symptoms. He returned to see Dr Alam and was certified unfit for work as a result of his psychological condition.
Mr McMullen accepted that Dr Cooke had accurately described the position in his report that Mr McMullen had had symptoms for many years with multiple aggravations but had always been able to get back to his pre-injury duties. Mr McMullen accepted that he told Dr Cooke that his symptoms had never caused any safety concerns by undertaking operational firefighting. He told Dr Cooke that his performance at work had been satisfactory and he had not been unable to undertake any of the required activities as a result of his symptoms. Mr McMullen accepted that Dr Brennan had told him he could return to work.
Mr McMullen accepted that he had told Dr Stephen that he could perform firefighting tasks as was detailed in the Firefighting Essential Functions Information Sheet including climbing multiple flights of stairs and undertaking search and rescue work on hazardous surfaces. Mr McMullen accepted that he told Dr Harvey-Sutton in February 2015 that he felt that he could undertake the task of firefighting.
Mr McMullen gave evidence that he then applied for a number of training roles with FRNSW. These roles were not necessarily less physically demanding than work as a firefighter but they were not required to be performed under operational circumstances. For example, a demonstration of how to use breathing apparatus and similar equipment would require the demonstration of how to put that equipment on but not to wear it for long periods of time. Mr McMullen accepted that he thought he had capacity to be redeployed within FRNSW. Mr McMullen was informed that FRNSW would not consider him for any of those training roles.
After his medical retirement FRNSW organised vocational support and an earning capacity assessment to identify other roles for which Mr McMullen may be suited. A number of other roles were identified, including a health and safety advisor, vocational trainer and an environmental field officer.
Mr McMullen accepted that he has continued to seek a promotion in his work for the Australian Red Cross. As a result of the nature of his employer (an NGO) Mr McMullen accepted that his rates of pay were lower than he could obtain in other employment. Mr McMullen gave evidence that he did not believe he was currently fit to work as a firefighter because he had lost a considerable amount of his fitness since being medically retired and as a result of his neck condition.

Credit of Mr McMullen

Mr McMullen was an impressive witness. He gave his evidence in an honest and forthright manner and I had no reason to doubt it. There was some tension between what he told the doctors about his ability to perform the full duties of a firefighter and the symptoms he was suffering. I formed the view that he told the doctors at the time he spoke to them that he was fully fit, so that he could return to his job which he loved. He did not want to countenance the possibility that he would have to stop being a firefighter. He ultimately accepted that he was not fit to be a firefighter a short time after he was medically retired. In what he told the doctors after this point in time he accepted that he had some ongoing disability as a result of his neck condition.
In giving evidence Mr McMullen accepted that he could not now perform the duties of a firefighter as a result of the condition of his neck and I accept this evidence. I have not relied on the statements he made to the doctors about his physical capacity to perform the duties of a firefighter, during the course of his treatment, because those statements were coloured by his desire to return to work as a firefighter.

Limitation on acceptance of the evidence of Dr Stephen

Dr Stephen arrived at inconsistent conclusions set out at [66], [72], [77], and [81] above. I do not accept Dr Stephen's opinion that Mr McMullen was fit to return to work as a firefighter in 2016. It appears to me from reading each of Dr Stephen's reports that he did not adequately consider his earlier reports or reviews of Mr McMullen prior to expressing that opinion in his report dated 22 August 2016. I would also reject this opinion because as at August 2016 it was inconsistent with the weight of the medical evidence on this issue.

The evidence of Mr Willox

The plaintiff called David Willox, who was employed as a security guard at the Shopping Centre on 22 January 2007.
Mr Willox was employed between 1998 and 2008 as a security guard with a company known as the "Reflections Group". For the five years prior to 1998 Mr Willox worked for Darren Forrest Security. In both of those positions Mr Willox worked as a security guard at the Shopping Centre for a total of 15 years.
In about late 2007 or early 2008 Mr Willox ceased being a security guard and commenced working at a tobacco shop in the Shopping Centre. He worked there for approximately four and a half years.
At the time when he was employed by the Reflections Group, Mr Willox was responsible for supervising one other security guard and five cleaners. The other security guard, Chris Ross worked on Saturdays and Sundays. Mr Willox worked Monday to Friday at the Shopping Centre. Mr Willox's role required him to verbally report to Centre Management any problems or if anything unusual had occurred in the Shopping Centre. As a result, he had contact with people employed in the Centre Management office on most days that he worked.
Mr Willox would report a variety of events to Centre Management, including maintenance issues, security incidents and evictions. If he did evict a person from the Shopping Centre, he would notify Centre Management so that they could issue a barring notice on that person. He would report maintenance issues such as tiles lifting, broken items and breakdowns in escalators, travelators and lifts.
Mr Willox gave evidence that in the beginning of 2007 there were three women ordinarily employed in the Centre Management office at the Shopping Centre being Sharon Connellan, Jasmine (last name unknown) and Nicole Chapman. Based on his observations Mr Willox believed Nicole Chapman was the supervisor of the other two women. Ms Chapman remained employed in the Centre Management office during the time Mr Willox worked at the tobacco shop. Mr Willox gave evidence that Ms Chapman had been working in the Centre Management office for about six years prior to him ceasing to be a security guard at the Shopping Centre.
Mr Willox gave evidence that he did not have any recollection of the incident involving Mr McMullen on 22 January 2007.
Mr Willox gave evidence that he was familiar with the access door and the ladder leading to it. He was required to climb the ladder once per week to conduct a patrol of the roof area of the Shopping Centre. He described the ladder as going straight up about 12 rungs and covering a distance of about 9 or 10 feet. The ladder was made of steel, affixed to a wall, leading to a metal access door. The access door was about the width of a normal door and about three quarters of the height of a normal door. It was necessary for Mr Willox to stoop down in order to pass through the access door.
The access door was secured with a metal bar that came down and sat into a cradle connected to the door which was secured by a padlock. Mr Willox had a key to the padlock, which was also made available to the other security guard. Mr Willox described the locking bar as a metal, four-sided square pipe, approximately one metre in length, with a diameter of roughly one inch. The locking bar was hinged on one side and when Mr Willox opened the door he pushed it up to the left and sat it against the wall. There was no mechanism installed to keep the locking bar in that position. When using the access door it was necessary for Mr Willox to climb the ladder, unlock the padlock, raise the locking bar and then push the metal door open in an outwards direction.
Mr Willox described occasions when the wind had blown the door shut. On these occasions he noticed that the locking bar had dropped down into the horizontal position. He estimated there was a distance of about 12 feet from the bottom of the access door to the floor below.
Mr Willox gave evidence that on two occasions the locking bar had fallen on him when the wind had blown the access door shut. On both occasions he noticed the locking bar falling, stopped it with his hand and pushed it back into position.
On the first occasion he made a verbal report to one of the women at Centre Management. On the second occasion he again made a verbal report and noted it in an incident book kept by his employer. Mr Willox gave evidence that Ms Chapman was present when he made the second verbal report. After reporting these two incidents there was no change made to the set-up of the locking bar.
As a result of these two incidents, Mr Willox made sure he had hold of the access door when he was descending the ladder to ensure that it did not bang shut. He also kept a close eye on the locking bar as he descended the ladder.
In cross-examination Mr Willox accepted that the access door was used about once per week by him. Mr Willox was not challenged as to his evidence about the set-up of the locking bar, his experience of it or the reports he made to Centre Management.

The defendants' case

The defendant tendered a copy of the statement of Paul Collis dated 7 March 2014. Mr Collis was not required for cross-examination.
Mr Collis stated that he recalled being on duty with Mr McMullen at the Shopping Centre on 22 January 2007. Mr McMullen mentioned the injury when they returned to the station. Mr Collis stated that he did not have a good working knowledge of the area in which Mr McMullen was injured, but he had been to that location. Mr Collis stated that there was nothing obvious about the locking bar that presented a danger to firefighters. Mr Collis was unaware if Mr McMullen or the other firefighter had made any enquiries about safety issues relating to the use of the ladder or the access door. Mr Collis opined that a firefighter with Mr McMullen's level of experience would have used similar access points on many occasions. Mr Collis did not think it was necessary to give a firefighter, such as Mr McMullen, any specific instructions on how to negotiate this style of access point.
Mr Collis stated that there was no specific training for firefighters in relation to the circumstances of Mr McMullen's incident. Mr Collis believed that an ordinary person could negotiate such an access safely and thereby an operational firefighter should not have any problems using such an access point.
Mr Collis recalled that the security guard who met them on site was called "Dave".

Duty of care

The first defendant accepted that it was the owner of the Shopping Centre, but denied that it was an occupier because it had delegated the management of the Shopping Centre to the second defendant.
The second defendant denied that it was an occupier but accepted that its role in management of the Shopping Centre was set out in the MA and that the scope of the duty that it owed was to be determined by what it had actually contracted to perform: Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16.
To resolve these arguments it is necessary to refer to some of the provisions of the MA.
The Shopping Centre was the asset of a Trust, managed by the first defendant as the Responsible Entity of the Trust. A responsible entity is appointed to operate a registered scheme and to perform the obligations imposed on it by the scheme's constitution and the Corporations Act 2001: section 601FB Corporations Act 2001. A responsible entity has the power to appoint an agent or engage a person to perform any of its obligations.
The Principal was given the power and authority to enter into the MA with the second defendant. I infer that the source of that power was the first defendant as the Responsible Entity of the Trust.
The MA was for a period of one month, but could be extended by holding over and thereafter terminated on three months' notice in writing by the Principal or either of the joint managers: clause 3 of the MA.
The MA required the second defendant to perform the defined services (Services) in accordance with the law of New South Wales, with due care and skill, in good faith and in the best interests of the Principal. The second defendant was required to perform its obligations creating as little disturbance as possible and avoiding unnecessary interference with the property or assets of the Principal, the Owner and third parties, including Lessees: clause 4.1 of the MA.
Clause 4.2 of the MA provided: 4.2 Licence to Occupy Premises(a) Subject to subclauses (b) and (c), the Principal grants to the Manager a licence to occupy and use the Premises for the exclusive purpose of performing the Services ("Licence"), at no cost to the Manager.(b) At the expiry of the Term or earlier termination of this Agreement, the Licence will end and the Manager must yield up the Premises in good repair and condition.(c) While occupying the Premises pursuant to the Licence the Manager must: (i) not carry out any alterations to the Premises: (ii) keep the Premises in good repair and condition; (iii) keep the Premises clean and remove and properly dispose of all rubbish; (iv) comply with all reasonable directions given by the Principal from time to time.
The MA required the second defendant to comply with all rules and regulations specified by the Principal and not to interfere with the quiet enjoyment of the Lessees. The second defendant could appoint subcontractors to perform some of the Services, but only with the consent of the Principal. The second defendant was required to report to the Principal on a monthly basis matters relating to preventative maintenance and occupational health and safety inspections carried out.
The first defendant was the Responsible Entity of the Trust. The first defendant appointed Perpetual on its behalf to hold the assets of the Trust as Custodian. The obligations of Perpetual as the Owner of assets in the MA arose in its role as Custodian and any act or omission of the Custodian as agent for the first defendant was an act or omission of the first defendant.
The second defendant was responsible for managing existing and future agreements with third parties to provide the Services. The extension of existing agreements or entry into of new agreements required the consent of the Principal.
Clause 24 of the MA required the second defendant to ensure compliance with Occupational Health and Safety Laws (which included by definition the Occupational Health and Safety Act 2000) and specified the second defendant to be the controller, occupier or person in charge or control of the Property. The second defendant had an obligation to ensure the health and safety of persons at the premises, to report to the Principal and to implement safety management systems. If the Principal formed the opinion that the second defendant was not carrying out its obligations in this regard it was entitled to suspend the Services or any part of the Services rendering the second defendant unable to claim payment for the suspended Services.
The Services were relevantly defined to include: 1. Property Management Services, which required the second defendant to do all things necessary to protect the interests of the Principal or the first defendant; 2. Building Management Services, which required the second defendant to arrange repair and maintenance works prudent for the proper management of the Shopping Centre. The second defendant had the authority to expend up to $2,000 without the consent of the Principal if the work was necessary to minimise or mitigate the liability of the Principal; 3. Facilities Management, which required the second defendant to co-ordinate and manage repair works prudent for the proper management of the Shopping Centre. The second defendant had the authority to expend up to $1,000 without the consent of the Principal.
The first defendant conceded that it was the owner of the Shopping Centre. It retained some control over how the Shopping Centre was managed through its agent, the Principal. The second defendant was required to obey all reasonable directions of the Principal, comply with rules and regulations specified by the Principal and to seek approval of the Principal to enter into or continue with third party contracts for the provision of the Services in the management of the Shopping Centre. The second defendant had to seek approval from the Principal for expenditure in excess of $2,000.
The first defendant was sued as the owner of the premises. It maintained some control through its agent, the Principal, but the exact terms of the delegation between the first defendant and the Principal were not in evidence. The duty of an owner of premises to entrants will in most cases be narrower than that owed by an occupier of the premises, because an occupier is generally in possession and control of the premises and can determine who enters those premises and under what conditions, but this depends upon the circumstances of each case: Aldred v Stelcad Pty Limited [2015] NSWCA 201.
The discharge of the duty of care owed by the first defendant could be delegated to others: Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161.
I am satisfied by reference to the terms of the MA and all of the evidence that the second defendant was the occupier of the Shopping Centre.
As an occupier of the Shopping Centre the second defendant owed Mr McMullen a duty to take reasonable care to prevent injury to him on the assumption he was using reasonable care for his own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-488 per Mason, Wilson, Deane and Dawson JJ; Jones v Bartlett (2000) 205 CLR 166 and Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at [47] per Gummow J.
What was reasonable depends on the circumstances of Mr McMullen's entry to the Shopping Centre: Zaluzna at 488. The duty to take reasonable care required the occupier to protect Mr McMullen, or the class of person of which he was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw (1984) 155 CLR 614 at 663 per Deane J. The measure is now prescribed by s 5B Civil Liability Act 2002.

Breach of duty

Section 5B Civil Liability Act 2002 provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5C Civil Liability Act 2002 provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The question whether the defendants were guilty of breach of duty turns first on determining whether the risk in question is one of which the defendant knew or ought to have known: s 5B(1)(a). This means the risk must be defined. Before doing so, it is essential to determine the scope of the duty of care the respondents owed the appellant.
The inquiry about whether the defendants ought to have taken the precautions for which the plaintiff contends, turns on (amongst other relevant matters), the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] per Hayne J, but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].
The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is also necessary to ask would it have been reasonable for the defendants to take those measures: Neindorf v Junkovic (2005) 80 ALJR 341 at [93] per Hayne J. In other words, the knowledge of how Mr McMullen actually came to sustain his injury has to be excluded when considering whether the defendants were obliged to take any precautions to secure the locking bar to the access door or to warn users of the ladder that it was not secured: Neindorf at [96] - [97] per Hayne J.
I am not satisfied that the first defendant knew or ought to have known of the risk and it is not necessary to proceed further in assessing if the first defendant breached the duty of care it owed to Mr McMullen. If I am wrong on this conclusion I am satisfied on the evidence that the first defendant discharged the duty of care it owed to Mr McMullen by delegating the control and management of the Shopping Centre to the second defendant by entering into the MA.
The second defendant warranted in the MA that it was capable of performing the Services. The second defendant had possession and control of the premises such that it could control how the ladder and access door to the roof were used by lawful entrants to the Shopping Centre.
The failure to restrain the locking bar posed a foreseeable risk of injury by it falling onto a person using the ladder to access the door to the roof of the Shopping Centre. The second defendant had actual knowledge of the risk because the locking bar had fallen on Mr Willox and was reported by him to an employee of the second defendant on two occasions. On the second occasion it was reported to Ms Chapman who continued to be employed in a supervisory capacity by the second defendant at the time of the incident.
The risk of the locking bar falling onto a person using the ladders was low because the access door to the roof was used approximately once per week when the security guard patrolled the roof and when the roof needed to be accessed, for example when the air conditioning units needed to be checked.
The risk involved a risk of death or serious injury. It was possible that the locking bar could fall onto a person using the ladder and thereby result in a fall of 12 feet to the floor at the bottom of the ladder. The locking bar's close proximity to the door jamb meant that it was reasonably foreseeable that the locking bar could be disturbed by a person dislodging it from its resting place with a body part or item of clothing.
The precautions required to avoid the risk of harm were simple and inexpensive. A mechanism to secure the locking bar when it was leaned against the door jamb could have been obtained from a hardware store and installed by a tradesman in less than 30 minutes. A sign warning of the risk and advising that the locking bar should be held whilst descending the ladder could have been affixed in the area of the ladder at minimal cost.
I am satisfied on the balance of probabilities that the second defendant as occupier of the Shopping Centre was in breach of the duty of care it owed to Mr McMullen.
I am not satisfied on the balance of probabilities that the first defendant as owner of the Shopping Centre was in breach of the duty of care it owed to Mr McMullen.

Causation

Section 5D of the Civil Liability Act 2002 provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The second defendant knew or ought to have known that the unrestrained locking bar posed a risk of falling on a person using the ladder to the access door. Mr McMullen was struck by the falling locking bar when he was descending the ladder. The injury suffered by Mr McMullen was caused by the negligence of the second defendant and it was a necessary condition of the occurrence of the harm.
There are no relevant limitations to the scope of liability to be determined with respect to causation.
I am satisfied on the balance of probabilities that Mr McMullen's injury was caused by the negligence of the second defendant.

Duty of care

The plaintiff accepted that it owed a non-delegable duty of care. An employer must take reasonable care to avoid exposing an employee to an unnecessary risk of injury. The employer must take reasonable care to devise a method of operation for the performance of a task that eliminates the risk or provides adequate safeguards. The employer must take into account thoughtlessness, inadvertence or carelessness particularly in the case of repetitive work: Czatyrko v Edith Cowan University (2005) 214 ALR 839 at [12].

Breach of duty

In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J stated: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence.
Mr McMullen had received training on the proper use of ladders and risk assessment procedures in the course of his work as a firefighter. It was not reasonably practicable for the plaintiff to have provided training to Mr McMullen on every conceivable situation he may have encountered in the course of his work as a firefighter, including the use of unique methods of ingress and egress from various premises or areas into which a firefighter was required to access. Rather, as it did, the plaintiff provided training to Mr McMullen to identify risks and to use control measures to alleviate the risk.
The set-up of the locking bar to the access door was uncommon, if not unique. I accept Mr McMullen's evidence that he did not perceive the danger presented by the unrestrained locking bar. Mr McMullen, the security guard and the other firefighter had ascended the ladder without incident. It was not apparent to Mr McMullen or to the other firefighter that there was a need to consult Mr Collis, who was present in a supervisory capacity, if required.
I am not satisfied that in the circumstances the plaintiff breached the duty of care that it owed to its employee, Mr McMullen.
Accordingly, I would not apportion the responsibility for the incident between the second defendant and the plaintiff in accordance with section 151Z(2) Workers' Compensation Act 1987.
If I am wrong on this conclusion, I would apportion 10% responsibility for the incident to the plaintiff.

Contributory Negligence of Mr McMullen

Section 5R Civil Liability Act 2002 provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
In determining if a person is guilty of contributory negligence it is necessary to have regard to their personal responsibility for his or her own safety: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 at [67]-[68]. Contributory negligence is determined objectively form the facts and circumstances of a case, which includes what the injured person knew or ought to have known at the time: Joslyn v Berryman (2003) 214 CLR 552 at [16].
I accept Mr McMullen's evidence that he did not know of the risk posed by the unrestrained locking bar and I am not satisfied that he ought to have perceived the risk. Mr McMullen had limited experience using the access door. He was attending an emergency call-out and it was possible at the time of ascending the ladder that he may have had to deal with a fire. Mr McMullen did not have to put the locking bar into position or have anything to do with it, in the course of ascending the ladder.
Mr McMullen dislodged the locking bar with his elbow when descending the ladder. At that time his attention was focussed on safely descending the ladder, whilst carrying a sledge axe or Halligan tool and wearing breathing apparatus. His action of dislodging the locking bar was caused by his momentary inadvertence. I am satisfied that Mr McMullen was taking reasonable steps to have regard for his own safety.
I am not satisfied that Mr McMullen was guilty of contributory negligence.
If I am wrong on this conclusion, I would assess contributory negligence as 10%.

Notional Assessment of Damages

The notional assessment of damages must be carried out pursuant to the provisions of the Civil Liability Act 2002.

Non-economic loss

Mr McMullen was born on 19 March 1969 and is now 50 years of age. Mr McMullen has suffered significant pain and suffering since the incident. To his credit he continued with heavy physical work as a firefighter for considerable periods when he was suffering symptoms related to the incident. Whilst there were periods in which his symptoms were exacerbated I am satisfied that he tolerated at least some level of symptoms from the date of the incident onwards.
Mr McMullen's condition deteriorated to the point where he required surgery. There is a possibility of future surgery. I am satisfied that his condition has deteriorated significantly from the date of the accident until the date of the hearing and that there is some risk of further deterioration with consequential increased disability and impairment. I am satisfied that his condition is permanent.
Mr McMullen lost the opportunity to pursue his chosen career as a firefighter which was of significant importance to him. He had the potential for further promotion and job satisfaction but for the incident. The incident has also curtailed his pre-injury activities of daily living. I am satisfied that the injuries and disabilities suffered by Mr McMullen have had a serious and continuing effect on his amenities of life.
In the circumstances, the notional assessment of non-economic loss is 35% of a most extreme case, which presently translates to an award of $214,500.00.

Out of pocket expenses

The plaintiff has paid the sum of $88,731.00 for Mr McMullen's out of pocket expenses to date.
The plaintiff claims the sum of $28.00 per week into the future, being an average of the weekly out of pocket expenses incurred for Mr McMullen in the 12 months before the hearing before me. I consider this to be a reasonable sum for ordinary out of pocket expenses for future medications and the occasional treatment such as physiotherapy. The appropriate award for this head of damages is $28.00 per week for the rest of his life, 35 years (875.6) less 15%, resulting in a figure of $20,839.00.
The plaintiff also claims an amount of $30,000.00 for future out of pocket expenses for surgery and associated costs of surgery. In my view that amount is reasonable, but it should be deferred for 10 years by applying the relevant discount figure (0.614), resulting in a figure of $18,420.00.
The total notional assessment of out of pocket expenses is $127,990.00.

Domestic Assistance and Care

The evidence does not permit me to make an allowance for this head of damage. The plaintiff seeks an amount of $40,000.00 as a cushion for the future. In my view, that amount is speculative and I would not make any allowance for this head of damage.

Economic Loss

There is a dispute between the parties as to Mr McMullen's ability to continue his pre-injury employment as a firefighter. The defendants contend that he was inappropriately medically retired as a firefighter by the plaintiff, resulting in damages for economic loss that should not be paid by the defendants.
There was a large volume of medical material in which Mr McMullen told the doctors when he was examined by them that he was capable of continuing full duties as a firefighter. This was consistent with his desire to continue that work and to pursue further promotion as a firefighter at those times.
I am satisfied on the medical evidence that the injuries and disabilities sustained by Mr McMullen as a result of the incident resulted in him being unfit for the full duties of a firefighter because he was objectively not capable of carrying out the heavy physical work required by that occupation and he would have subjected himself to an unreasonable risk of further injury, should he continue to conduct that heavy work. A number of the medical experts came to that opinion.
I am satisfied that he was unfit to perform the work of a firefighter for the periods specified in the Medical Certificates and permanently from July 2015 onwards.
I note that by reference to what Mr McMullen told the doctors after that time, and in his evidence before me, he accepted a number of months after being medically retired, that he was in fact unfit to conduct the full duties of a firefighter.
Mr McMullen was referred to Vocational Capacity Support and other suitable occupations were identified for him. Mr McMullen took up work with the Australian Red Cross in his current position, initially on a 10 week contract and thereafter permanently. I note that Mr McMullen had some difficulties in performing the office based work for a period of 38 hours per week and other ergonomic measures and reduced hours were required before he could finally settle in to working 38 hours per week in that position. I would also note that his present employer has made significant allowances for his ongoing disability.
In the circumstances, I am satisfied that both the plaintiff and Mr McMullen have acted reasonably to mitigate their respective losses in relation to economic loss.
The appropriate awards for past economic loss are set out in the following table: Financial Year Period Weekly loss Total 2007 28.02.2007 - 20.06.2007 (22 weeks) 704.75 15,505.00 2008 28.08.2007 - 15.05.2008 (1.8 weeks) 994.90 1,791.00 2012 26.07.2011 - 30.06.2012 (28 weeks) 1,147.76 32,137.00 2013 03.12.2012 - 30.04.2013 (3 weeks) 1,242.00 3,726.00 06.07.2013 - 30.07.2103 (4 weeks) 1,322.50 5,290.00 2014 31.07.2013 - 16.08.2013 (2 weeks) x 75% 1,322.50 1,984.00 05.02.2014 - 20.05.2014 (15 weeks) 1,322.50 19,838.00 12.06.2014 - 30.06.2014 (3 weeks) 1,322.50 3,968.00 2015 01.07.2014 - 07.08.2014 (5.6 weeks) 1,295.00 7,252.00 08.08.2014 - 12.08.2014 (1 week) x 50% 1,295.00 648.00 2016 03.07.2015 - 10.11.2015 (19 weeks) 1,314.00 24,966.00 11.11.2015 - 30.06.2016 (33 weeks) less $600 pw 714.00 23,562.00 01.07.2016 - 16.02.2017 (46 weeks) 780.00 35,880.00 2017 17.02.2017 - 20.05.2017 (13 weeks) 775.00 10,075.00 21.05.2017 - 30.06.2017 (6 weeks) 825.00 4,950.00 2018 01.07.2017 - 15.02.2018 (33 weeks) 789.00 26,037.00 16.02.2018 - 30.06.2018 (19 weeks) 822.00 15,618.00 2019 01.07.2018 - 25.03.2019 (38 weeks) 526.00 19,998.00 Total $252,699.00

The past loss of superannuation is 11% of $252,699.00 resulting in a figure of $27,797.00.
The Fox v Wood component to date is $12,124.00.
The total award of past economic loss is $292,620.00.
The appropriate award for future economic loss is $526 per week for 17 years (multiplier 602.8), less 15% for vicissitudes of life, resulting in an award of $269,512.00.
The appropriate future loss of superannuation is 11% of $269,512.00 resulting in an award of $29,646.00.
I would also allow a cushion for future economic loss representing periods for which Mr McMullen may be unavailable to work at all by reason of a need for future surgery and convalescence in the amount of $50,000.00.
The total notional assessment of future economic loss is $349,158.00.
The total notional assessment of damages amounts to $984,268.00.

The plaintiff's claim for indemnity

The submissions I received calculated the amounts sought by the plaintiff and interest up to the date of hearing. It is appropriate to allow the plaintiff to update those figures to the date of entry of final orders.
For the period between 22 December 2011 and 29 November 2018 the agreed amount of the plaintiff's claim is $261,146.00.
Interest on half of that amount at District Court rates between 22 December 2011 and 4 December 2018 amounts to $57,716.00.

Orders 1. Verdict for the plaintiff against the second defendant in the sum of $325,599.36. 2. Verdict for the first defendant against the plaintiff. 3. I will hear the parties on costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2019

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (14)