Vo v Tran [2016] NSWSC 1043 | Case summary

Vo v Tran [2016] NSWSC 1043 | Case summary | Zoe

[6]

Factual Matters

The plaintiff was born in Vietnam in 1980.
In 1998 she finished her High School course and in 2002 she completed a degree in Information Technology at Ho Chi Min University of Information and Technology.
In 2004 she completed an accounting course in Vietnam.
In 2004-6 she undertook work in Vietnam in accountancy.
In October 2008, the plaintiff came to Australia on a student visa. She lived with her aunt in Villawood. That visa was due to expire in August 2013. Subsequently she was given a medical treatment visa which expired on 19 August 2015.
The student visa allowed the plaintiff to work 20 hours per week in Australia.
The plaintiff was introduced to the defendants' business by a friend who knew one of the owners of the shop premises. The plaintiff's immediate supervisor was the second defendant, Thuy My Le, who was in partnership with her husband.
In July 2011 the plaintiff commenced a part-time (casual) job with the defendants as a shop assistant. She worked one to two hours per day and received $127 per week. She was rostered to work in the defendants' business on Wednesday, Thursday and Friday of each week.
Up to the time of the accident she attended Central College, Redfern on Monday and Tuesday of each week.
On Monday 13 February 2012 the plaintiff finished her classes at the Redfern College at about 12:00pm. She travelled to Cabramatta, arriving at approximately 1:00-1:30pm.
She then met a friend, Ngan, for lunch and the two later spent the afternoon walking in Cabramatta.
She went to the shop premises at approximately 5:00-5:30pm with the intention of buying a drink at the shop. She said on arrival it looked like the shop was in the process of closing for the day.
On her arrival her friend, Ms Hoa, who also worked as a casual employee at the shop premises, asked her if she would help her out so that they could then could walk together to the station. Ms Hoa, in particular, asked the plaintiff to assist her with cleaning the floor and with the last stage of cleaning a sugar cane juicing machine which at that point in time was said to have been half completed.
At the time when the plaintiff was present on the shop premises a tiled area of the floor was wet and slippery.
As the plaintiff walked on the wet and slippery tiled surface, she slipped. As she did so she came into contact with a juicing machine which was turned on. The plaintiff's left hand entered into a void in the juicing machine used to insert sugar cane and other items for crushing, causing her to sustain significant and substantial injury to her left hand.

[9]

Employer's Liability under the Workers' Compensation Legislation

The defendants, as earlier noted, in their Defence raised the issue as to whether the plaintiff, in her relationship with the defendants at the time of her injury, was a worker or a "deemed worker" within the meaning of the WCA and WIMA.
As discussed above, the defendants claim that if it is determined that the plaintiff was a worker or a "deemed worker" at the time of her injury, then these proceedings are not maintainable as they were issued in breach of s 315 and s 318 of the WIMA.
When considering the WCA and the WIMA it is noted that s 2A of the WCA provides that the WCA is to be construed with, and as if it formed part of, the WIMA.
Section 4 of the WIMA defines a "worker" as: "4 Definitions (1) In this Act: … worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include: (a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or (b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or (c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or (d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while: (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.
In relation to the plaintiff's attendance on a rostered basis prior to the date of her accident, the defendants argued that the plaintiff would be considered a "worker" in respect of the WIMA and the WCA as she worked under a contract of service with the defendants.
The defendants in their Written Submissions at [11] refer to the fact that the plaintiff made a claim for compensation as a result of her injury pursuant to the provisions of the WCA.
The defendants at [15] of those submissions stated: "The difficulty that Vo has in this matter is that if her injury has arisen out of or in the course of her employment with Tran and Le, then her right to commence common law proceedings against Tran and Le is restricted by Part 6 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. (WIMA)"
The defendants at [17] further submitted that: "It is clear that these preconditions have not been met. It is common ground that Vo has not complied with these provisions and that if her injury did arise out of or was in the course of employment with Tran and Le then the proceedings are not maintainable."
It was, as submitted, common ground that the plaintiff did not comply with the preconditions set out in the WIMA. However, her position is that she has never constituted the proceedings or conducted them on the basis of or as a claim under or subject to the WCA or the WIMA.
Section 60 of the WIMA relevantly states: "60 Liability, benefits, common law and other matters (1) Provisions relating to a worker's entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act. (2) The 1987 Act, is, by operation of section 2A of that Act, to be construed as if it formed part of this Act. Note. See, in particular, sections 9-87C and 149-151AB of, and Schedule 6 to, the 1987 Act, as amended by the Workers Compensation Legislation Amendment Act 1998."
Section 4 of the WIMA defines "the 1987 Act" as "the Workers Compensation Act 1987".
Section 151 of the WCA provides: "151 Common law and other liability preserved This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides."
It is evident from the above provisions that neither the WCA nor the WIMA sought to extinguish the rights of a worker to seek damages against an employer under the common law.
Workers' compensation legislation in this State has not sought to abrogate common law remedies available to workers against their employers. There have, of course, been amendments to the WCA with a view to limiting damages. Section 8 of the Workmen's Compensation Act 1910 stated: "8. In every case where the injury is caused by the personal negligence or wilful act of the employer, or some person for whose act or default the employer is responsible, the following provisions shall apply : - (a) Nothing in this Act shall affect any civil liability of the employer independently of this Act. (b) The workman may, at his option, either claim compensation under this Act, or take such proceedings as are open to him independently of this Act : Provided that the employer shall not be liable to pay compensation or damages, both independently of and also under this Act, and shall not be liable to pay compensation or damages independently of this Act except in case of such personal negligence or wilful act as aforesaid."
Similar provisions were contained in s 63 of the Workers' Compensation Act 1926 where it was stated: "63(1) Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. (2) In such case the worker may, at his option, proceed under this Act or independently of this Act, but he shall not be entitled to compensation under this Act, if he has obtained judgment against his employer independently of this Act."
As a matter of legislative history the Workers Compensation Act 1987 repealed the 1926 Act. Section 149 of the former Act abolished workers common law remedies against employers. In 1989, the Workers Compensation (Compensation Court Amendment) Act 1989 re-established common law rights. As the law currently stands, neither the WCA nor the WIMA extinguish a worker's common law right to damages against their employer.

[10]

Notice of Motion

I turn to the issue raised by the defendants, namely, that the plaintiff makes a wholly inconsistent claim in that it is based upon the premise that the injury was not suffered in circumstances arising out of or in the course of her employment by the defendants.
In its Statement of Claim dated 18 August 2014, the plaintiff pleaded: "2. At all material times the defendants were occupiers of the premises being Shop 2, 50 Park Road, Cabramatta and had the care and control of those premises and owed persons entering those premises a duty of care to take reasonable care to guard against the occurrence of foreseeable injury. 3. At all material times the plaintiff was a casual employee of the defendants."
As background to the plaintiff's receipt of workers' compensation benefits, in the plaintiff's Evidentiary Statement at [28], she stated: "I was given forms to pay for the hospital but because I was an overseas student they called my boss in, My Le. They asked if it was a workers compensation claim and my boss, My Le said no, as the accident did not occur on my rostered work day. She then paid for the hospital costs."
Dr Mark Rider was the surgeon who operated on the plaintiff on 14 February 2012. This involved an operation described as "Repair Mutilating Left Hand Injury". Dr Rider's consultation notes cover a period from 14 February 2012 to 7 November 2012. In an entry dated 24 February 2012, Dr Rider made the following note: "Patient's friend Amy called to inform that she had spoken to the owner of the shop and was told that patient was not working that day and therefore would not be covered by WC [NSW WorkCover]. I informed her that I would call WorkCover and discuss the issue with them."
The evidence suggests that immediately after the date of the accident the plaintiff and the defendant both acted upon the basis that her claim was not a workers' compensation claim.
However, on the date of the accident, NSW WorkCover received a WSMS Incident Notification (Exhibit B1, Tab 1). There is no reference to the identity of the person who completed the notification. It lists the plaintiff as the injured person and states that her relationship to the notifier is "Worker". The notification also stated that the plaintiff's relationship to the entity notifying was that of "Worker". An inference may be drawn that the person who submitted the notification was one or other of the defendants or someone on their behalf. It is consistent with an obligation by an owner/employer of premises to notify the relevant authority of the occurrence of an accident.
Moreover, the defendants/employers submitted a Work Cover NSW Employer Injury Claim Report on 20 March 2012. The plaintiff it appears followed suit and submitted a Work Cover NSW Worker's Injury Claim Form on 22 March 2012.
The defendants in their Amended Defence at [10] pleaded: "10. Further, and in answer to the whole of the Plaintiff's claim, the Defendants say: (a) That by claim made upon the Defendants and upon the WorkCover on or about 22 March 2012 the Plaintiff asserted that she suffered injury on or about 13 February 2012 whilst in the course of her employment by the Defendants. (b) In reliance upon the representation that the Plaintiff has been injured in the course of her employment by the Defendants, the Defendants accepted the Plaintiff's claim for Workers Compensation and paid to the Plaintiff $178,887.75 as at 21 May 2015 and have continued to make payments of compensation. …"
As I have noted, it was the defendants, not the plaintiff, who first represented that the plaintiff's injury had occurred whilst the plaintiff was in the course of her employment.
The defendants in their tender bundle included a letter from Xchanging (an agent for the NSW WorkCover scheme) to the plaintiff also dated 15 March 2012. In this letter, Xchanging informed the plaintiff that her claim for workers' compensation benefits had been reviewed and liability was accepted. The letter informed that weekly compensation payments would be paid by the defendants at a rate of $127.68 gross per week.
No other information is provided by either the plaintiff or the defendants as to when and by whom any workers' compensation claim was lodged.
There is other evidence as to the basis upon which the defendants' workers' compensation insurer accepted liability. In other words, the basis for any decision accepting the plaintiff as having an entitlement to workers' compensation is unknown, in circumstances in which she was not rostered for work on the day of her accident and was not working at the defendants' request that day. She had attended the shop premises, as noted above, to purchase a drink and responded to her friend's request to help her finish up cleaning duties.

[11]

Employers' Liability at Common Law

Against this background, the issue arose as to whether the plaintiff's injury should be considered as one that occurred in the course of her employment with the defendants. In the context of workers' compensation law in this State, s 4 of the WCA defines injury as "personal injury arising out of or in the course of employment". The use of the disjunctive in that definition is significant, in that two quite different tests are involved. It is established that the second limb of the definition "in the course of employment" involves a temporal element and does not of itself contain a causative element: Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [72] per Allsop P, Beazley JA (as her Honour then was) and McColl JA. It was also there noted that difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, by reason of the possible fluidity of employment circumstances. The relevant principles in this respect were stated in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473.
The phrase "arising out of" is a long standing one in workers' compensation statutes. For example, s 5 of the Workmen's Compensation Act 1910 stated: "5. If in any employment to which this Act applies, personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject to the provisions of this Act, be liable to pay compensation in accordance with the Second Schedule to this Act." (emphasis added)
In Badawi it was noted that the meaning of "arising out of…employment" is settled in that it involves a causative element, an element which was originally enacted in the United Kingdom in order to give rights to workers "…that were more extensive than common law rights and which used non-technical language in doing so": Badawi at [73].
Accordingly, the test of "in the course of employment" is conditioned by reference to an employee's service during or in his/her employment whilst the phrase "arising out of…employment" is conditioned by the notion of causality with employment: Dover Navigation Co v Craig [1940] AC 190 at 199.

[12]

Employment Issue

It was submitted on behalf of the defendants that the plaintiff's claim in the proceedings should be dismissed: Defendants' Outline of Argument on Liability at [43].
The defendants sought to establish the issue of "employment", firstly, upon the basis of the work tasks that the plaintiff was performing at the time of the accident and, secondly, upon the basis of the provisions of s 151E and the definition of "injury" in s 4 of the WCA: "…means personal injury arising out of or in the course of employment."
The submission for the defendants was that, although the plaintiff was not rostered on for work on the day of her accident and that she stopped at the defendants' shop to buy a drink, nonetheless by responding to the request from Ms Hoa to help her finish the cleaning up operations: "… in essence she was performing 'overtime' work at a time of her own choosing for which she may or may not have been paid": Defendants' Outline of Argument on Liability at [3]
In his oral submission Mr Polin SC who appeared on behalf of the defendants, accordingly argued that by reason of the fact that the plaintiff, on the day of the accident, was performing the same type of work that she normally did perform when she was rostered on as a casual employee, this provided the basis for a finding that she was in fact working on the shop premises as an employee and not in another capacity of lawful entrant.
Mr Polin posed the question as to what the plaintiff was doing when she was injured: T 3 February 2016, p 99:50. He referred to evidence given by her in cross-examination in which it was put to her that the activity that she was doing when her accident occurred was exactly the same sort of cleaning duties that she would normally do: T 101:1-15.
The submission was "she's doing exactly her job. So what she is essentially doing is nothing more than this. She's doing overtime in circumstances where she is the one who is deciding. She is not being asked to do it, I accept that. She decides to do some overtime at the request of a friend and there is not necessarily an expectation that she will be paid for it." (T 101:14-20)
Mr Polin acknowledged that on the evidence no one had ever told the plaintiff in the past that on the day of the accident she should be working "overtime": T 102:30-35. Mr Polin again posed the question as to how the plaintiff could be anything other than a worker in circumstances where she herself acknowledged she was undertaking work that was identical to what she normally did: T 103:1-10.
In the submissions for the plaintiff it was contended that she clearly was not working as an employee on the day she injured herself, that she had attended the shop premises with the intention of making a purchase of a drink and that the only circumstances which resulted in her helping her friend with the cleaning work was by reason of her friend's request to help her to finish up at work. In other words, these circumstances merely amounted to a voluntary response of help being rendered to a friend and was not the performance of work in the course of employment.

[13]

Decision on the Issue of "Employment"

I do not consider that the plaintiff's status as at the date of the accident was as an employee of the defendants. It was accepted that she had fixed rostered days (Wednesday, Thursday and Friday) in which she worked limited fixed hours on each day as a casual employee. The defendants did not ask or direct her to work that day.
There is no basis, in my respectful opinion, for the submission that the plaintiff was working "overtime". The word "overtime" has a well-accepted meaning as work performed by an employee at the express or implied request of an employer additional to ordinary hours of work. In this case, the evidence established that no request had been made by or on behalf of the defendants to the plaintiff to engage in work for them on the day of her accident and indeed the evidence suggests that they were completely unaware of her presence on their premises on that day. The rostered hours of work defined her hours of attendance for the purposes of performing work as a casual employee. There is no evidence of any practice or inducement by the defendants for the plaintiff to work hours other than the casual hours for which she was paid. Indeed the conclusion from the evidence was that the plaintiff was not paid for the work she performed on the day of the accident nor did she have any expectation of being paid for having assisted her friend.
The nature of the plaintiff's presence is defined by what her intention was. She said she intended to attend the shop premises for the purpose only of purchasing a drink. The request by her friend Ms Hoa to help her was a spontaneous one. It was not planned or had been previously requested by Ms Hoa or anybody else. The plaintiff's response to Ms Hoa's request was no more than a voluntary or gratuitous and beneficial act undertaken solely for the purposes of assisting Ms Hoa.
In the plaintiff's case the relationship of employer/employee had no bearing upon her presence at the shop premises. It was not due to any obligation owed by her as employee. Her attendance when injured was not one pursuant to any employment related practice.
There is, in my opinion, no basis for the conclusion that at the time of the accident the plaintiff was working as an employee, that is to say, that she was in the course of her employment with the defendants. There is no basis for the contention that the activity she was assisting with when her accident occurred arose out of her employment.

[14]

Occupier's Liability

The relationship of occupier and entrant is one of the established categories of relationships in relation to which the common law of negligence imposes a duty on the occupier to take care of the entrant: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; 80 ALJR 1.
The scope of an occupier's duty is one to take reasonable care in the circumstances for the entrant's safety, and to protect him/her from risks of injury that can be foreseen and avoided: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; 61 ALJR 180.
The plaintiff in its Written Submissions at [72] submit: "The duty included the obligation to take precautions a reasonable person in the circumstances would have taken by way of a response to the risk that a person such as the plaintiff may slip on a wet surface and come into contact with a dangerous machine electrically charged and in the course of that slip suffer injury by a part of the plaintiff's body coming into contact with the open crushing rollers of the machine."
It was also submitted at [76]: "In the plaintiff's submission the risk of slipping in the vicinity of an unguarded machine electrically charged and coming into contact with a machine which could cause harm was not insignificant and a reasonable occupier in the position of the defendants ought to have appreciated the potential for a person such as the plaintiff to slip during the cleaning process. Guarding the machine and ensuring the power was off could not be seriously argued as being unreasonable responses."
Accordingly, the plaintiff submitted that negligence provisions contained in ss 5B and 5D of the CLA have been satisfied.
In her first Evidentiary Statement, the plaintiff said that the sugar cane machine was mounted on wheels. It, together with another wheel-mounted bench top, was positioned at the entrance of the shop premises, just inside of the sliding roller doors. These formed a barrier between staff and customers during business hours.
The plaintiff said that the sugar cane machine and the other bench were usually moved for cleaning and when she arrived on the day of the accident they were already moved. In paragraph 18 of her statement she stated: "To the best of my knowledge, and as previously demonstrated by my boss, the sugar cane machine is cleaned as follows:- (a) It is first switched off, and then unplugged; (b) Chemicals are never used, only water; (c) The final step to cleaning involves powering the machine on so you can flush it with water."
In respect of certain cleaning duties she stated at [19]-[21]: "To clean the floors, we would usually use water and a green coloured liquor detergent. I cannot remember if this detergent made the floors more slippery than water alone. I used a coconut broom to push the water outside, towards the front of the shop. I recall there was no drain in the shop and this is how the cleaning was usually done. When I finished pushing the water outside, I put the coconut broom back in the corner right of the door. At this time, the floor was still quite wet from the water."
The plaintiff said she turned to walk back towards Ms Hoa, who was somewhere in the back of the shop, and slipped, she said at [22]: "…I instinctively put my hands out to steady myself and the sugar cane machine turned on. The machine appeared to be plugged in."
She then proceeded at [23]-[25]: "I was wearing thongs on my feet on the day of the injury. I would usually wear shoes designed for standing for long periods when I was rostered to work. These shoes were brought from the chemist. I was not instructed to buy these shoes for work, I bought them for my own comfort. The next thing I realised was my left hand was stuck in the sugar cane machine and I was surprised. I immediately pushed the stop button then reversed the motor when I realised my hand was still stuck. When I finally managed to pull my hand out I noticed it appeared severed. I was in a state of shock but I called out to My Hoa who panicked when she saw me. I then telephoned my boss and advised him what had happened. She called the ambulance.
There is corroboration in contemporaneous records in evidence as to the fact that the plaintiff slipped, fell and sustained her injury in or on the sugar cane machine. In particular, I note the following: 1. Clinical progress notes of South Western Sydney Local Health District (Liverpool Hospital) handwritten entry 13 February 2012: "…slipped & fell L hand gripping on to sugar cane presser to break fall Crush injury to L hand …? Finger." (Exhibit B1, p 147) 1. Hand Injury Trauma Service physiotherapy (continuation notes), 9 March 2012 "…injured hand when fell into [onto?] sugar cane machine (helping friend). (Exhibit B1, p 174) 1. In a WorkCover WSMS Incident Notification report: "The injured person a casual employee was cleaning the area and sugar cane juice machine before closing of the shop in the afternoon. Somehow (she does not recall) she slipped and her left hand came into contact with the machine. She does not recall the details of the incident and becomes very uneasy when questioned regarding the details of the incident. She said she want [sic] to forget the incident." (Exhibit B1, p 4)
The plaintiff when giving evidence appeared to be a person of quiet disposition and impressed as an honest witness who did not exaggerate or embellish her evidence. The conclusion I reached was that she was both honest and reliable in her account of the circumstances in which she attended at the subject premises and as to the circumstances in which she was injured. I have no hesitation in accepting her evidence in relation to those matters.
As noted above, the plaintiff's accident was reported to the WorkCover Authority. A notification was received on 13 February 2012 by the Authority.
The WorkCover inspector, Officer Bishwa, on 6 March 2012 conducted a visit of the workplace and spoke to the owners of the business. Photographs were taken of the machine as set out at pages 12-14 of Ms Pok's report.
In respect of the WSMS Incident Notification Report issued by WorkCover on 29 May 2012, it was stated: "Workers/Persons may be exposed to risk to their health and safety from crushing injury whilst operating or cleaning sugar cane juice machine due to contact with the crushing rollers for machine are accessible when the hinged guard is removed for cleaning and other purposes. Recommendation: This matter does not warrant further investigation due to the following mitigating circumstance as outlined in the WorkCover Compliance Policy and Prosecution Guidelines …"
The Recommendation then sets out three reasons as "mitigating" circumstances. They included: "3. The PCBU have complied with Improvement Notice and fitted electrical interlocking guards which ensures that the machine will not start when the guard has been removed."
The Improvement Notice had been issued on 8 March 2012. The Notice stated the inspector's belief that the defendant proprietors of the business were in contravention: "… you are contravening a provision in circumstances that make it likely that the contravention will continue or be repeated by the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2011, clause 208.
At p 19 of Exhibit B1, the Inspection Outcome Summary records the following: "3. Actions agreed to be taken by Duty Holder The guarding to the rollers to be improved, such as by providing interlocking mechanism to prevent inadvertent start of the machine during cleaning." (p 19)
The expert report of Ms Tang Pok, Engineer, dated 13 June 2014, was tendered in evidence (Exhibit B1, p 37ff). Ms Pok inspected the juice machine on 11 March 2014. The inspections did not show that the machine then had a magnetic interlock mechanism.
Ms Pok's report analysed the machine on two bases: first, on the assumption that the guard had been removed and, secondly, on the assumption it had been in place at the time of the incident. The report states: "4.1.4.3 Guarding Based on the information received and the interview, it is not clear to the author whether the guard plate was in place at the time of the incident. Ms Vo appeared distressed when describing the incident and this subject could not be clarified further. If the guard plate was not in place at the time of the incident, then the opening of approximately 110mm wide by 200mm tall was a hazard, particularly as the sugar cane machine was powered and did not have an interlock fitted to it at the time. If the guard plate was in place at the time of the incident: 1. The feeder holes were approximately 55mm in diameter. 2. The Australian Standard states that 'if the length of the slot opening is less than or equal to 65 mm, the thumb will act as a stop and the safety distance can be reduced to 200 mm.' 3. The distances measured from the feeder hole opening to the rollers: a. Vary from 70mm to 105mm for the top feeder hole; b. Vary from 85mm to 105mm for the bottom feeder hole. 4. These distances are less than the 200mm safety distance specified by the Australian Standard." (Exhibit B1 at pp 87-88)
In her conclusions, Ms Pok stated that she was of the opinion that the plaintiff sustained her injury by reason of "inadequate guarding". This was stated upon the basis that: (a) If the guard was not in place at the time of the incident then a hazard existed particularly as the machine was powered and did not have an interlock fitted to it at the time. (b) If the guard was in place at the time, the distances from the feeder holes to the crushing rollers are less than 200mm safety distance specified by the Australian Standard. (Exhibit B1, p 95)
Ms Pok's report contains photographs (figures 28 and 29) which show the author's hand penetrating the top and bottom holes to which she refers in her report, showing the fingers of her hand penetrating through the top hole and the bottom hole (Exhibit B1, p 75).
The plaintiff in cross-examination denied that she was in the course of actually cleaning the machine but that she had finished cleaning the floor and was walking back when she slipped. She stated that she had no other precise memory of the events leading to her accident. In that respect she stated: "It's hard to remember. I mean, when it happened it happened very suddenly, and over the time it's hard to remember exactly how my hand went into the machine."
As earlier noted, no evidence was called in the defendants' case either from the defendants, an expert or from any other person. The defendants in their Defence submitted that they were not negligent in failing to take precautions against risk of harm to the plaintiff by reason of the provisions of s 5B(1) and (2) and s 5C of CLA. The defendants further contended that any injury suffered by the plaintiff is not causally connected to the acts or omissions of the defendants as 'causation' is defined by s 5D of the CLA.
The evidence establishes that the machine represented a hazard that was capable of causing an accident such as that which occurred on the date of the plaintiff's injury. The nature of the risk of injury and the circumstances giving rise to it have been properly identified by Ms Pok in her report. There has been no challenge to her analysis. She was not required for cross-examination.
The risk that existed on the date of the plaintiff's accident was foreseeable to any persons who were in proximity to the machine, whether they be employees, delivery personnel or other persons lawfully upon the shop premises.
There is no evidence that the defendants provided any warning by notices or otherwise of the potential risk or hazard associated with the machine. There is no evidence that the defendants gave instructions to Ms Hoa in respect of the machine and its safety or otherwise, or the need to take precautionary steps in her interests or in the interests of others lawfully upon the shop premises.
The evidence establishes that the only person other than the plaintiff on the shop premises on the day of the accident was Ms Hoa. There is no evidence suggesting the presence of either the defendants themselves or any other person supervising the shop premises. The plaintiff was lawfully present as a customer who had responded to Ms Hoa's request for assistance. The defendants, of course, were vicariously liable in respect of any negligent act or omission by Ms Hoa arising from or consequent upon her request to the plaintiff to assist her in completing the cleaning operations on the date of the accident. The defendants are also directly liable for the inadequately guarded machine.

[15]

Conclusion on Liability

As the WorkCover report and the evidence of Ms Pok established, the rollers of the juicing machine presented a danger to persons who might be in proximity to the machine if there was not adequate guarding or a mechanism that would ensure that the machine could not operate.
Ms Pok's report indicates that it was possible, even when a guard was on the machine, for the hand of a person to enter the top and bottom feeder holes. It is also clear from the plaintiff's account that the power to the machine was on at the time she slipped and her hand entered the juicing machine.
The relevant combination of circumstances were addressed in the WorkCover Authority report, namely an inadequately guarded machine, and the machine with the power left on at a time in which the cleaning process had begun, presented an extreme danger in the event that someone's hand by some inadvertent means, entered the feeder holes. The plaintiff's hand did, of course, enter the moving parts of the machine when she slipped on the wet floor.
There were practicable measures which could and ought to have been taken to eliminate possible risks. Subsequent to the plaintiff's accident the defendants, in compliance with the WorkCover notice, fitted a magnetic interlock device directed towards removing the risk that materialised and which caused the plaintiff's accident.
As for the safety mechanisms or guarding on the machine, it is clear from both the WorkCover Authority report and Ms Pok's report that cost effective remedial measures were available that could and should have been taken or put in place to eliminate the risks referred to in the expert reports.
The evidence based on the safety assessment on the machine by Ms Pok indicates, that merely increasing the safety distance by straight engineering methods, including by a longer feeder hole on the guard plate, would have avoided the accident. The option of developing an adequate guard was one not involving significant cost or other disadvantage. Similarly, providing an interlocking mechanism to prevent inadvertent start-up of the machine during cleaning as recommended by the Inspector in his Notice was a feasible method of reducing the risk in question (Exhibit B1, p 19).
The plaintiff, as I have stated, was an impressive witness. It was clear even from her giving evidence in the witness box that the trauma of the accident has left both physical and psychological effects upon her though she has candidly stated that she has endeavoured to put the accident, so far as is possible, out of mind and there has been some progress with her psychological condition.
There was no suggestion in cross-examination or in submissions that the plaintiff was misleading or exaggerating any aspect of her account of the accident or the circumstances attending it. Aside from it being put that she was in the act of cleaning the machine (which she denied) there was no substantial challenge otherwise to her account.
I have no hesitation in concluding that the plaintiff's account and the expert evidence establishes that the juicing machine, at the time of the accident, presented a real and foreseeable danger which could have been avoided by the remedial steps identified by Ms Pok. Added to this was the daily cleaning process which involved large quantities of water being utilised for cleaning the floor. Some unspecified agent (presumably a cleaning agent) had been added to the water.
The risk from the combination of circumstances to which I have referred, in my assessment, was one that was readily foreseeable and preventative by cost-effective precautions. There was a clear obligation on the defendants to employees and others who were on the shop premises to ensure that the plant and equipment used in the course of the business and the premises were safe. This is particularly so in the case of machinery involving moving parts capable of drawing a person's hand into the machine.
Accordingly, the prerequisites for a finding of negligence have been satisfied. As to the provisions of the CLA, the risk of having a hand stuck in the juicing machine was, on the evidence, including the expert evidence, foreseeable and being a risk that a reasonable person ought to have appreciated (s 5B(1)(a)). The risk was not insignificant where the machine was regularly used (s 5B(1)(b)) and where, in the event of the injury from it the likely consequences were serious. In the circumstances, a reasonable person in the defendants' position would have taken available precautions against the risk of harm, such as the fitting of interlocking guarding (s 5B(1)(c)).
In summary, I consider that there was a high probability of harm from the juicing machine in the absence of such precautions (s 5B(2)(a)), that the harm was likely to be of a serious nature (s 5B(2)(b)) and that the burden of taking the precautions was minimal (s 5B(2)(c)).
The evidence establishes the issue of causation. The plaintiff's physical and psychiatric injuries arose directly from the defendants' failure to take steps to render the juicing machine safe. But for such failures, the plaintiffs' injuries would not have occurred: ss 5D and 5E of the CLA.

[16]

Contributory Negligence

The defendants in their Defence at [6] submitted the following particulars of contributory negligence: "(a) Failing to take care on a wet surface; (b) Failing to wear appropriate footwear whilst walking on a wet surface; (c) Failing to take precautions and turn off the machine; and (d) Failing to take care for her safety."
Principles regarding contributory negligence are governed by Division 8 of Part 1A of the CLA. The test of contributory negligence is an objective one. The standard of care required of a plaintiff who suffered harm is that of a reasonable person in the position of that plaintiff. Contributory negligence is determined on the basis of what the plaintiff knew or ought to have known at the time.
In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) held that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's personal responsibility for his or her own safety.
The condition of the shop premises (including the condition of the juicing machine) posed a real risk to persons in the position of the plaintiff slipping on a wet floor and who "instinctively put [their] hands out to steady [themselves]".
The fact that the machine remained connected to the electricity supply contributed to the plaintiff's accident. The plaintiff had no notice or knowledge of the fact that power to the machine had not been disconnected.
There is no evidence that an entrant into the subject premises should have worn a different form of footwear. Further, there is no evidence of any advice having been given by the defendants to the plaintiff in respect of specific footwear required for her employment. Once having entered the shop premises, the plaintiff had no appreciation of the risk that the machine posed to her.
I accept the plaintiff's evidence that she was not cleaning the juicer at the time of the injury. She was not responsible for turning off the machine. That responsibility belonged to those working in and managing the subject premises and operations therein performed. It was the defendants' employee, Ms Hoa, who induced the plaintiff to enter that part of the shop premises where the floor was wet. No warning or advice was provided to the plaintiff as to the risk of slipping and falling upon a dangerous machine.
There is no factual or other basis for a finding of contributory negligence by the plaintiff.

[17]

Obvious Risk

The defendants in their Defence at 9 submit: "any risk of injury to the Plaintiff from cleaning the premises when the machine had not been turned off was an "obvious risk" as that expression is defined by s 5F of the Act and no relevant duty therefore existed to warn of that risk pursuant to s 5H of the Act."
Section 5F of the CLA was considered by NSW Court of Appeal in Laoulach v Ibrahim [2011] NSWCA 402. In that case, the appellant dived from the bow of a boat and struck his head on the sandy bottom of the bay which left him with incomplete C4 tetraplegia. Tobias AJA (Giles and Macfarlan JJA agreeing) held at [120] and [122]: "The expression " obvious risk " in s 5F(1) of the CL Act has been held by me to mean that both the condition and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgment: Jaber at [35]… As noted above at [84] the relevant standard lies somewhere between a trivial risk and one that is likely to occur. In Fallas I expressed the view that, as a general guide, the risk could not be "significant" unless there was a real chance of it materialising. As one must judge the issue prospectively and not retrospectively, the question is whether there was a real chance of the risk of what would clearly be significant harm occurring if the appellant dived from the position the vessel was in at the time he did so. "
In this case, the risk of injury to a person from cleaning the shop premises when the juicing machine had not been turned off from the power supply could not be said to have been one that was or would have been apparent to a reasonable person in the position of the plaintiff. The 'risk' arose from a combination of circumstances at the centre of which was a deficient and dangerous machine (with an inherent defect - an unguarded crushing mechanism) and the plaintiff having no knowledge of the capacity of it to cause injury as occurred. The combination of circumstances included: the slippery condition of the floor; the power to the machine being left on; the machine not having the appropriate safety guards in place; the absence of appropriate warnings and the fact that the plaintiff's hand could enter the unguarded mechanism of the machine.
The risk of injury to the plaintiff was not, in my opinion, an "obvious risk" as defined by s 5F of the CLA. As such the defendants have not established an evidentiary basis for a risk within s 5H of the CLA that displaced their duty to warn the plaintiff of the relevant risk.

[19]

Workers' Compensation Benefits: Obligation to Repay

As earlier discussed, the workers' compensation insurer of the defendants accepted liability for the payment of workers' compensation under the WCA. The actual basis upon which the workers' compensation insurer accepted liability is not the subject of evidence.
In cases where an employee has been paid workers' compensation benefits under the WCA and subsequently recovers common law damages from his or her employer, a statutory obligation operates to require repayment of the workers' compensation out of the verdict and judgment under which damages are payable to the plaintiff. Such an obligation operates to avoid double compensation.
In the present case, however, the unusual circumstances in which the plaintiff attended the defendants' premises in the capacity of a visitor or lawful entrant and not as a "worker" or employee and sustained injury gives rise to a common law liability of the defendants as occupiers and one to which the WCA provisions do not apply. On the basis of the finding which I have made, namely, that the plaintiff's injury did not occur in the course of her employment or arise out of her employment, the provisions of the WCA for repayment of workers' compensation previously paid do not, of course, apply. However, the plaintiff, through her counsel, properly acknowledged that in the event that she succeeds in obtaining a judgment in the present proceedings she cannot, and does not, seek double compensation for losses (including past wage loss and medical and other expenses) for which she has received compensation paid by the workers' compensation insurer of the defendants. In other words, the plaintiff accepts that in any award of damages in her favour she is subject to an obligation to repay to the workers' compensation insurer from any judgment. The obligation in this respect, it was accepted, arises not by statute but by operation of equitable and common law principles which apply to prevent double compensation and that give rise to an obligation upon her to repay the compensation previously paid from any damages awarded to her.
It was submitted by Mr Polin on behalf of the defendants that because the plaintiff received workers' compensation for past weekly economic loss as well as compensation for medical and other treatment expenses she in fact suffered no loss in respect of such past economic loss and expenses. Accordingly, so the argument ran, the plaintiff not being able to establish loss in those respects she is not entitled to recover any damages from the defendants in respect of such payments and expenses.
No authority was cited to support the proposition contained within it. Upon consideration, the submission should not be accepted.
In Franklins Self-Serve Pty Ltd v Wyber, supra, the Court of Appeal considered a case involving successive injuries involving different employers and/or tortfeasors and, in that context, the operation of the rule against double compensation. Whilst that case was accordingly based on different facts and raised different issues, observations made by Mason P in the course of his Honour's judgment in that case are instructive as to the principles concerning double compensation and the obligation to repay to avoid overpayment.
In the analysis in Franklins concerning the provisions of s 151Z of the WCA, it was noted that that section does not cover every possible eventuality where a worker has alternative rights against employers and strangers: at [54]. Mason P observed that there were a series of cases in which the Court of Appeal had recognised the existence of situations that are not covered by those statutory provisions. His Honour noted that in such cases, including cases falling outside the direct application of s 151B of that Act (which deals with the effect of recovery of damages from an employer on payment of compensation) the lack of statutory prescription did not mean that the court could not make an order to avoid double compensation and noted at [56]: "The response in such cases has been to apply the common law principle in the gap; and, in computing the plaintiff's damages, to deduct a sum representing the value of benefits received and receivable as compensation."
Mason P further observed at [82] that where a statutory scheme is not comprehensive as where s 15Z applies but only in part: "… general law principles may well be capable of providing answers to the consequential rights of parties where s 151Z is not engaged: see Mason and Carter, Restitution Law in Australia Chapter 6 'Contribution and Recoupment'. Legislation may be fairer and more efficient."
In cases where compensation has been paid and damages later obtained, Mason P further observed at [107] that where a party can sue for damages, despite having received compensation, the position would then be as follows: "…however, the recovery of damages by the respondent (worker) meant that she became liable to repay (to the NSW Egg Corporation) out of those damages the amount of compensation paid in respect of the 1989 injury which the NSW Egg Corporation has paid her in respect of that injury …" (emphasis added)
In that case it was held that the compensation paid by the NSW Egg Corporation should not have been deducted, and should have been left to be repaid by the worker to that corporation out of a higher award of damages: at [116].
Accordingly it was noted that the worker acknowledged that she was required to "repay" to the NSW Egg Corporation out of her damages, the monies received from that body on account of her injury: at [117]. That is the position in this case where the plaintiff makes a similar acknowledgement (indeed has given an undertaking) that the compensation will be repaid from any award of damages.
In the present case, the plaintiff if successful in recovering damages for past wage loss and treatment expenses, having received workers' compensation payments from the workers' compensation insurer, in my opinion, will be subject to a similar obligation "to repay" the compensation. Damages in other words should be awarded, inter alia, for past economic loss and past treatment expenses but subject to an obligation to repay out of the damages the amount received on account of her injuries from the workers' compensation insurer.
I do not, with respect, accept the submission made on behalf of the defendants that because the plaintiff received workers' compensation payments in respect of past wage loss and treatment expenses she therefore suffered no "loss" and therefore cannot claim damages in respect of the same. Again, no authority was cited in support of the defendants' submission. Indeed, the submission is contrary to the reasoning of, and principles applied by, Mason P in Franklins Self-Serve, supra. The plaintiff was not paid wages and incurred treatment expenses. Workers' compensation as paid was always subject to an order being made for repayment in the event of common law damages being awarded to her in respect of the same accident and injuries.

[20]

An Alleged Estoppel Defence

The defendants, as earlier noted, sought prior to the hearing to add a defence based on estoppel. In this respect a Notice of Motion dated 28 January 2016 was filed. The defendants in the application sought to add a further paragraph (paragraph 10) which, in part alleged: "10(a) That by claim made upon the Defendants and upon WorkCover on or about 22 March 2012, the Plaintiff asserted that she suffered injury on or about 13 February 2012 whilst in the course of her employment by the Defendants."
The proposed amended pleading proceeded to allege that the defendants accepted the plaintiff's claim for compensation and paid her $178,887.75 as at 21 May 2015 and payments thereafter.
It was further alleged that the plaintiff made a wholly inconsistent claim that the injury was not suffered in the course of the employment or arising out of it.
The defendants sought to rely upon a defence that the plaintiff was estopped from claiming, as she did in the proceedings, by reason of: "…the representations she previously made and/or by reason of the facts assumed by both the Plaintiff and the Defendants when payments of compensation were made by or on behalf of the Defendants."
Particulars of the proposed defence stated that: "…the Defendants rely upon the principles of representational estoppel and/or conventional estoppel."
The evidence concerning the circumstances in which, and the basis upon which, a claim by or on behalf of the plaintiff for compensation was made has been referred to above.
The defendants have not, by my assessment of the evidence, established that the plaintiff made a representation of fact upon which either the workers' compensation insurer or the defendants themselves acted to its or their own detriment. The plaintiff, as I have stated, is not to be taken as making what might be termed a representation as to a legal conclusion, namely, that she was at the material time an "employee". Even if it could be said that she did make such a representation that would not constitute a representation as to a fact sufficient to found an estoppel. I do not consider there is any estoppel that operates in this case to prevent her from pursuing her common law claim against the defendants in respect of their liability as occupiers of premises.
The Notice of Motion dated 28 January 2016 should be dismissed.

[21]

Damages

On 28 January 2016 the plaintiffs filed a Schedule of Damages. It quantifies the plaintiff's claim at a total of $1,419,854.64. The Schedule was as follows: 1. Non-Economic Loss 50% of a most extreme case pursuant to s 16 of the Civil Liability Act 2002 (NSW): $297,000.00 2. Past Economic Loss $127.00 pw up to and including the date of trial (rounded off to 4 years): $26,416.00 3. Past Lost Superannuation Contributions @ 11%: $2,905.00 4. Future Economic Loss Taking into account a residual earning capacity that the plaintiff has to perform junior bookkeeping or accounting work but only in circumstances where she is not exposed to other people and is left to work by herself and further taking into account her psychiatric illness together with her physical restrictions - $750.00 per week x 833.8 less 15%: $531,548.00 5. Future Lost Superannuation Contributions @ 13%: $69,101.00 6. Future Paid Domestic Assistance (The plaintiff relies upon the opinions expressed by Ms Moodley, Occupational Therapist) as follows:- (i) The plaintiff will require commercial assistance at least for the next 31 years at an average of 5 hours per week to undertake heavy domestic work around the home which could not otherwise be the subject of assistance from the plaintiff's partner or other family members and claims the commercial rate of that care at $46.00 per hour or $230.00 per week x 833.8: $191,774.00 (ii) The plaintiff claims the cost of a person to undertake heavy work in the nature of a handyman, property maintenance or heavy cleaning contractor: $20,000.00 (iii) The plaintiff claims the cost of future equipment: $3,343.00 (iv) The plaintiff claims the cost of alterations to her motor vehicle: $4,137.00 (v) The plaintiff claims the cost of occupational therapy of 6 hours @ $150.00: $900.00 (vi) The plaintiff claims the cost of occupational rehabilitation services: $5,000.00 7. Future Treatment The plaintiff claims the cost of future treatment taking into account the opinions expressed by the medical reports served by the plaintiff in the proceedings together with the reports produced by the psychiatrist in the conclave and seeks an allowance of medical treatment including all medical services at a modest amount per week which would extend to include services for pharmaceutical needs, general practitioner consultations, consultations with a specialist, consultations with a psychologist and consultations with a psychiatrist for life: $148,945.00 8. Out-of-Pocket Expenses (Workers compensation payments for medical treatment and for Medibank Private Health Insurance): $118,785.64 9. Damages pursuant to Fox v Wood: $0.00 Total: $1,419,854.64 Plus costs as agreed or assessed
In addition to the Schedule of Damages, the plaintiff provided a Schedule of Payments.

[22]

The Plaintiff's Physical and Psychiatric Injuries and Disabilities

Before coming to the assessment of individual heads of claim, it is appropriate to identify and assess the evidence, in particular the medical evidence, as to the nature and extent of (a) the plaintiff's physical injuries as well as the disabilities and impairment resulting from those injuries and (b) her psychiatric disabilities and impairment.
In summary, in those respects:

The nature of the injuries she sustained - crush injuries to the fingers of her left hand and psychiatric condition.
The amputation of her left ring finger effective at the proximal interphalangeal joint.
The disfigurement resulting from the injuries.
The pain and suffering associated with the injuries.
The physical impairment resulting from the injuries.
The psychiatric impairment caused by the physical injuries, disfigurement and impairment.

In the assessment of each of these matters it is noted that there is a degree of interconnection and overlap between them. The overall assessment however must bring into account each of the above injuries and consequential disabilities and impairments.
As to the physical injuries suffered by the plaintiff the following matters arise: 1. Dr Mark Rider who undertook surgical treatment of the plaintiff at Liverpool Hospital noted the following findings on operation. "A mutilating injury of all four fingers sparing the thumb. There were multiple large burst lacerations on all surfaces of each finger with severe crushing. Index Finger: Crushed stellate nailbed injury, volar pulp wound, separate volar longitudinal burst wound with crushed subcutaneous tissues, bruising of neurovascular bundles and some relatively minor disruption of the pulley system. Middle Finger: Loss of most of the distal phalangeal pulp skin but with adequate subcutaneous tissue remaining. Comminuted distal phalangeal fracture and overlying nailbed wound. Fractured neck of middle phalanx. Crushed, burst volar skin wound. Disruption of A3 and partial A4. Tendon neurovascular bundles crushed but intact. Ring Finder: This was the most significantly injured with non-viable skin and significant loss of bone and soft tissues. Partial central slip avulsion. Little Finger: Very similar findings to the index finger." (Exhibit B1, p 173) 1. Dr Rider gave a number of follow-up reports on the plaintiff's injuries. On 29 May 2012, in a letter to the general practitioner, Dr Pope, he stated: "[The plaintiff] is now over three months following her mutilating hand injury. She is making very poor progress. This is in part due to the severity of the injury with extensive scar and adhesion formation. However more significant at this time are her psychological and pain issues. I have advised a last attempt at passive flexion strapping with the Hand Therapists but I am not sure how motivated she is for this. I am pleased to say she has now started with the Parramatta Pain Clinic. There are a number of referrals outstanding from the last time I saw her and we will chase these up. There are no surgical options at the moment and I have therefore not arranged to see her for two months although she is welcome to return sooner if there are any changes. (Exhibit B1, p 203) 1. On 10 July 2012, Dr Rider wrote to Dr Pope, noting that the plaintiff had made some "holistic progress" since last seen. He considered that she was likely to benefit from a cosmetic prosthesis. From a physical point of view he noted that she could return to one-handed or office-type work from the following month. He noted that there were "significant ongoing psychiatric issues which may prevent this and we will see Dr Nguyen's input": Exhibit B1, p 213. 2. On the same date, Dr Rider in a letter to Dr Nguyen, noted his above prognosis that from purely a physical point of view he considered that the plaintiff could return to some sort of one-handed or office-type work. He stated: "I suspect the main barriers to this are now psychiatric. She has today said she is too frightened to return to the same workplace": Exhibit B1, p 275. 3. On 4 September 2012, in a letter from Dr Rider to a Mr Bhatt of Xchanging, Dr Rider noted that her little finger was then currently her main functional problem. He stated: "It has very little active movement and I think combined with a more severely injured middle and missing ring finger prevents her from having a broad grip …": Exhibit B1, p 276. 4. On 26 September 2012, Dr Rider wrote to Dr Pope, noting that it was then two weeks following "extensor Tenolysis of the little finger, closed manipulation under anaesthetic in the remaining fingers and Tip Revision of the middle finger: Exhibit B1, p 362. 5. On 7 November 2012, Dr Rider wrote to Dr Pope noting that the plaintiff had lost some "operative gains" in range of movement but it still had worthwhile benefit particularly in grasp": Exhibit B1, p 349.
In the report on the conclave between Dr McKessar and Dr Rea, Plastic and Reconstructive Surgeon, dated 26 August 2015, the following matters were noted:

There was minimal complaint of pain, with no evidence of any complex regional pain syndrome.
Good but slightly reduced function in the index finger with minor sensory disturbance in the digital pulp.
Slightly reduced function in middle finger with some sensory disturbance.
Amputation of the ring finger effective at the proximal interphalangeal joint.
The little finger - full sensation with good function except in the distal interphalangeal joint.

It was also noted:

A severe psychiatric disturbance was deemed by psychiatrists (presumably a reference to Dr Nguyen) to be a combination of the severe PTSD and depression. This resulted in minimal use of the thumb and index finger and the plaintiff not being prepared to expose her left hand to others.
That she was unfit for work requiring normal bimanual hand dexterity, including lifting of other than light objects. It was stated that she was likely to be able to pursue accountancy work by reason of good left thumb and left index finger function.
Dr Rea had noted that the plaintiff had not yet tested her accounting skills in the workplace. The fear of eventually having to work with other people who may see and enquire about her left hand, caused her a lot of anxiety.
Dr McKessar considered that the plaintiff should be able to perform most, if not all, domestic functions around the house.
Dr Rea considered the plaintiff would have a limitation of domestic duties, examples of which are set out in the conclave report.
The plaintiff could well require psychiatric and psychological counselling to help her accept her hand injury and to persuade increased utilisation.
The physical state of her left hand should not prevent her from indulging in her pre-injury and post-injury social activities. Her psychological response to injury was the principal factor determining that question.
Dr Rea noted that the plaintiff was self-conscious about her disfigurement and tries to conceal it whenever possible.
In relation to prognosis, the plaintiff's minimal use of the left or non-dominant hand, if persists, will result in progressive joint restriction, and it is desirable for the plaintiff to perform work such as could be determined by her progressive accounting expertise.

In her first Evidentiary Statement, the plaintiff said that she felt excruciating pain at the time of the accident.
The plaintiff stated that she intends to apply for accounting roles but does not know whether she will be successful in obtaining one. She stated at [7] and [8]: "I am now considering obtaining roles involving only data entry and bookkeeping as these roles are not client facing. I do not know what my chances are of obtaining niche roles like that, however, I will try."
She stated that over previous months she has been working on overcoming psychological fears. She said that she still had a lot to work on, and continued to consult Dr Nguyen, who had been helpful to her: at [14].
The plaintiff first saw Dr Nguyen on 25 May 2012. The plaintiff reported extreme distress resulting from the trauma and reported PTSD symptoms since soon after the trauma, including intrusive recollections of it and distress on exposures to triggers that reminded her of the trauma. She reported nightmares about the trauma on a frequent basis.
She stated that she sees Dr Nguyen once every three months and that each visit costs her $150. He prescribed for her Avanza (15mg) once per day. These help with her depression and one box of that medication costs her $8 per month. On the plaintiff's evidence, she has seen Dr Nguyen on three occasions in the 2015 year.
The plaintiff said she has attended on Dr Yehia, General Practitioner, who has prescribed her Panadol has and has also recommended physiotherapy. She had not commenced physiotherapy but estimated the cost of $65 per session.
The plaintiff said that she does most of the household work with her right hand although she does at times struggle doing so, and it takes her longer to complete some tasks.
The plaintiff said that she still suffers from depression as a result of the injuries and the appearance of her hand. She said "I still keep my hand covered, however, I only do so when I go out": at [23].
She said that she is still "paranoid about people staring at my hand and passing judgment": at [24].
The plaintiff said that she still has restrictions, pain and difficulties with lifting and carrying, pushing and pulling, grasping, manipulating objects, operating a keyboard and driving due to her left hand injuries: at [25].
The plaintiff also reported avoidance symptoms consistent with PTSD. On 25 May 2012 she reported avoiding thinking or talking about the trauma and avoiding the Cabramatta area where the injury occurred.
She also reported hyperarousal symptoms.
Dr Nguyen in his report of 20 January 2013, stated that in his opinion the work related injury had been a major and significant contributor to the development of the PTSD and her subsequent panic attacks: p 5.
Over the period he was treating her, he reported that her PTSD symptoms improved but that she still had what he referred to as "a great deal of shame' about the appearance of her hand and found it difficult to uncover it in public: Report at p 6.

[24]

Conclusions as to the Plaintiff's Psychological/Psychiatric Disability

There is no dispute on the medical evidence that the plaintiff suffered, and continues to suffer, with psychiatric disabilities, diagnosed by examining psychiatrists to be a combination of severe PTSD and Depression. Doctors Rae and McKessar noted that these conditions have effectively resulted in the plaintiff only minimally using her left thumb and index finger and not being prepared to expose her left hand to others: Conclave report, 26 August 2015 at p 2.
As noted, the plaintiff's own evidence, and her history provided to Doctors Nguyen and Lewin, is that subsequent to December 2014 her PTSD and Depression improved. Accordingly, the plaintiff's psychiatric disability in the period from February 2012 to December 2014, a period of almost three years, was a period in which the plaintiff was markedly affected by her psychiatric medical condition.
The plaintiff, on an ongoing basis, remains with a diagnosed psychiatric condition although at a reduced level after December 2014. She has continued to consult Dr Nguyen and continues to take prescribed medications. She remains very self-conscious about the appearance of her amputated index finger. It is clear from the conclave report of Doctors Rae and McKessar that they consider that she requires further support in dealing with her psychiatric condition: see conclave report at p 3. In that report, Dr Rae commented "The patient needs assistance in managing her anxiety and depression as a result of the injury (sic) her left hand." (conclave report at p 3, Vol 1 at p 34)
In the conjoint report of Dr Lewin and Dr Bertucen the diagnosis was one of Chronic PTSD it being noted that there had been some response to treatment provided by Dr Nguyen: Joint tender bundle, conjoint report at p 37.
Whilst Doctors Lewin and Bertucen considered that in general terms the plaintiff was fit to work in the field of accountancy, this is to be read subject to the comment that there are certain fields of work in the accounting field in which she would be "more vulnerable" as stated in their report. In that respect, the scope of work or positions suitable for the plaintiff have been and will continue to operate as a limitation upon her work capacity in the accounting field.
As noted above, the plaintiff's evidence is that she intended to seek out work in restricted areas, namely, data entry and bookkeeping.
In assessing future economic loss some allowance must, in addition to her physical disabilities, be made in the assessment for ongoing effects of the plaintiff's residual psychiatric injury including their effect upon her employment prospects. On the evidence, the field of possible employment available to her may be restricted to work positions where she can avoid the embarrassment of working face-to-face with clients and others.

[27]

Future Economic Loss

The plaintiff's claim for future economic loss was put on one of two separate bases. The first was a claim on the basis of $750.00 net loss per week, it being noted that the plaintiff is now 36 years of age. The claim is based on average net earnings allowing for a small residual earning capacity. This is put on the basis that the plaintiff, but for the injury, would have been earning a salary as a bookkeeper, accounts clerk or accountant. The claim is calculated at $531,548.00 together with future loss of superannuation.
The alternative basis for the claim is that having regard to the plaintiff's "young age" and her position as a student, damages for future lost earning capacity would be by way of a "buffer" in accordance with principles stated in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 38.
In his final oral submissions Mr Baran submitted that the plaintiff, a young woman, faces the likelihood of having a diminished "value" on the open labour market: T 3 February 2016 at p 139. In this respect it was submitted that the plaintiff will have difficulty working in a "group environment", that she will have difficulty if suddenly asked to do a different job where she is likely to be exposed to circumstances that require her to expose her hand during the performance of work: T 139. It was further submitted that there were some minor difficulties in terms of what she can actually do with the left hand given the amputation. It was submitted that these factors are productive of financial loss: T 139.
Mr Baran further submitted that it is necessary to take into account that the plaintiff: "…has a long way to go until retirement so there are more issues with her trying to work in the workforce or suffering diminished earning capacity than say somebody who is about to retire and that must be taken into account." (T 141)
Reference was also made to the plaintiff's evidence in which she had sought employment, unsuccessfully, to the date of the hearing.
Whilst, as stated above, the claim for future economic loss was based on a weekly loss, I do not consider that there is evidence that enables that approach to be taken in this case. There was no particular evidence as to the likely level of earnings that the plaintiff would have received but for her injuries (both physical and psychological). There is no financial information whereby a calculation can be made in the circumstance of the present case on a weekly basis.
Accordingly, in those circumstances it is necessary in my view to assess the claim for future economic loss by way of a "buffer" against the prospect that the plaintiff's disabilities will result in a reduction of earnings in her chosen field of work.
In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Hodgson JA, with whom Mason P and McColl JA agreed, considered the awarding of damages for future economic loss by an award of a "buffer" in a case where the requirements under s 13 of the CLA apply.
His Honour at [33] stated that in his opinion it was open to assess future economic loss by way of a buffer citing the Court of Appeal decision in Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5]. He observed that in such cases the deduction for vicissitudes will be nil and the failure to state that as required by s 13(3) was immaterial.
In Leichhardt Municipal Council v Montgomery the plaintiff sought damages in respect of injuries suffered from a fall into a pit in a footpath. He was awarded a "buffer" for future economic loss in the sum of $160,000. The primary judge in that case had indicated that the plaintiff's most likely future circumstances, but for the injury, namely an ability to perform physical duties as well as duties as an estimator, made his services more valuable to another employer. The buffer award was based on a finding that his future with his then current employer was uncertain, but that he would have difficulty finding alternative work and would probably experience time out of work. Having regard to his then current earnings of $1,000.00 per week, the award of $160,000.00 was considered not to be manifestly excessive.
In State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536, the principles that apply at common law in the assessment of loss of earning capacity in the award of damages on the basis of a "buffer" were examined. It was there stated that damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of general damages, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much "at large". They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them: Paff v Speed [1961] HCA 14; 105 CLR 549 at 559 per Fullagar J.
In State of New South Wales v Moss, supra, the Court of Appeal also observed that compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss, citing the High Court's decision in Graham v Baker [1961] HCA 48; 106 CLR 340 at 347.
The court in Moss observed that calculating the damage to a capacity to carry on various careers involves an estimation of possibilities, not proof of probabilities: at [71]. The Court in that respect referred to the observations of Brennan and Dawson JJ in Malec v JC Hutton Pty Ltd, supra, at 639.
Additionally, the Court in Moss observed that the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum. The Court at [72] referred to authorities that support the proposition that where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat a claim for an award of damages.
Section 13 of the Civil Liability Act is in the following terms: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
In the assessment of quantification of damages for future economic loss I bring into account the following matters: 1. The fact of the plaintiff's age (born 1980), presently 36 years of age and the fact that she completed her secondary education and part of her tertiary education in Vietnam. In 2004 she commenced working in an accounting office in that country. 2. The plaintiff's subsequent history reveals an intention of her to further her studies and to take up residency in Australia. She applied for a Student Visa to come to Australia to study in about 2008 and had studied and obtained qualifications in this country which makes it likely that she would have, but for the accident, pursued a career in the accounting field. 3. As at the date of hearing the plaintiff had been unsuccessful in her attempts to obtain work. Her evidence made it clear that she intends to seek employment opportunities in fields such as bookkeeping or other accounting-related occupations. 4. The fact of her physical injury, including in particular the amputation injuries suffered by the plaintiff, together with the fact that she has had psychiatric sequelae to physical injury and ongoing self-consciousness by reason of the injuries suffered by her, the plaintiff's earning capacity has, on the whole of the evidence, been impaired and will remain so indefinitely. 5. The assumptions to be made as to the plaintiff's future earning capacity but for the accident is, in my assessment, that the plaintiff would have pursued a career in the field of accountancy. The pursuit of her studies in Australia as what might be termed a mature-age student, means that the plaintiff would have entered the accountancy field somewhat later in life than many, if not most, post-graduate students. The likelihood, in my assessment, is that the plaintiff would have pursued, but for her injuries, an occupation in an employed capacity, or on other contract basis. 6. By reason of her injuries, and impairment resulting from her injuries, the plaintiff is most likely to be on an employed basis or other contract basis, but she will be limited in her choice of work within the accounting field. This is partly due to her discomfort and self-consciousness of working in a group environment due to the disfigurement and associated problems with her amputee injuries. This will limit the fields of work open to her largely to a "back room" work environment rather than in face-to-face or a group environment. 7. The likelihood is that the plaintiff will have periods of time when she is out of work during which she is seeking new or alternative employment in the accountancy field. By reason of her impaired earning capacity resulting from her self-consciousness and reluctance to work in the presence of others, the periods in which she is likely to be searching for new employment periods will be longer than would have been the position if she was injury/disability free. 8. In relation to the assumptions to be made as to the plaintiff's future earning capacity, given the plaintiff's focus upon improving her tertiary education qualifications, exhibiting a well-motivated personality, it is likely that had she not been injured she would have continued to work to the age of 65 years. In her post-injury impaired state, the longevity of the plaintiff's career in accountancy may be regarded as somewhat reduced, say by 10% to 15%.
In assessing the quantum of a buffer for the plaintiff's impaired future earning capacity, I consider that an appropriate amount of damages is the sum of $125,000.00.

[28]

Non-Economic Loss

Pursuant to s 16 of the Civil Liability Act, no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s 16(1).
The maximum amount of damages that may be awarded for non-economic loss is $594,000.00 (Civil Liability (Non-economic Loss) Amendment Order 2015). The maximum amount is only to be awarded in a most extreme case: s 16(2).
I have earlier set out the evidence and concerning what was a complex left-hand mutilation injury resulting in an amputation of the ring finger with severe nerve damage. The index and middle fingers underwent severe trauma and nerve damage but without requiring amputation. The assessment of non-economic loss accordingly requires due consideration as to the nature and severity of the injuries sustained, the pain and nerve damage related thereto, as well as to the extensive psychological sequelae which has given rise to ongoing and indefinite feelings of embarrassment and a reluctance to be placed in the position if she is required to publicly display the disfigurement that has resulted.
The combination of the shock, pain, disability and impairment to the plaintiff, a young woman, resulting from the injuries sustained has continued for over four years and, on the evidence, will continue indefinitely to have, ongoing impact on her at a time when she was on the threshold of pursuing a professional career. Whilst the plaintiff, on the findings made, has an ability to pursue accounting work of particular types and in particular circumstances, there is a degree of psychological response given the diminution in her enjoyment of her employment life and personal life.
In Dell v Dalton (1991) 23 NSWLR 528, Handley JA (with whom Kirby P and Priestley JA agreed) said at 533 that an assessment of non-economic loss involves "questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common-sense and judgment".
The plaintiff was in my view an honest witness, who frankly and with what appeared to be an element of shyness or reserve, related the accident and subsequent disabilities without exaggeration or embellishment. I accept her evidence.
I am satisfied on the basis of the medical and her own evidence that the plaintiff continues to exhibit residual psychological symptoms resulting from the injury and is described in the report of Drs Lewin and Bertucen as being "socially avoidant and vulnerable". This has manifested in the avoidance of triggers, thoughts and conversations about her injury, in particular the avoidance of engaging in conversations with others who may ask her questions about her injury and her injured hand. I also accept on the basis of the report of Dr Nguyen that the plaintiff has candidly conceded to him that these symptoms have improved with outpatient psychiatric treatment. There remain, however, ongoing symptoms to which I have referred consistent with PTSD, which on the evidence of Drs Lewin and Bertucen is indefinite in nature as at the time of their examination of her.
Upon consideration of the evidence I have concluded that non-economic loss damages should be awarded to the plaintiff on the basis of its severity being 32% of a most extreme case which will result in an award for non-economic loss of $ 178,000.00.

[29]

Future Medical Expenditure

Drs Rea and McKessar, in their conclave Joint Report, expressed their opinion as to the plaintiff's "ongoing care": Joint Tender Bundle, p 3. In respect of Question 7, "What are the plaintiff's reasonable ongoing care needs?" they answered: "… She does require reasonable psychiatric and psychological overview."
Dr Rea added: "The patient needs assistance in managing her anxiety and depression as a result of the injury [to] her left hand."
In the Joint Report of Doctors Lewin and Bertucen, both stated that they agreed there was evidence of PTSD. They had no information after December 2014 and stated their response to Question 4 (which related to whether the plaintiff required any psychiatric treatment in the future), was speculative. As noted, they both agreed it was appropriate for both psychological and psychiatric to continue, this would include: 1. Fortnightly outpatient psychological treatment based on the model of exposure adopted by Dr Nguyen involving 25 fortnightly outpatient psychological treatment sessions at a cost of $235 per session. 2. Psychiatric treatment was also recommended. Six treatment sessions were required for the purposes of progress and monitoring of medication. Each session was expected to cost $350. 3. Allowance for antidepressant medication costing $60 per month was indicated for a 12‑month period.
In the plaintiff's Supplementary Statement she said she continued to see her psychiatrist, Dr Nguyen, who she said was "helpful" (at [14]). She said she sees Dr Nguyen once every three months. Each visit costs her $150.00. Dr Nguyen, she said, prescribes Avanza (15mg) once per day. One box of Avanza costs the plaintiff $8.00 each month (at [15]).
I have determined that on the whole of the medical evidence, future expenditure items as detailed below should be allowed upon the basis that a need for ongoing treatment and medication exists for the next five years. Calculations below have been made on that basis. Although the plaintiff's physical disabilities are permanent, her psychiatric "injury" is likely to reduce to a point where further treatment after the next five years will cease or reduce to a level that makes estimation a speculative one.
The cost of future psychiatric care calculated over five years is as follows: $150.00 per visit x 4 visits per year = $600.00 per year/52 weeks = $11.54 per week x 5% multiplier (231.5) = $2,671.00.

Vo v Tran

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