Williams v Metcash Trading Limited

District Court of NSW|2016-11-11

Solicitors: Law Partners Compensation Lawyers (Plaintiff) Vardanega Roberts (Defendant) File Number(s): 2013/00331913

Introduction

These proceedings relate to a claim by the plaintiff in negligence concerning workplace injuries which allegedly occurred to him on 30 May 2012 and 1 June 2012. At the time, the plaintiff was employed by JW Workforce Solutions Pty Ltd trading as Tru Blue Recruitment Australia, a labour hire company, which provided the services of the plaintiff as a worker to the defendant to work as a casual picker/packer at the defendant's product distribution centre at 71 Huntingwood Drive, Eastern Creek in Sydney in New South Wales. The plaintiff had commenced work at the defendant's premises at Eastern Creek in late February 2012 and continued to work at those premises until 1 June 2012, returning to work for part of 13 June 2012.
The premises at Eastern Creek consisted of an extremely large covered warehouse and distribution centre where goods were received from manufacturers or other wholesale storage areas by truck and then selected by pickers/packers like the plaintiff to be placed on a pallet which was then wrapped in plastic and transported to various retail outlets for sales to the public. The defendant was one of the entities which occupied the site and supplied retail outlets which included IGA grocery stores. Pickers/packers wore headsets which directed them to pick slots where goods were stored on pallets either on the ground or on shelves. They drove a vehicle called an electric pallet jack which had one or two pallets attached to it which were loaded with goods by the picker/packer as directed through the headsets before being wrapped for transport to the relevant retail outlet.

Amended Statement of Claim

The plaintiff's Amended Statement of Claim was filed on 8 May 2015.
Under the Amended Statement of Claim, the plaintiff: 1. Sued the defendant for damages pursuant to the Civil Liability Act 2002 (NSW) ("CLA"); 2. Claimed that the plaintiff was employed by "JW Workforce Solutions" as a picker and packer, making up orders for the defendant at its warehouse; 3. Pleaded that the defendant owed a duty of care to the plaintiff to ensure that the warehouse and the system of work devised and implemented by it was safe and free from foreseeable risks of harm, which were not insignificant (paragraph 3b); 4. Pleaded that when making up orders for the defendant the plaintiff was under the defendant's exclusive direction, while remaining an employee for JW Workforce Solutions; 5. Claimed that on or about 1 June 2012, the defendant directed the plaintiff to pick and pack orders at a fast rate, regardless of the items being picked and packed, which encouraged unsafe lifting and work practices and inadvertence (paragraph 5); 6. Pleaded that the plaintiff was required to pack between eight and ten pallets of goods per day and to handle a large number of orders per pack day; 7. Claimed that the contents of each pallet and the weight of each "parcel" was determined by the order. In particular, it was claimed that a number of the items which the plaintiff had to lift up and place on the pallet included heavy cans of dog food and soft drink which weighed between 14.4kg and 16kg each (paragraph 5B); 8. Claimed that if the plaintiff fell below the approved pick rate he was to be counselled by the defendant's employees and would not have been offered further work at the defendant's premises. It is asserted that as a result, the pick rate encouraged fast work and inadvertence and unsafe lifting and carrying practices and that this caused the plaintiff to suffer injury (paragraph 6).
The particulars of negligence are set out by the plaintiff in paragraph 7 of the Amended Statement of Claim as follows: "7. The injury referred to in 6 above was caused by the negligence of the defendant. PARTICULARS OF NEGLIGENCE a. Failure to provide a safe system of picking and packing. b. Failure to provide proper procedures for the identification of an inappropriate picking and packing system. c. Failure to provide a means of identifying an unsafe system of picking and packing. d. Failure to provide training and instruction [to] the Plaintiff adequately when he was required to pick and pack at a fast rate. e. Failure to properly supervise the plaintiff. f. Implemented a pick and pack rate which failed to account for the weight of the items to be picked and packed; g. Imposed unreasonable time frames within which to pick and pack orders and which encouraged inadvertence and unsafe lifting practices; h. Failed to suspend the pick and pack rate at times when equipment, such as the scanner, was not working, or otherwise did not work for certain periods of trade; i. Required the plaintiff to 'catch up' on pick and pack orders when the scanner was inoperative for a period of time during the early hours of the plaintiff's shift; j. Failed to encourage reporting of unsafe work practices and more particularly problems complying with the pick and pack rate; k. Failed to comply with and encourage compliance with the Code of Practice for Hazardous Manual Tasks 2011; I. Failed to devise, institute and maintain an Occupational Health and Safety Management System; m. Failed to undertake OHS Risk Management Assessments; n. Failed to store heavy items, such as dog food, in an area where packs can be accessed between the knees and the shoulders; o. Failed to review the height of the first level of shelving of heavy products and to raise it to reduce the risk of injury from sustained and repetitive bending; p. Failed to provide turn tables on site so that items can be picked from the front end of the pick space as the pallet is picked down; q. Failed to rotate pallets, using a forklift, so that items can be picked from the front of the pick space; r. Failed to ensure that all equipment was in good working order so that picking and packing could proceed without interruption; s. Failed to provide any or any adequate supervision to ensure that labour hire workers only lifted one carton or package at a time; t. Failed to provide any or any adequate training on safe manual handling techniques; u. Breaches of the Workplace Health and Safety Act 2011 and the Workplace Health and Safety Regulation 2011."
In his Amended Statement of Particulars filed 17 July 2015, the plaintiff particularised the injuries received as injuries to the "lumbar spine", "radiculopathy" and "psychological sequelae".

Defence

The defendant was granted leave to rely on a Defence to the Amended Statement of Claim which had already been filed with the Court on 1 November 2016.
In its Defence, the defendant: 1. Disputes liability; 2. Claims that the plaintiff had a history of back injury which he had deliberately not disclosed at a medical assessment on 21 February 2012 for the purposes of the defendant determining whether he was suitable to be used in the job as picker/packer; 3. Pleads that the content and scope of the duty of care that the defendant owed to the plaintiff was determined and circumscribed by its reliance upon the plaintiff's disclosures in the course of his medical exam. It is further asserted that the defendant would not have permitted the plaintiff to perform the duties of a picker and packer if it had been made aware of the plaintiff's true medical history; 4. Claims that the plaintiff underwent a thorough and detailed induction and training process which included training in safe manual lifting practices. It is claimed that the plaintiff was taught not to lift multiple boxes of product at one time. It is also asserted that the plaintiff was provided with a reasonable period of time for performing all aspects of his picking and packing duties; 5. Claims that the heaviest items the plaintiff was required to lift as part of his duties as a picker and packer included dog food cans and soft drink bottles which did not exceed 16.4kg; 6. Claims that the pick rate required was reasonable and was based on the work speed of an average person allowing time for correct manual handling techniques, toilet breaks and fatigue (paragraph 10); 7. Claims that if the plaintiff was injured the risk was an obvious risk and the plaintiff was guilty of contributory negligence (paragraphs 12 and 12A); 8. Disputes causation; 9. Pleads a defence under Section 151Z of the Workers Compensation Act 1987 (NSW) ("WCA") in relation to a breach by the plaintiff's employer of a non-delegable duty of care to him as their employee.

Oral evidence of the plaintiff

The plaintiff gave evidence that he was born in October 1985 and was thus aged 26 at the time of the alleged injury in June 2012. He was educated to the end of Year 10 at school.
The plaintiff's background employment history included as a stock replenisher for Woolworths, a kitchen hand for McDonalds, two years of a mechanical engineering apprenticeship and also a number of years working for grocery wholesalers as a picker/packer. The plaintiff said he left his apprenticeship because he was struggling financially. He said he worked for a company called Ceva Logistics placing products on pallets for allocation to retail stores on smaller pallets. Essentially this was a similar job to the job he later undertook for the defendant.
The plaintiff gave evidence that in 2009 he developed soreness in his lower back following an incident where he was placing boxes in a cage which rolled away: T 87.20. He said he felt pain in his lower back and in the back of his left leg: T 87.31-.40.
The plaintiff said that he sought medical attention in 2009 in relation to his back and x-rays and a CT scan were undertaken. He had about two months off work and then resumed his picking/packing duties with Ceva Logistics: T 88.2. He said he worked for them for about two to two and a half years: T 88.11. Mr Williams said he left that company when there was an allegation of someone stealing stock and he felt that he had not been treated correctly during the investigation.
The plaintiff gave evidence of also having a history of depression: T 88.24. This arose from work issues and losing his driver's licence for road racing. He said he obtained medical advice in relation to his depression from his general practitioner, Dr Rhee, who referred him to a psychologist, Mr Gunn, who he saw on several occasions. He stopped seeing Mr Gunn as he did not think it was assisting him. He did take the medication Pristiq for his depression which was prescribed for him by Dr Rhee. The plaintiff said he was free from depression when he started work for the defendant.
The plaintiff gave evidence that he had an injury to his right hand in about 2010 following an altercation which healed fully.
The plaintiff stated that he then obtained employment as a picker working in a freezer dealing with cold products where he lifted weights of up to 20kg without difficulty: T 90.21. This was a seasonal job which he lost when the company for which he was working lost its contract.
The plaintiff then gave evidence that he was unemployed for a period before registering with the labour hire company J W Workforce Solutions trading as Tru Blue ("Tru Blue") in January 2012: T 90.35.
The plaintiff said that eventually he was called up by an officer of Tru Blue, Matt, who took him and about eight to ten others to the Eastern Creek distribution warehouse occupied by the defendant. He and the other potential employees were taken around the warehouse and shown how the defendant's picking/packing system worked: T 91.26.
An officer called Matt from Tru Blue indicated that if the plaintiff wanted to work for Tru Blue a medical was required which he had to pay for. This medical was undertaken by a general practitioner at Blacktown who conducted a physical examination, a hearing test and testing for the use of drugs. The plaintiff confirmed that he was asked questions about his previous injuries and did not reveal his prior injuries or his prior workers compensation claim because he wanted a job and he believed that if he had told the truth he would not be given a job: T 93.25-.37. He said that at the time he was in "perfect" condition. He said his last back pain had been probably two years previously: T 93.44.
The plaintiff was soon after told by Matt from Tru Blue that he had been successful in obtaining the job and he needed to attend the defendant's site for an induction. He attended the site and Matt took the employees around and showed them the exits, the goods to be packed, the headset system and the pallet jack machines. He said Stephen Miller from Metcash was also present who he believed to be a manager: T 94.14. The plaintiff gave evidence that he did not recall Mr Miller talking to him. The plaintiff was given a start date.
The plaintiff said he arrived at Metcash for his first day (which other evidence showed to be 21 February 2012) between 5am and 6am, clocked on, obtained his pallet jack and headset and was shown how to use the headset. He was given a "buddy" called Shannon to assist him with his first day at work: T 94.43. This person was Mr Shannon De Leon who also gave evidence in the proceedings.
The plaintiff gave evidence that on the first day he went with the buddy who was picking from the shelves and in the second half of the day the buddy watched him picking: T 95.11.
The plaintiff gave evidence that he noted the buddy worker taking goods from the second level of shelving, not using a supplied product hook to drag goods towards him which were at the back of the layer of goods, climbing on boxes to get to the second level of the racking above and crawling into the lower shelf to get stock. He said the buddy told him that if more than one box was picked at a time that this increased the pick rate: T 95.34. The plaintiff gave evidence in relation to how the defendant's system worked and the various steps which he undertook in completing an order: T 95.42-97.21.
The plaintiff then gave evidence that he noticed that workers picked very quickly as this appeared to him to be the only way to stay within the pick rate. He also noticed that workers picked multiple boxes of goods at the one time. He also undertook the practice of lifting up multiple boxes at the one time. He gave evidence that no-one ever spoke to him against doing that and as far as he could observe it was a common practice in order to achieve the pick rate required by the defendant: T 97.36.
The plaintiff described the setting out of the pallets in the aisles at the centre and the limited clearance between the pallet jack vehicle and the shelving. He said it was difficult to turn around with products from the shelf to place them on the pallet jack. The plaintiff also gave evidence that the shelves were various heights including 1.2 metres, 1.4 metres and 1.8 metres: T 98.15. Where he had to pick goods from a bay with the height of 1.2 metres he said it was frequently necessary for him to get down on his hands and knees and crawl onto the pallet if the product available was at the back. If it was at the front it was necessary for him to crouch down and place his arms in front of him to lift up the product. The plaintiff also gave important evidence that some of the products were stuck together and it was necessary on occasions to crawl onto the pallet where the height of the bay was limited and shake the products free and then wiggle backwards with the product, turn around and then stand and place the product onto the pallet jack: T 98.35-99.19.
The plaintiff gave evidence that the defendant supplied him with a case hook tool for the purposes of his work in reaching boxes at the back of the pallet but he did not use it as in his experience the use of the hook damaged stock including boxes and containers of bottles. He said the only way to obtain product at the back of the pallet was manoeuvring yourself to grab it. He said he also did not observe other workers using the case hook in their duties: T 99.32.
The plaintiff gave evidence that he thought the defendant's system was "ridiculous" and he informed Steve Miller of the defendant at what he described as a "toolbox meeting" who said he would look into it. He also told a Human Resources Manager of the defendant of the problems as he perceived it with the system pick rate and that bending under the rack was not safe: T 100.24. He said that he understood that the Human Resources Manager spoke to the General Manager and he saw both of them in the lunchroom and they both looked at him.
The plaintiff said that a worker could determine at any time whether he or she had maintained the defendant's pick rate by ascertaining it when they clocked off or calling for it on their headset: T 101.3. He said that on occasions Steve Miller or Matt from Tru Blue came up to him and told him to pick up the pace: T 101.22. This occurred in the first couple of weeks of him working. The plaintiff said he also received texts from Matt from Tru Blue that it was necessary for him to pick up the pace if he wanted a permanent job: T 101.38.
The plaintiff gave evidence that he rang WorkCover and complained about the defendant's system: T 102.8. As far as he was aware nothing happened following his call to WorkCover.
The plaintiff gave evidence that in the period February to April 2012 his back became sorer and sorer and began to ache until he experienced a sharp pain: T 102.33. He said that he was picking a box of Pedigree dog food when he felt a sharp pain in his back: T 103.36. He finished the rest of the order. This was on 30 May 2012. He felt pain in his lower back, in his left buttock and into the back of his leg. He said the bay he was emerging from at the time was 1.4 metres in height: T 103.49. He said he went to Steve Miller, of the defendant, complaining of a sore back and was offered a Panadol which he did not take: T 104.29.
The plaintiff gave evidence that he struggled through his shift on Thursday 31 May 2012. On Friday 1 June 2012 the plaintiff stated that there was a further incident but the pain was much more intense. He said he was bending under a rack to obtain 1.2kg cans of Chum dog food which had plastic wrapping around it. He said he crawled under the rack to obtain cases at the back of the pallet and was pulling out two cases at a time working hard to maintain his pick rate. The plaintiff said that he was lifting the fifth and sixth boxes of Chum dog food at the time and wriggling out with the boxes when he felt a sharp pain in his back which went down his left buttock and the back of his left leg and then down the front of his left leg to his foot: T 102.41-.48; T 105.10-106.16. He sat on the pallet for a while. He said he then went up to the control desk but no supervisor was present. He clocked off and informed Matt from Tru Blue what had happened. He left work, attended the company doctor at Wetherill Park, Dr Foo. He said he went to Dr Foo on the same day. At the time he said he had intense sharp pain in his back and when he was examined by Dr Foo he could not twist or bend. He said Dr Foo said he had a muscle strain and he was referred to a physiotherapist who he went to see about four or five times: T 107.9.
The plaintiff gave evidence that he attempted to return to work on 13 June 2012: T 107.44. He said he was feeling better at the time and had been told by Dr Foo that he was fit for full duties. He said that in the course of his work doing heavy lifting after about two to three hours he felt severe pain in the same areas lifting products from the ground and ceased work after informing Tru Blue of the pain: T 108.4. He never returned to working at the defendant's premises.
The plaintiff was taken to various documents which Mr Roberts of the defendant said were provided to new inductees at the premises. The plaintiff said: 1. He had never seen the Engineered Standards document at Exhibit 3, page 179; 2. He had never seen the Huntingwood site induction document at Exhibit 3, page 182; 3. He had never seen the safety induction training document at Exhibit 3, page 199; 4. He confirmed that it was his signature on the employee's site induction guidelines at Exhibit 3, page 206 but he said he had never seen the document at Exhibit 3, page 207. He said he saw the employee's site induction guidelines document and signed it when the document was distributed by Matt from Tru Blue to all the new inductees in an office who signed it and gave it back to him: T 109.20; 5. He had never seen the training progress record at Exhibit 3, page 208 and said it was not his signature on the document; 6. He had never seen the IGA continuous development training document at Exhibit 3, page 209 and it was not his signature on the document; 7. He had never seen the dry grocery assembler voice pick sequence document at Exhibit 3, page 210; 8. Later the plaintiff agreed that he had signed a document entitled "Site Induction Form" dated 21 February 2012. This document included the following statement which was ticked: "I have received instruction and or information on safe manual handling and will use correct manual handling techniques at all times. This will include taking required rest breaks when required and stretching if undertaking repetitive lifting": Exhibit 13.
The plaintiff's evidence should be contrasted with that of Mr Roberts of the defendant, which is discussed below, who said that the Engineered Standards document, the Huntingwood site induction document, the safety induction training document and the employee's site induction guidelines were all provided to new inductees during the initial training.
The plaintiff gave evidence that in 2012 his objective was to work at Metcash for a period of time and then go back to TAFE to complete the third and fourth years of his mechanic apprenticeship at the beginning of 2013: T 110.10. He said he had not done this since because he had hurt his back.
The plaintiff gave evidence that he sought further medical treatment from his general practitioner, Dr Rhee, who referred him for scans: T 111.4. He also obtained treatment from a physiotherapist and was prescribed various painkillers. He said he did not take the prescription pain drugs because he saw those as a "bandaid job" only: T 111.26.
The plaintiff gave evidence of his current living circumstances and the activities he could undertake both before and after the June 2012 incident. He said that at the time of the incident he was living with his parents. He lived on the upper level of the house and was responsible for keeping it clean and tidy. He said he used to mow the lawns, undertake vacuuming and look after his dog but could not continue doing so because of the pain in his back. He said he could not do much at all except lie down and occasionally prepare meals: T 111.42.
He said he could dress and maintain himself, although he needed some help in the mornings. He said his mother provided him with this assistance initially for a period of about one to one and a half hours per day: T 112.44.
The plaintiff said that prior to the accident he undertook the lawns and edges although the area to be mowed was limited. He said he spent about half an hour on average per week undertaking this task, although more work was required in summer compared to winter. After his accident he said he did not undertake any lawnmowing as he could not do it: T 113.21.
The plaintiff gave evidence that after the accident he had physiotherapy for two to three months and then stopped it as it was in his opinion aggravating his condition. At this time he was suffering from the same pain in his back, left buttock and left leg. He said walking around for lengthy periods and standing up took its toll on him: T 113.35.
The plaintiff gave evidence that he was still able to drive at this time. He had a manual car and on one occasion his left leg went numb and his foot felt as if it was "on fire" and he hit the gutter with his car. This was in the first year after the accident. He also gave evidence that his left leg had given way on a number of occasions causing him to injure himself. These injuries included tearing his rotor cuff in his shoulder and breaking a bone in his foot when he tried to mow the lawns and undertake some handyman work. Thereafter he stopped those activities.
The plaintiff stated that he attended Dr New an orthopaedic and spinal surgeon who eventually told him that he could not assist him further: T 115.21. By 2013 he believed his condition was getting worse and he was in constant pain with more falls: T 115.31.
In 2013 the plaintiff met his current partner and in 2015 they purchased a house together with the financial assistance of his partner's parents. He said that between 2013 and 2015 he felt his condition was getting progressively worse with his left leg being numb and his foot feeling as if it was "on fire". Hydrotherapy was attempted by the plaintiff at the recommendation of Dr Rhee but the plaintiff formed the view that this aggravated his condition. The plaintiff said he had excruciating pain if he sat or stood for any lengthy period in the one place. He said he could bend over but not by himself. He could not twist his back and walking for any period aggravated the pain. He said he could not run. The plaintiff gave evidence that his condition was unchanged for the last year and a half: T 117.22. He could not get his pain to settle: T 117.31.
The plaintiff gave evidence that he changed his general practitioners a number of times as his condition was not improving. He was referred to Professor Boesal who attempted nerve root blocks but once the anaesthetic wore off he was in serious pain. He said he took Lyrica twice per day as prescribed by his general practitioner or Professor Boesal. Other than that he had no treatment. He saw Professor Boesal every three months and his general practitioner every month: T 119.31.
Currently the plaintiff said he did very little around the house: T 120.2. All of the tasks were completed by his partner. He gave evidence that he tried to help by doing minor tasks such as emptying the top drawer of the dishwasher and doing some limited cooking. Otherwise the plaintiff said all jobs around the house were undertaken by his partner who worked fulltime. This made the plaintiff feel "sick" as he could not look after things himself: T 120.40. He gave evidence that if he was awarded money he would get someone to do tasks for him rather than get his partner to do it: T 120.46.
Prior to the accident the plaintiff gave evidence that he enjoyed working on cars, riding his motor cycle and meeting up with his mates. However he said he cannot work on cars now, cannot ride his motor cycle and only met his mates if they came over to his house. He said he could not drive for a very long distance. He said he now had back pain all the time which varied in intensity and was worse in colder weather. He did not believe his condition was improving: T 122.25.
As stated above, the plaintiff gave evidence that he had experienced depression prior to the accident and had taken medication. However, he said he had not taken medication for depression whilst working at Metcash. He said his depression prior to working at the defendant had stopped after about a year: T 122.36. He said that now he was depressed all the time, found it hard to wake up and did not want to face things. He said that the depression shattered him emotionally: T 122.43. He said he had been receiving help from a psychologist, Ms Parish.
The plaintiff gave evidence that his sleep had been affected since the accident. He said he had broken sleep and often woke up with concerns of the future. Also he said his pain often broke his sleep after he had been sleeping for one to two hours.
The plaintiff gave evidence that he was not working at the time of the hearing and was not looking for work: T 123.37. He said his rehabilitation had been stopped and he had been certified totally unfit for work. He said he had stopped seeing his psychologist as he did not think it was helping him.
The plaintiff was subjected to a lengthy cross-examination which continued over several days with some other witnesses being interposed. The plaintiff also sought, and was granted, adjournments on occasions due to apparent pain from his injury which posed problems for him giving his oral evidence.
The plaintiff gave evidence that he was so overwhelmed with pain that he had difficulty sometimes remembering things: T 128.41. He also conceded that his memory about many things may be unreliable because of the problems which he had. This was a significant concession by the plaintiff and raises real questions about the reliability of the plaintiff's recollection of events prior to his accident, including his prior medical history. He agreed, for example, with the proposition that it was possible that his memory of things that occurred up to twelve years ago was not good and may be unreliable: T 128.38-.49.
The plaintiff was asked questions by counsel for the defendant in relation to his medical history up to the time of the plaintiff's commencement of work at the defendant's warehouse in February 2012.
In particular, counsel for the defendant put a number of propositions to the plaintiff that he had experienced back pain of varying severity and other medical problems including depression in the period between 2004 and the beginning of 2012: 1. It was put to the plaintiff that he was involved in a motor vehicle accident in December 2004 and experienced pain in the lower back and was unable to cope at work. It was suggested that the plaintiff saw Dr Peter Clarke who referred him for imaging. The plaintiff said he did not recall having the accident although he was willing to concede the possibility that it may have occurred: see Exhibit 3, page 360 and T 128.1-.36; 2. The plaintiff was asked questions about an injury to his abdomen when he was lifting 43kg boxes in December 2005. The plaintiff said that he vaguely remembered the injury and thought he was working at Zodiac which was a firm selling pool cleaners at the time. The plaintiff said he could not recall seeing a Dr Shinwari about the accident or lodging or obtaining certificates for the purposes of obtaining workers compensation benefits in connection with the injury. Exhibit 3, pages 361-362 and T 129.44-130.18. The plaintiff also could not recall making a workers compensation claim in relation to the abdominal injury: T 132.28, see also Exhibit 3, page 367; 3. It was put to the plaintiff that he saw a Dr Chang in May 2008 describing himself as "paranoid" and saying he had stress from work and had used cannabis and amphetamines. The plaintiff said he did not recall seeing a Dr Chang and denied relaying these matters to him. In particular, he said he did not use cannabis or amphetamines in May 2008. See Exhibit 3, page 394 and T 135.17-136.16; 4. The plaintiff agreed that in May 2008 he accepted employment with Ceva Logistics as a storeperson: T 137.16 and Exhibit 3, page 398. The plaintiff said that shortly before commencing with Ceva Logistics in May 2008 he lost his driver's licence for three years because he was engaged in drag racing: T 138.6. The plaintiff also agreed that he was convicted for driving to work unlicensed. He accepted that he was willing to ignore the prohibition on driving to continue driving his vehicle to work: T 138.18-.27. The plaintiff said the work at Ceva Logistics was picking and packing and he accepted that he would have received some training in safe manual lifting at Ceva Logistics: T 138.43-.48. The plaintiff was cross-examined about safe lifting practices and agreed that he understood the safe way to lift a heavy box whilst he was working at Ceva Logistics in 2008: T 139.24-140.15 and T 140.41-141.1; 5. The plaintiff was cross-examined extensively in relation to his medical history between late 2008 and January 2012. The plaintiff conceded that in that period his back was aching: T 163.35. It was put to him that he suffered from low back pain continuously for a period of about nine or ten months but the plaintiff said he could not say how long it went for: T 163.43. It was put to the plaintiff that he complained of chronic back pain, his legs giving way and depression in circumstances where he had normal x-rays, CT scans and an MRI. The plaintiff conceded that all of the investigations suggested that his back was normal: T 163.31. As stated above, the cross-examination on the plaintiff's medical history in this period was extensive. The plaintiff showed a distinct lack of recollection in relation to the detail of his medical history in this period whilst accepting that he had an aching back and at times was suffering from depression. The poor memory of the plaintiff in relation to this period is difficult to reconcile with his much more detailed memory of what occurred in his time working at the defendant's warehouse. An example is that the plaintiff could not recall seeing a Dr Holman, orthopaedic surgeon, in April 2009 in relation to his back: T 164.26-.39; 6. The plaintiff conceded that he was suffering from constant low back pain in about April 2009: T 164.45. The plaintiff said the pain in his back was an "aching pain": T 142.17. The plaintiff agreed that he had back pain for the five months before February 2009 and he went off work because of the back pain: T 142.36-.40, see also Exhibit 3, pages 404-405. The plaintiff said that he could not recall being placed on lifting limits because of his low back injury in February 2009: T 144.35; Exhibit 3, pages 408, 411 and 416; 7. The plaintiff conceded that it was his signature on the return to work plan which appears at Exhibit 3, page 417; T 145.12. In the light of this the plaintiff conceded that his comments in his statement in relation to a report of Dr Maxwell dated 2 October 2014 where he claimed that his back strain at Ceva Logistics took just over a month to resolve, were "quite wrong": T 147.22. In the light of that the plaintiff seemed to concede that his evidence in chief, that he was fine after a couple of months and he was back at work, was incorrect: T 147.41-.49; 8. It was put to the plaintiff that he first injured his back in August 2008, had time off work, went back to work in June 2009 and then reinjured his low back. The plaintiff said he could not remember that history of injury and work: T 166.47; 9. It was put to the plaintiff that he had a burning or prickling or tingling sensation in his left leg in November 2009 as told to a Dr Woolnough but the plaintiff said he could not remember this: T 173.40-.47; 10. The plaintiff did not recall lodging a second workers compensation claim on 3 November 2009 and that he went off work again in November 2009: T 174.29; 11. It was put to the plaintiff that he complained of having sensations of pins and needles in his leg in November and December 2009 and he said he did not recall it: T 175.48; 12. The plaintiff conceded that he could have been depressed in January 2010 and could have indicated that he told Dr Rhee his general practitioner on 15 May 2010 that he had been feeling depressed for at least six to eight months: T 183.18-.30; 13. The plaintiff said he did not recall telling psychologist Mr Gunn at the end of 2009 that his legs would give out when he walked due to his back pain: T 185.7. The plaintiff said he had a muscle strain in his back at this time but he did not believe he had anything mechanically wrong with him: T 185.18; 14. The plaintiff agreed that at some stage he took an overdose of prescription medicine but did not recall that it was in November 2009: T 185.42; 15. The plaintiff denied that he could recall telling his general practitioner Dr Rhee on 22 January 2010 that he often felt his lower back locking up when getting up: T 186.35. The plaintiff denied that he told Dr Rhee that he had radiation of pain to the left leg onto the foot in January 2010: T 186.48; 16. The plaintiff said he did not recall requesting Centrelink certificates from Dr Rhee to obtain social security benefits at about this time where his medical conditions were listed which included back pain: T 188.48, T 189.13, T 190.1; 17. The plaintiff denied that in 2011 he continued to experience low back pain from time to time and said his back was good for two years prior to working at Metcash: T 196.15-.20. He also would not concede that he was depressed for a period of at least two years before he worked at Metcash in 2012: T 196.44. The plaintiff denied that he had been suffering from ongoing low back pain right up until 23 January 2012 and that he obtained a Centrelink certificate from Dr Rhee in relation to that: T 197.24-.43.
The plaintiff was then cross-examined extensively in relation to the period when he was given training in 2012 at the defendant's warehouse up to the time of his injury. Significant evidence given by the plaintiff was as follows: 1. The plaintiff conceded that Matt from Tru Blue, his employer, gave instructions and information to him in relation to safe manual handling at his induction on 21 February 2012: T 235.21-.33, cf T 234.1-.11. 2. The plaintiff gave evidence in cross-examination that he was told when he started with the defendant that there was a performance standard known as an Engineered Standard with percentage increments although the plaintiff said that a picker had to reach 90% by the third week and not in the times which had been indicated by Mr Roberts of the defendant in his evidence (Mr Roberts gave his evidence before the plaintiff). The plaintiff asserted that Mr Miller from the defendant and Matt from Tru Blue said that the performance standard of 100% had to be reached within three weeks: T 238.34-239.21. 3. The plaintiff agreed that he spent a couple of days when he started work at Metcash with a man called Shannon (later established to be Shannon De Leon) who showed him how to do the job. However, the plaintiff gave evidence that Shannon climbed on racks and stood on boxes to get to the second shelf and also indicated how to get quicker times using the Engineered Standard by picking "double boxes". The plaintiff said that at the time when Shannon showed him how to do these things he (the plaintiff) knew they were not safe, particularly the climbing on racking or boxes. He also said that Shannon in the course of the work lifted boxes above the shoulder height when the boxes were placed on the pallet: T 241.3-.35. The plaintiff gave evidence that Shannon showed him how to use the case hook to pull boxes forward from the back of the pick slot but indicated that Shannon told him it takes up more time. The plaintiff expressly denied that Mr Miller from the defendant or Matt from Tru Blue or Shannon told him that he should only lift one box at a time. The plaintiff said that he had to work at the pick rate and was getting reprimanded for not keeping up to the standard. He said the way of achieving it was to lift more than one box at a time: T 243.6-.25. The evidence disclosed that in fact after working for Metcash for four weeks the plaintiff usually exceeded the picking standard: Exhibit 11; 4. The plaintiff denied that he was told by either Matt from Tru Blue or by Steven Miller from Metcash that he had to advance from 60% to 100% of the performance standard over six weeks. He gave evidence that he was told he had to achieve a 100% pick rate within three to four weeks: T 291.16-.39 cf T 502.41-503.8; 5. The plaintiff gave evidence that his pick rate was always around 60% to 80%: T 292.16. This should be contrasted with the pick rates disclosed for him in Exhibit 7 which were to a much higher percentage. See also the much higher pick rates in Exhibit 11; 6. The plaintiff gave evidence that when he was with his "buddy" Shannon De Leon he lifted multiple boxes while being watched by Shannon De Leon: T 292.27. The plaintiff said these were small boxes being multiple boxes of light items on the top shelves: T 293.18. The plaintiff gave evidence that was what Shannon was doing and that is what he did: T 293.18. The plaintiff said he had no understanding when he started work at Metcash and whilst he was working there not to lift more than one box at a time: T 293.31. He said he did not recall lifting multiple boxes of dog food while Shannon was buddied up and watching him: T 293.14; 7. The plaintiff conceded that before he started working at Metcash in 2012 he knew that it could be unsafe to lift heavy boxes of 13kg or more with his arms outstretched from his body. He also conceded that he knew it would be unsafe for him to move from one position to another by twisting his spine whilst carrying a box and that he should turn using his feet, holding the heavy object closer to his body: T 299.39-300.2. However, he denied that he went to a meeting before starting work at Metcash with Matt from Tru Blue and Mr Miller from Metcash in which they gave him training about how to safely handle boxes: T 300.7; 8. The plaintiff denied that he could make more space to turn around with boxes by moving the pallet jack forwards or backwards from the pick slot as this would block another bay for another picker and drop their pick rate: T 302.4. He also denied that the gap between the pallet jack and the pick bay provided sufficient room to be able to turn and change direction with his feet: T 302.33. This was particularly the case where he was picking from underneath the shelf on the ground level: T 302.43; 9. The plaintiff gave evidence that he was required to pick pallets in layers: T 302.47. He stated that there was no problem in picking boxes of dog food like Chum which were situated at the front of the pallet: T 306.19. In relation to the cases at the back of the pallet on the layer he denied that one could use a case hook to drag the boxes towards him in order to pick them because he asserted that the case hook broke open the plastic or carton. The plaintiff gave evidence that he had to physically pick up the box of dog food in order to remove it. This required him to bend under the racking to do so and lift it up, not drag it back towards him across the other boxes: T 306.21-.48; 10. The plaintiff gave evidence that supervisors moved around the warehouse checking on pickers from time to time but only about once per week they would walk up the aisles: T 307.23. He also gave evidence that he had never seen Matt from Tru Blue checking on the picking practises of the casual workers: T 307.29. The plaintiff gave evidence that he never saw Matt from Tru Blue checking on him in the four months he was at Metcash: T 307.47. The plaintiff denied that there were something like 16 supervisors working on every shift. He said that supervisors were not at the control desk all the time: T 311.45; 11. The plaintiff gave evidence that pickers were lifting up multiple boxes of dog food or soft drink routinely whilst he was working at the defendant's centre: T 312.42. The plaintiff also gave evidence that on occasions he had to continuously lift dog food or soft drink for between one and up to two hours: T 314.23-.48; 12. The plaintiff gave evidence that his injury built up over a three day period starting on 30 May 2012 and ending on 1 June 2012: T 315.7. He said it commenced with muscle aches and discomfort in his lower back: T 315.12 and .21. The plaintiff said that leading up to the injury his back became sorer and sorer for probably a couple of days prior to 30 May 2012: T 317.48-.11. The plaintiff gave evidence that whilst his back was getting sorer and sorer he could still stand up and could still bend over under the shelving: T 318.5 and .49; 13. The plaintiff then gave evidence that on 30 May 2012 he felt the first instance of sharp pain when he was picking up a 13kg box of Pedigree dog food. He gave evidence that he picked it from under the racking from the ground level shelf. He agreed that he had earlier said in his evidence that he could not recall whether he picked the box up from the ground or the second shelf (T 103.39) but said he now remembered it was from the ground level as he had time to think about it since his first evidence: T 319.49. He disagreed with the proposition that he was reconstructing his evidence and could not remember whether he picked the box up from the ground or from the second shelf: T 320.13 and .44. He said the first sharp pain was experienced when he was bending and twisting to the right to put the box on the pallet: T 320.48. The plaintiff said in response to the suggestion that he manoeuvred the box in a way that he knew was unsafe, that he had no other way to do it: T 321.13; 14. The plaintiff was then cross-examined about the incident on 1 June 2012. He said he was still in pain whilst he was picking on 1 June 2012: T 322.24. He confirmed that he had been in pain also on 31 May 2012 whilst working: T 323.30. The plaintiff gave evidence that he was prepared to continue working in a dangerous job on 1 June 2012 while he had pain in his back: T 323.48. The plaintiff gave evidence that he was lifting on 1 June 2012 in the only way he could having regard to the space which he had and the fact he was bending under shelving picking dog food from under racking: T 324.5-.28. He described bending or crawling under the racking to get to the cases of dog food: T105.24. The plaintiff said that he picked four boxes of dog food and then proceeded to commence lifting 10 boxes of Chum dog food. He said it was whilst lifting the fifth and sixth of those boxes that he hurt his back: T102.41; T104.48-105.49; T 325.18.
The plaintiff gave evidence that he was required to undertake unsafe lifting whilst working for the defendant. At T 141.7-.20 the plaintiff gave evidence as follows: "Q. Yet you say when you started working at Metcash you were constantly bending and twisting your spine and lifting more than 15 kilograms, in fact, lifting 30 and 40 kilograms, is that your evidence? A. That's right because you had to been [bend] under racking whereas Siever [Ceva] Logistics never had racking that you had to bend under. Q. You knew that you were going to be lifting in a way that was unsafe and you just did it anyway, is that what your evidence is, in 2012? A. How else was I supposed to do it? Q. You were supposed to do it by bending your knees and your ankles and bending down and taking boxes with your back straight, weren't you? A. How am I supposed to do that when I'm 6 foot tall and the racking was 1.4 high?".
The plaintiff answered many questions in the course of his cross-examination to the effect that he did not recall the matter put to him or he did not remember it. This included many events in the years 2008 to 2010 when he appeared to be complaining frequently to doctors of problems with his back and depression. It is difficult to understand how the plaintiff's recollection of this period could be as poor as was indicated by his answers. One possibility is that he was deliberately avoiding answering the questions. The second possibility is that his claimed condition and the medication which he is taking is of such a nature that it has substantially affected his recollection. Reference should be made to the plaintiff's cross-examination at T 164.5-.17 where he gave the following evidence: "Q. Isn't that something that you would be able to remember today if it happened some six or seven years ago? A. Not really. You try being in pain for four years and having depression for four years and see how much you can remember. Q. You say do you that the pain and depression that you've had for the last four years have substantially impaired your memory is that correct? A. Yeah. Q. If that's so isn't it the case that your memory of events over the last four years may also be impaired? A. No. If I remember something I'll tell you. If I don't remember I'll tell you I don't remember it." (T 164.5-.17).
There were a number of times where the plaintiff's answers seemed to be surprising and in my view indicated a likely evasion of giving truthful answers. Examples include: 1. At T 190.25-.30 it was put to the plaintiff that he had to leave the family home because an Apprehended Violence Order was taken against him, which he denied. However he was unable to give the reason why he moved out of the family house at that time. An inability to recall the reason is surprising; 2. Mr Williams was asked many questions about his dealings with the Department of Corrective Services relating to him fulfilling a Community Service Order. The plaintiff said he could not remember dealing with any officers from the Department of Community Services or Corrective Services: T 191.41. This again is surprising having regard to the nature of such an order and the numerous documents relating to the plaintiff's dealings with the Department officers in the evidence.
Reliance was placed by the defendant on certain admissions from the plaintiff. The defendant asked questions in cross-examination to the effect that the plaintiff was willing to take what could broadly be described as inappropriate action when it suited him. Examples included: 1. That he was willing to drive whilst unqualified when it suited his personal purposes: T 169.38, T 170.32; 2. He was willing to lie in the medical questionnaire for the medical he took for the purposes of working for the defendant in relation to his prior back conditions, workers compensation claims and depression: Exhibit 3, 223. The plaintiff conceded in cross-examination that he was willing to lie in the medical form signed by him on 16 February 2012 (T 225.9) even though he knew it would be sent to his employer and he knew that it would be sent to whoever he went and worked for and they would rely upon it: T 225.37. He gave evidence that he denied that he had lost any time from work through illness or injury between February 2010 and February 2012: T 227.49. The plaintiff said he lied in the form so he could work and earn money and not stay on Centrelink: T 230.40 and T 230.21.
In the course of giving his evidence the plaintiff appeared on occasions to be in serious pain. The plaintiff walked slowly in and out of court and to the witness box and frequently grimaced in apparent pain. On occasions his answers appeared vague and on other occasions he appeared precise in the answers which he provided. The court frequently reminded the plaintiff that he could ask for an adjournment if he found his pain affected his evidence.
The plaintiff's counsel, in his submissions, argued that the plaintiff should overall be accepted as an honest and reliable witness, albeit with some failings in his memory of events prior to 2012. It was submitted that there is no reason why the plaintiff would have a good memory of events between 2008 and 2010, particularly the doctors' consultations: reply submissions at [4]. It was said that, in comparison, there was good reason for the plaintiff to recall the events of 2012 which had a significant and continuing impact upon him: plaintiff's reply submissions at [8]-[9].
The defendant's submissions on this point, in summary, were that the plaintiff was not a credible witness and was either unreliable because of his poor memory or embellishing and exaggerating in his evidence: submissions at [5]-[6], [13]-[14] and [28]-[29]. It was said that the plaintiff's evidence relating to the alleged injuries on 30 May and 1 June 2012 differed relevantly: submissions [382]-[397]. It was also submitted that the plaintiff adopted a deliberate ploy of pleading a bad memory in relation to the events prior to February 2012 but asserting a very accurate memory of his time at the defendant's premises: submissions at [27], [33], [35], [74] and [161]-[166] are examples .
In my view, the plaintiff's evidence about his poor memory, his concessions as to the unreliability of his recollections, the apparent limited recollections which he had of his medical status between 2008 and 2010 and the plaintiff's inconsistent presentation in giving evidence all provide a reason for the plaintiff's evidence to be treated with some real caution by the court. This is particularly the case in relation to matters prior to him commencing work at Metcash. The plaintiff's apparent inability to remember the detail of his medical conditions in the period 2008 to 2010 is very surprising. I do not accept the plaintiff's written submissions on this point: reply submissions at [4]. I gained the firm impression and I find that the plaintiff was deliberately being vague in relation to his recollections in this period to attempt to minimise the suggestion that he had continuing low back pain and/or depression up to the time when he commenced at Metcash.
I also accept the defendant's submission that generally preference should be given to contemporaneous documentary records over the plaintiff's recollections unless there is a reason to take a contrary approach: see submissions at [30]-[32].
I will provide further comments in relation to the plaintiff when I discuss the joint conclave expert and medical opinions further below. I will also consider the plaintiff's evidence in relation to a number of important factual issues which need to be decided.

Evidence of Ms Nafsika Stylianou

Ms Nafsika Stylianou, who is the plaintiff's de facto partner, gave evidence in the proceedings. Ms Stylianou is 31 years old and first met the plaintiff in mid-2013. A relationship formed between them and they began living together in August 2015 when they bought a house together.
Ms Stylianou in substance confirmed the evidence of the plaintiff in relation to his current physical limitations and activities.
Apart from a minimal amount of sweeping, loading the top dishwasher and modest food preparation by the plaintiff, Ms Stylianou confirmed that she did all domestic duties around the house. She also confirmed that the plaintiff appeared to be in pain frequently and often had to stop activities and lie down. Ms Stylianou gave evidence that the plaintiff has to get up from a seated position frequently and walk around and then lie down. She said he does not sleep well and wakes up a lot. She said he never has a proper night's sleep.
Ms Stylianou gave evidence that the plaintiff's condition varied from day to day but every day was difficult for him to some degree. This evidence is somewhat different to the plaintiff's claims of being in virtually constant pain.
Ms Stylianou confirmed that the plaintiff's left leg had given way on occasions and this had caused him injury.
Ms Stylianou did not have a driver's licence and she gave evidence that she had to change jobs as the plaintiff was not always able to pick her up in a car from the railway station due to his pain and the fact he was frequently resting. She gave evidence that the plaintiff's limitations had a substantial effect on their social life and they did not go out very much or do many things socially. She said the plaintiff was unable to sit in a cinema.
Ms Stylianou stated that although the plaintiff was very keen on motor cars, he did not work on them from her observation.
Ms Stylianou gave evidence that while the plaintiff was able to shower and dress himself, on occasions she assisted him if he was in a lot of pain. She gave evidence that his condition had been generally consistent whilst they were living together even though each day was somewhat different. She confirmed that she did all domestic duties around the house including cleaning the bathrooms, doing the washing, all vacuuming, mopping and all cooking.
In cross-examination Ms Stylianou gave evidence that she and the plaintiff did the shopping together and he drove to the required shopping centre. She also gave evidence that the plaintiff drove to his parents' house on occasions with her.
Ms Stylianou confirmed that the plaintiff registered an Australian Business Number in 2014 as he wanted to establish a business of cleaning and maintaining cars and subcontract out the physical work to other people. However, the idea had not advanced since the registration. She agreed that she would encourage the plaintiff in any business if he wanted to do it.
Ms Stylianou said the plaintiff had on occasions attempted to mow the lawn but usually could not complete it and that the lawn and their garden had been left unattended to. She said that she herself had no time to mow the lawn because of her other domestic duties. She confirmed that their relationship was a good one. She also confirmed that she washed their clothes and sheets at the same time. Whilst they had a clothes drier, having regard to the fact that it was too low, the plaintiff could not himself load the clothes into it.
The plaintiff submits that Ms Stylianou's evidence should be accepted and that there is no basis to attack her credit or reliability: reply submissions at [10]. The defendant seeks to cast doubt on Ms Stylianou's evidence and points to the fact that she spends large periods away from the plaintiff whilst she is working: submissions at [50]-[51].
Ms Stylianou impressed the court as an honest and straightforward witness. She was clearly dedicated to the plaintiff and sympathetic about the pain from which he apparently suffers. I have no hesitation in accepting her evidence of the plaintiff's activities and apparent limitations since they met and started living together and the division of domestic duties at the house where they are currently living. Her evidence did not appear to me to be affected by any financial interest in the outcome of the proceedings.

Evidence of Mr A Bannerman

Evidence was given by Mr Andrew Bannerman. Mr Bannerman commenced working for the defendant at its Blacktown Warehouse in the middle of 2011: T 338.16. Prior to working at the defendant he had previously worked as a picker and packer for various other companies. When he commenced at Metcash he was employed directly by them as a picker and packer: T 338.29.
Mr Bannerman gave evidence that he suffered a back injury whilst working at the defendant's Blacktown warehouse in October 2011. Thereafter, he submitted a workers compensation claim, had various periods off work, was placed on light duties and attempted on numerous occasions to resume his picking and packing duties fulltime without success due to aggravating his back injury. Mr Bannerman gave evidence that he injured his back when he attempted to lift two boxes of soft drink and place them on a pallet.
Mr Bannerman gave evidence that he started working at the Huntingwood warehouse of Metcash at about the end of January 2012. Initially he worked as a cleaner, then did some work in accounts and from time to time undertook picking/packing duties when his back allowed him. It seems from the totality of Mr Bannerman's evidence that he continued work at the Huntingwood warehouse at Eastern Creek of the defendant from January 2012 to some time in mid-2012: T 339.28; T 344.31.
In general terms, Mr Bannerman confirmed aspects of the plaintiff's evidence and also provided further evidence in relation to the system used at the defendant's Huntingwood warehouse: 1. Mr Bannerman said that workers had to pick at "100% rates". He said that if they did not, they lost overtime and casuals would not get more work. In addition, workers had to work through their lunch break to pick up the pick rate: T 340.5. Mr Bannerman said at Metcash it was very hard to get to a 100% pick rate: T 341.1; 2. Mr Bannerman confirmed the plaintiff's evidence that when the pallet jack vehicle was stopped next to a pick slot that there was a very narrow distance between the vehicle and the pallet which is in the picking bay. He assessed the distance as "probably less than a foot": T 342.4; 3. Mr Bannerman confirmed that at the Huntingwood warehouse the racking was at different heights, although Mr Bannerman's recollection was that the shelves were at 1.3 metres to 1.4 metres up to 2 metres in height: T 344.5; 4. Mr Bannerman confirmed that he picked Chum dog food at the warehouse. He confirmed that the photograph at page 90 of Exhibit 3 depicted how the Chum dog food bay would appear: T 344.14. Mr Bannerman said that pickers were provided with a hook to assist in their picking but with a lot of the products the hook was "just tearing the plastic or breaking the boxes because of the weight of it": T 345.37. In relation to picking dog food from the Chum dog food bay, Mr Bannerman said the only way was to go between the two pallets and step onto the pallet and lean into it to grab the product: T 345.42. He confirmed that sometimes a worker had to kneel on the pallet or to crawl over the pallet if limited product was left on the pallet: T 346.1; T 346.18-.34. Mr Bannerman confirmed that a worker could not stand up under the racking for the dog food: T 347.6. Mr Bannerman said that as the height of the remaining product lowered a worker had to change their body position and body function at each level: T 347.50; 5. Mr Bannerman indicated that this sometimes involved him holding a box on each side and moving from left to right while stooped and while twisting to place the box on a pallet; 6. Mr Bannerman was asked how many boxes he would pick in one movement whilst he worked at the Huntingwood site in 2012. Mr Bannerman said that it depended on what product was involved. With dog food, two boxes would be picked to "keep up with your timing". He indicated that to keep up with timing a worker could not pick one box at a time: T 349.4. He gave evidence that the other pickers and packers in 2012 at the Huntingwood site were doing the same: T 349.32. Mr Bannerman gave the following evidence at T 351.41-.49: "Q. Remember we are only asking about the dry foods there at Huntingwood in 2012, can you tell us what your observations were? A. Virtually nearly every product I have seen people pick up two, three ‑ depends on the size ‑ could be up to five ‑ I wouldn't say five soft drinks or five Chum but definitely of the Chum it would be definitely two. It just depends on how heavy the goods are. If you can carry, say, for example, pasta, well, you might grab four boxes of pasta when you're only supposed to grab one ‑ it's just how we had to ‑ how we had to virtually beat the system to keep up with their system."; 1. Mr Bannerman gave evidence that he would observe the other pickers and packers picking up more than one box at a time on a daily basis: T 352.3. Whilst confirming that there were supervisors in the warehouse at Huntingwood in 2012, Mr Bannerman gave evidence that they were mainly at the front desk and that a supervisor never spoke to him about the number of boxes that he was lifting at a time: T 352.15.
In cross-examination, Mr Bannerman maintained the evidence which he had given in chief. Mr Bannerman conceded that he had made a claim against Metcash which had been resolved in August 2014. It was put to him that he did not feel very well disposed towards Metcash. He said that he still shopped at IGA and although he did not agree with their system he did not have what could be called a grudge against them: T 354.11.
Mr Bannerman conceded in cross-examination that he knew from his training that he was only supposed to grab one box at a time: T 356.34. However he asserted that once he started as a fulltime worker he had "no choice": T 356.19-.30. The cross-examination was also successful in showing that Mr Bannerman was not strong on dates and was involved in infrequent picking/packing at the Eastern Creek centre in 2012 after his initial October 2011 injury: T 359.50.
Mr Bannerman gave evidence in cross examination that he was pulled up by supervisors from the defendant and told to pick up his performance rate: T 366.12. He also stated that he was told to pick up his performance rate by a supervisor if he wanted Saturday work: T 366.39.
Mr Bannerman was cross-examined in relation to the pick slot where the dog food cans were placed. It was suggested to him that the dog food cans must have been placed in a 1.8 metre or 2 metre high pick slot. Mr Bannerman denied this: T 373.5. Mr Bannerman gave evidence that with the dog and cat food it was usually stacked at "about 1.2 - just under the shoulder height": T 373.26; see also T 374.2 and T 375.6. Mr Bannerman later confirmed that the dog food was kept in bays at shoulder height: T 375.23. His evidence appeared to negate that the dog food was kept in slots which were 1.8 metres high. Mr Bannerman said that there were sometimes three but usually two supervisors on duty and denied that there could have been as many as ten supervisors on duty: T 376.12. Mr Bannerman expressly denied that it was possible for workers to get very close to the 100% pick rate, picking in a safe manner, without picking up more than one heavy box at any one time: T 378.2. He said that he had not seen anyone actually do it.
The plaintiff submitted that Mr Bannerman was an impressive witness who should be accepted. It was argued that he did not know the plaintiff and had no reason to lie: plaintiff's reply submissions at [10].
The defendant submits that Mr Bannerman should not be accepted as reliable: he only worked picking at the defendant's premises on occasions in 2012 and spent most of his time in the office; he had difficulties remembering the details of when he worked; he clearly is no friend of the defendant as he was injured whilst working for them; and his evidence of the work practices at the time was vague: submissions at [52]-[66].
Overall, I found Mr Bannerman to be a generally honest witness. He gave his evidence in a forthright fashion and appeared to give it truthfully. The fact that he had injured his back severely whilst working for the defendant did not appear to me to influence his evidence. It seemed that he had some difficulties in remembering precise dates and the precise heights of different slot bays but confirmed that the dog food was not put in a 1.8 metre high bay. He also confirmed the general system as described by the plaintiff, including the common lifting of two or more boxes of product by workers, depending on weight, at the same time. Overall, Mr Bannerman's evidence was significant as providing support for some important evidence from the plaintiff in relation to the defendant's system, the pick rate, and the practices adopted at the Huntingwood site by workers at the time. His lack of precise recollection on some issues such as dates and his infrequent picking experience in 2012, require his evidence to be reviewed carefully with other evidence on relevant issues.

The defendant's evidence

The defendant called several witnesses and tendered voluminous documentation in support of its case.

Exhibit 2 - The film shown to site visitors

The defendant tendered a film which introduced persons coming onto the Eastern Creek premises to what occurred on the premises.
The film showed: 1. The site at Eastern Creek which included the very large undercover warehouse and distribution centre, part of which was occupied by the defendant; 2. A one way driving system where trucks delivered goods into the warehouse and other trucks removed assembled pallets of products for delivery to retail outlets; 3. That the warehouse had aisles with multi-layer shelving. Pallets of the same product were stored on various shelves. As the ground level pallet was exhausted of products, a forklift would move a pallet of products from elsewhere to the ground level to assist in allowing pickers/packers to pack their goods required for a retail outlet; 4. Pickers/packers controlling an electronic transport vehicle known as an electric pallet jack which had behind it one or two pallets for the purposes of selecting goods. A picker/packer would wear a headset and listen to automated directions to go to various locations in the aisles of goods to select items to fill an order. When the pallet of goods was completed the picker/packer would seal the items with plastic wrap and they would be delivered to a dock for transport by truck to the retail outlet; 5. A control bay where supervisors obtained the order sent by computer from a retail outlet and then the order was collected with labels by the picker/packer for completion.

Oral evidence of Mr E Roberts

Oral evidence was given on behalf of the defendant by Mr Ernest Roberts who had been an employee of the defendant for 13 years and currently performed the role of Risk and Compliance Manager for the defendant. He undertook that role for the defendant both as at 2012 and at the date of the trial. His various certificates and qualifications became Exhibit 1 in the proceedings. As part of his duties, Mr Roberts prepared training and safety programmes for persons working with the defendant, including new inductees from labour hire companies.
Mr Roberts gave evidence that the premises at Eastern Creek which were known as the Huntingwood premises were completed in November 2011 and commenced from that time. Prior to that time, the defendant's premises were located at Blacktown. Mr Roberts gave evidence that the Huntingwood premises were used for storage and distribution of products and had an area of about 90,000 square metres: T 18.40.
Mr Roberts gave evidence in relation to the procedures which were adopted in the warehouse in 2011-2012. He said that the product was received and stored in the warehouse by the defendant. The pickers/packers who were also known as assemblers signed on, obtained their electric jack pallet vehicle, did a pre-operational check on the vehicle, placed headphones on, received instructions and then proceeded to assemble on one or two pallets attached to the back of their electric vehicle, the goods for dispatch: T 19.5; T 22.24; T 29.40.
Mr Roberts gave evidence that in 2012 there were two shifts and between 80 and 100 pickers/packers worked on each shift. Some were permanent employees of Metcash and some were from labour hire companies. The warehouse was a large one with 26 receiving bay areas and 47 loading dispatch docks: T 19.40. The warehouse was a constant base of activity: T 19.47. It had 46 aisles which were four metres wide and shelving going up 11 metres in height, although some were only nine metres in height, depending on the product and the location within the warehouse: T 20.15.
The goods were delivered to the warehouse on standard CHEP pallets. The aisles had the pallets loaded one deep and two across and were placed there by forklifts. At the time there were about 20 to 25 forklifts in operation per shift: T 21.7-.37.
Mr Roberts said that once a bottom pallet had been emptied by pickers this automatically triggered a request to a forklift to bring down a further pallet of goods to be placed on the lowest shelf level at the ground level: T 21.50.
A picker/packer moved throughout the warehouse wearing headphones listening to computer directions as to product and completed assembling the load. Mr Roberts said the system had not changed since 2004: T 22.45. He said about 40% of the time spent by a picker/packer was travel time with about 60% picking and loading time. Mr Roberts also gave evidence that Metcash's customers included IGA stores, bottle shops and 7 Eleven stores: T 23.14.
In relation to the range of products in the warehouse, Mr Roberts gave evidence that it included the usual grocery lines and that the boxes had different weights depending on the product: T 23.32-24.3.
Mr Roberts also gave evidence that he walked around the warehouse as part of his duties. He said he noted that the weights of boxes in 2012 varied from 1kg to a 20kg maximum. The 20kg box usually consisted of advertising material: T 24.39.
Mr Roberts confirmed that all visitors who came to the Huntingwood site saw the video which was Exhibit 2 in order to orient themselves to the site: T 25.23. The same video was shown in 2012 and is still shown today.
In relation to the shelving, Mr Roberts confirmed that the height of the shelving varied from 1.2 metres to 1.4 metres to 1.8 metres depending on the weight and size of the product: T 26.11-26.33. He gave evidence that the defendant's computer system kept a record of the items picked by individual pickers/packers and how long it took for them to complete the order: T 30.46. He said that material had been obtained in relation to the plaintiff's shifts from 29 May 2012 to 1 June 2012. These records included the product assembled by the plaintiff on the pallets and the weights of both the individual items and the total weight of the number of boxes of each item. From the records one is able to identify for each picker the product selected, the number of boxes, the weight of each box and the accumulated weight of the items and the time taken to pick them: T 35.14-.28. This material in due course became Exhibit 7.
Mr Roberts gave evidence that information was also retained by the defendant for monitoring a picker's performance to what were described as "Engineered Standards". A document prepared by Mr Roberts entitled "Engineered Standards" in November 2011 was admitted into evidence (Exhibit 3, page 179). The document describes Engineered Standards as follows: "Engineered Standards is a work measurement technique which allows efficient planning and scheduling of all warehouse activities and also offers management a very effective tool to measure the productivity of its employees. The introduction of Standards involved a two-step procedure, which initially analysed the basic motions required to perform the various tasks in the warehouse and secondly, assign to each motion a universally accepted and highly accurate pre-determined time standard."
The document describes the basis of an Engineered Standard as being: "A skilled man, working at a normal pace, using the preferred method". The reference to "a skilled man" is described as being to a person "who is trained and performs the job regularly".
Mr Roberts stated that when a picker commenced work at Metcash, for the first six weeks his expected performance to the Engineered Standard was adjusted. For the first week a picker was expected to meet 60% of the Engineered Standards accelerating to 100% after six weeks: T 35.45-36.7. He stated that 100% of the Engineered Standard was the performance base line for a picker/packer: T 36.11. Mr Roberts said a copy of the Engineered Standards document was provided to new employees: T 38.38. Mr Roberts confirmed that the document was prepared by him for training purposes: T 38.24. The Engineered Standard stated (Exhibit 3, page 180) that included in the standard time for a task was what was described as the assignment time, the pallet time, travel time, case time (which was picking the item and placing it on the pallet) and then time allowances for personal time such as toilet breaks, some fatigue time and some time for unavoidable delays. Travel time to complete the order took between 40% and 60% of the allocated time: T 41.24.
The Engineered Standards included, according to Mr Roberts: 1. Additional time being given for the lifting of heavy or bulky items; 2. Time to place the case onto the pallet with again additional time given for large and heavy items. Mr Roberts said that the Engineered Standards permitted Metcash to follow the performance of a worker. If a worker was not meeting the performance standards they would be given extra training or the allocation of a work "buddy" to assist them in making their work more efficient: T 44.1-.8.
Mr Roberts gave evidence in relation to performance achievements. He said no rewards were given to workers for exceeding the Engineered Standards: T 44.12. In addition, he said that the strict policy which was enforced by supervisors was for pickers only to lift one box at a time irrespective of the weight as this complied with correct lifting procedures: T 44.16; T 51.38. The supervisors consisted of 24 persons on any shift with 16 supervisors walking around the floor of the warehouse observing: T 44.31. In 2012 Mr Roberts gave evidence that he walked around the warehouse almost every day and observed pickers and packers in their tasks. If he saw a worker not following safe work techniques, including handling techniques, he would stop the worker immediately and instruct him or her how to undertake the task properly: T 44.48.
Mr Roberts gave evidence that certain documents were given or explained to all new workers: T 45.53-50.30. These included the Engineered Standards document, the Huntingwood site induction document, the safety induction training document and the employee's site induction guidelines. Another document shown to workers, the dry grocery assembler voice pick sequence document, included the following: "13. Manual handling warning - when picking the product ensures that preferred methods are followed for manual handling" (Exhibit 3, page 214).
According to Mr Roberts this was part of the standard operating procedure adopted at the Huntingwood warehouse: T 49.15.
Mr Roberts said that there was no endemic problem in 2012 of workers being unable to meet the Engineered Standards: T 46.26. This was because they were given six weeks from the commencement to reach the objective 100% standard.
Mr Roberts was taken to the document at Exhibit 3, page 206 which was the employee's site induction guidelines. Mr Roberts gave evidence that the purpose of this was to obtain the sign off of the proposed new workers to record that they had agreed to adhere to the induction procedures: T 47.34.
In the course of his evidence Mr Roberts was taken to the training progress record for the plaintiff which is at Exhibit 3, page 208. Mr Roberts said that it was not his signature on this document, although his name had been inserted there with the date 21 February 2012: T 48.40.
Mr Roberts gave evidence that the labour hire company for casual workers arranged to have medicals completed for workers prior to them being used. He also gave evidence that officers from the plaintiff's labour hire company which was known as "True Blue" were at the Huntingwood site every day and he observed them speaking to the labour hire employees, although he was not involved in this with them: T 51.49.
Mr Roberts was asked questions about alternative mechanisms and procedures referred to by the plaintiff's expert Ms Aickin in her report. He commented as follows: 1. He never saw workers lifting two or three boxes of dog food at a time in 2012: T 53.38; 2. He never saw workers lifting two or three boxes of Coke soft drink at a time in 2012: T 53.42; 3. He had never seen workers lifting two or three boxes of either dog food or coke at the Metcash Blacktown warehouse prior to the Huntingwood warehouse opening in 2011: T 53.46; 4. He said it was not feasible that the plaintiff could have spent the majority of his shift packing soft drink or dog food: T 54.14; 5. It was inconceivable that the plaintiff had been offered Panadol for pain by a supervisor on 29 May 2012. The plaintiff would have been referred to a first aid officer and they did not have authority to give out drugs such as Panadol: T 54.27; 6. In relation to Ms Aickin's suggestion of having heavier items such as Coke or dog food on self-raising platforms, Mr Roberts said this was not feasible because certain clearance areas were needed for a self-raising platform which could not be provided in the shelf system used: T 54.45; 7. In relation to Ms Aickin's suggestion of putting some pallets on a higher platform, Mr Roberts said this was not feasible as putting products on a higher platform would mean that the uppermost item would have been at above the shoulder level which would have made this more dangerous to pickers: T 55.13; 8. In relation to Ms Aickin's suggestion of a turntable being used for certain goods, Mr Roberts said this was not feasible: T 55.40. Pickers were also provided with a case hook in order to move cases of goods out to be closer to the picker.
In cross-examination Mr Roberts confirmed that some workers did not need two days training if they had previous experience which indicated that a lesser training period was required: T 57.4.
Mr Roberts confirmed that the shelving sizes ranged from 1.2 to 1.4 to 1.8 metres in height and also confirmed that Chum dog food was placed in 1.4 metre high shelving: T 57.42. Mr Roberts denied that a worker needed to stoop to pick up dog food from 1.4 metre high shelving. He said the worker could bend and keep their back straight to lift the product. He also denied that using the product hook had a risk of damaging the containers of product: T 59.15.
Mr Roberts was taken to the activity summaries for the plaintiff and agreed that some products picked apparently did not have a weight for the product. The excuse Mr Roberts gave was that the picker may have called the item but not included it. In those circumstances there would be a claim by the customer for non-supplied goods: T 62.39; T 64.25.
Mr Roberts was asked questions about a WorkCover complaint emanating from the plaintiff in May 2012. He said that he was not aware of the complaint at the time and had only been informed of it on the first day of the hearing. Mr Roberts said that there was a site specific training and induction programme with correct manual handling procedures in force at Huntingwood at the time.
It was put to Mr Roberts that he could not have been aware personally that every new inductee was given the scheduled training. Mr Roberts said that as far as he was aware every person commencing at the site was given the same programme: T 67.27. He said the induction programme was the same for all employees including being given six weeks to meet the 100% standard.
In re-examination, Mr Roberts said that no directive or order or recommendation was received from WorkCover to change the defendant's systems from November 2011 to June 2012. He also gave evidence that he was not aware of the outcome of the complaint made in 2012 by the plaintiff Mr Williams: T 68.36-.44.
Mr Roberts gave his evidence in a straightforward fashion and he struck me as honest. I generally accept his evidence. However, as a senior manager with the defendant he could only give evidence about the system that was used at the Eastern Creek warehouse, the practices and procedures adopted by the defendant and in relation to what he observed about picking practices. He did not, it appears, deal with the plaintiff, Mr Williams. As a senior manager it is likely that he spent much of his time in meetings or preparing documentation rather than supervising picking activities on the floor of the Eastern Creek centre.

Evidence of Mr S De Leon

Evidence was given in the proceedings by Mr Shannon De Leon. Mr De Leon is employed by the defendant and works at the Huntingwood Distribution centre. He gave evidence that he has worked at that distribution centre since it was opened in 2012: T 381.24. In 2012 he was working as a picker and packer in the dry goods area at the Huntingwood premises. Mr De Leon was the worker who provided guidance as the "buddy" for the plaintiff when he commenced work at the defendant's premises in 2012. Mr De Leon said that he remembered being a buddy for the plaintiff as this was the first time that he had acted as a buddy to someone: T 382.45 and T 392.37; cf plaintiff's reply submissions at paragraph 13. Mr De Leon said that he spent the whole of the first day with the plaintiff and half of the next day: T 384.2.
Mr De Leon gave evidence that when he was the buddy to the plaintiff he showed him how to pick and pack properly and safely: T 383.2. This included showing him how to pick up a box and place it on the pallet properly: T 383.31. Mr De Leon also said that he showed the plaintiff how to operate the electric pallet jack and also when picking from the second tier of shelving how to obtain the goods for the purposes of placing them on the pallet jack.
Mr De Leon could not recall whether the plaintiff did or said anything to him when he showed him how to lift the boxes: T 383.45. He also could not recall the height of the shelves in the pick slots where he showed the plaintiff how to pick: T 384.43. Mr De Leon said he did not recall showing the plaintiff how to use the case hook: T 385.27. However, Mr De Leon indicated that he used the case hook to grab stock from the second tier of shelving if it was out of his reach: T 386.2.
Mr De Leon gave evidence that he never lifted more than one box at a time as that was how he was trained: T 389.29. He stated that he used the same practice of bending his knees, keeping his back straight and lifting the box up to his chest with lifting soft drink boxes and dog food boxes: T 389.36.
Mr De Leon confirmed that there was a performance system in place at the Huntingwood premises in 2012 and that a picker had to pick the allocated cases within a time limit to reach the required percentage of 100%. He indicated that he was able to do that without any difficulty: T 389.2-.12.
Initially Mr De Leon said that he could not recall what height the pick slot was where the dog food was stored: T 391.9. However, in cross-examination Mr De Leon gave evidence that the dog food was stored in bays which were 1.4 metres high: T 394.14.
It seemed that Mr De Leon had a limited recollection of his dealings with the plaintiff in 2012. He could not recall using the case hook when the plaintiff was with him: T 388.9. He could not remember seeing the plaintiff do anything when he was his buddy: T 388.29. He did not recall filling in the training forms whilst he was a buddy to the plaintiff: T 392.19. He did not recall how many times he demonstrated to the plaintiff picking up a box during training and could not recall whether it only occurred just once. After some cross-examination, he conceded that he did not actually recall demonstrating picking up a box to the plaintiff at all: T 393.32. Mr De Leon frankly conceded that in giving his evidence he was reconstructing it in the sense that he did some training, he understood his normal system and he presumed that he complied with it in training the plaintiff: T 393.38.
Mr De Leon agreed that as the dog food was stored in bays of 1.4 metres in height a picker had to be able to lower his head height below the level of the rack to reach the goods: T 396.49. This could be achieved by either bending over and reaching forward for it or squatting down and reaching with arms at full extension to get the box. Mr De Leon conceded in cross-examination that in order to remove the box from in front of the picker to place it behind the picker on the pallet one had to reach forward into the bay, pick up the box, and turn and twist the picker's body to be able to manoeuvre the box out of the bay: T 397.49. He also agreed that that was the way by which he would normally go about performing the task of picking dog food when the first row of the dog food was no longer there in a pick slot: T 397.44. He agreed that was the way pickers and packers generally, from his observation, would go about performing the picking task: T 397.48.
Mr De Leon's evidence in this regard confirmed that a picker twisted their body in performing the manoeuvre to place the box on the pallet. In re-examination Mr De Leon gave inconsistent evidence by indicating that once he had dragged the box to him and picked it up he would turn his feet to turn around to place the box on the pallet rather than twist his body: T 399.29.
Mr De Leon was 24 at the time he gave evidence and was 20 when he acted as the buddy to the plaintiff when he started at the defendant's warehouse: T 381.11. Mr De Leon appeared to me to be a very nervous witness, possibly because he remained an employee of the defendant and he realised that he had been the buddy to the plaintiff who was bringing these proceedings.
In my view Mr De Leon had a limited recollection of his dealings with the plaintiff in 2012. Mr De Leon changed his evidence during cross-examination. He admitted the limited extent of his recollection and the fact that he was involved in reconstructing his evidence. I therefore am of the opinion that I should display some caution in accepting Mr De Leon's evidence. However, I have no reason to doubt that he was and is an efficient picker and packer and was able to meet the defendant's target of 100% pick rate during the time he has worked at the Huntingwood warehouse.

Evidence of Mr Stephen Miller

Mr Miller gave evidence in the defendant's case. He currently holds the position as Logistics Supervisor Automation at the defendant company. He has worked for the defendant company for 15 years. In 2012 he was a Supervisor in the dry goods area at the Huntingwood Distribution Centre at Eastern Creek where the plaintiff worked in 2012.
In general terms, Mr Miller's evidence was similar in relation to how the defendant's system worked in 2012 as was given by Mr Roberts and Mr De Leon.
Significant evidence given by Mr Miller in his examination in chief was as follows: 1. When Mr Miller commenced working at the Huntingwood premises of the defendant he undertook the role of Casual Supervisor looking after the labour hire: T 401.1. That role was to bring casual workers to become permanent workers for the defendant as employees; 2. Mr Miller said that he did not remember the plaintiff, Mr Williams: T 401.14; 3. Mr Miller explained the walk through process where potential casual workers were taken through the Huntingwood Distribution Centre. Mr Miller said the Bundy clock was explained in the walkthrough. He gave evidence that at the end of the day when the worker scanned out for the day the Bundy clock gave them two numbers, the first being the performance as a percentage of the Engineered Standard for their last job and a second number being the combined percentage performance for the whole day: T 403.44. A representative of Tru Blue, the labour hire firm which had employed the plaintiff, accompanied Mr Miller and other potential employees on the walkthrough: T 404.9; 4. Mr Miller gave evidence that during the day there would be six supervisors and a warehouse manager: T 405.28. The supervisors were situated at the control desk which was in the centre of the warehouse. This evidence should be contrasted with that given by Mr Roberts who suggested there were 16 supervisors on the floor during the shift: T 44.25. That is a significant difference in the evidence; 5. Mr Miller gave evidence in relation to the pick path for workers and stated that normally the defendant would have the heaviest items at the beginning followed by the medium weight items and then to the lighter items in order to have a steady pallet when the pallet was completed: T 407.34-.43; 6. Mr Miller said that on the walk through potential workers were shown the case hook which was a hook instrument used for the second level picks: T 409.6. The case hook was used to pull forward cases of product to the edge of the pallet to enable a worker to pick them up. This was used where there were two levels of shelves including a level above a 1.4 metre high pick slot: T 409.24; 7. Mr Miller said that during the walk through potential workers were shown the performance reports and "what's going to be expected of them": T 410.19. Mr Miller stated that every casual would be "performanced" on a report so that Mr Miller would have a regular report in relation to the performance of a worker compared to the stated Engineered Standard percentage report: T 410.23. These were the reports that a worker saw at the end of the day which automatically came on the Bundy clock when they had bundied off: T 410.40-T 411.7. This material was available in 2012 to Mr Miller as a supervisor: T 414.30; 8. Mr Miller gave evidence that he worked as a supervisor in 2012 at the control desk in the last work station. From there he could see workers moving in the pick path in the premises. Supervisors at the control desk could from that desk view aisles 40 to 45. In addition supervisors were obliged to walk the aisles and "maintain order". The role of supervisors was to monitor safety and talk to the workers regarding their performance among other things: T 423.32. Mr Miller gave evidence that on occasions he observed pickers and packers lifting more than one box of dog food. When he saw this he stopped the person doing it and went through the manual handling and safety issues with them: T 423.42-.48. Mr Miller said he would mention that picking two boxes created a danger in the worker of damaging themselves and also it would "cheat the system" because it affected the performance under the system. Mr Miller said there was no manual handling policy at Metcash in relation to lifting more than one box because workers were told not to lift more than one box: T 424.41; 9. Mr Miller stated that the Dallas Operating Computer System allowed information to be produced for a casual worker for the entire period the casual worker was at the Huntingwood premises working as a picker and packer: T 430.44; 10. Mr Miller denied that the plaintiff came to him on 29 May 2012 complaining of a back injury and that Mr Miller simply offered him some Panadol: T 435.26. Mr Miller said that he had never given Panadol to any of the workers at the Huntingwood premises as he was not allowed to: T 435.30; 11. Mr Miller said that representatives from Tru Blue the labour hire firm arranged medical assessments for prospective workers which were emailed to Mr Miller. If the information on the medical assessment indicated that the worker had a back injury the defendant would see if they could find suitable work for them but this would not include picking and packing as someone with a back injury would not be fit for the job: T 435.46-T 436.22; 12. Mr Miller gave evidence that the Tru Blue representatives were made aware of the pick rates at the defendant's premises. Mr Miller said that on a daily basis he and a representative of Tru Blue would go for a walk through the aisles and speak to the individual pickers and packers and explain to them the performance rate that they had achieved for the day before and whether that was positive or negative. Mr Miller said that he never told workers that they had to improve their pick rate otherwise they would not be able to continue to work at Metcash, rather that if they could not perform Metcash would help them by doing an assembly technique review and extra training to assist them to improve their performance: T 437.6-.25. Mr Miller gave evidence that whilst casuals were not refused particular shifts if they were not meeting pick rates where there was a shortage of work the lowest performers were sent home first so that the best workers were retained: T 437.29. Mr Miller also gave evidence that the defendant would text employees or inform them by telephone in relation to their pick rates. 13. It was obvious from the evidence of Mr Miller that there was a substantial emphasis placed by the defendant on the pick rates of employees. As Mr Miller explained it: "We needed the people to actually perform otherwise it's a continual tumble that was costing us money. So we would put the time in to get them to where they should be": T 438.7; 14. Mr Miller said in relation to the buddy system that new workers were given a buddy worker who was a good employee of the defendant and a "good performer" to show potential new employees how the system worked. The training with the buddy was for two days, depending on experience. Where people had previously worked in the industry they would only need one day's training: T 439.2; 15. Mr Miller was taken through the various documents which were provided to a worker during the induction training and the sign off requirements. Mr Miller gave evidence that workers were told not to lift more than one box (T424.41) and that the induction process in 2012 for casual workers included Mr Miller explaining to workers safety and manual handling: T438.34-.39.
Mr Miller gave important evidence in chief in relation to the method of picking up heavier items used at the defendant's premises in 2012. He indicated that in 2012 on occasions he saw pickers and packers lifting heavy boxes such as dog food boxes by twisting their torsos when moving them from a pallet in a pick slot onto a pallet behind the electronic pallet jack mover. He said he would stop the workers who were usually new casuals and display to them the correct manual handling technique which involved turning out from the pick slot, the worker turning on their feet and not twisting their back and then placing the item on the pallet jack.
Mr Miller gave evidence that there was sufficient room for a worker to lift a heavy box such as a dog food box using this technique because workers were trained to park their electronic pallet jack mover one metre away from the pick slot so that there was sufficient space to undertake safe lifting. Mr Miller indicated that dog food pallets were stored within the Huntingwood premises in 2012 at the start of the pick path. In 2012 he on occasions saw workers lifting boxes in a method which he considered to be unsafe by not keeping their back straight and not bringing the box straight into their chest and not turning properly on their feet by using twisting. He would stop them and display to them the correct manual handling technique.
Even where goods were removed from a pallet stack which had got lower, Mr Miller claimed that the correct technique could be used as there was sufficient room between the pallet and the electronic pallet jack. He described it as such: "Again, as per the demonstration, you step onto one foot, place it on the pallet, pick up the box, and you bring it straight into your body, and you come back at the pallet, straightening up, and turning on your feet": T 443.6-T 444.31, especially at T 444.24.
The practicability of the defendant's safe handling technique when picking up boxes of dog food from a 1.4 metre high shelf was tested in relation to Mr Miller in his cross-examination.
Mr Miller agreed in cross-examination that the dog food was kept under a shelf which was about 1.4 metres high (T 445.16) and that if a worker was trying to get a box from the back of the pallet it would first be necessary for the worker to get his head down below the 1.4 metres (T 446.6). A worker would then have to place one foot forward onto the pallet and to reach out to get the box and pull the box towards the worker to lift it up (T 446.8 and T 446.16). It was put to Mr Miller that he would not be able to lift the box with a straight back because he would hit his head on the roof of the shelf: T 448.19. Mr Miller said that the worker would lift the box by bringing it towards him and then stepping back with the lift: T 448.39. It was put to Mr Miller that this manoeuvre could only occur with a worker bending his back in reaching for the box under the shelf because of the limited space. Mr Miller seemed to concede that it was at least possible that this was required in order to lift the box because otherwise the worker would hit their head on the shelf before stepping back and straightening their back: T 448.43; T 449.12; T 450.41; T 451.19; T 451.49. Although Mr Miller attempted to say that a worker could lift such a box alone on the lowest level at the back of the pick slot without bending his back in accordance with the correct manual lifting training (T 450.30; T 452.4), he appeared to concede that a worker could not straighten their back until they stepped back because until they stepped back the shelving was over their head and they would strike it upon straightening their back: T 451.49.
The cross-examination then continued from a single box on the lowest level at the back of the pick slot to a scenario where there was a box at the back of the pick slot on a higher level with other boxes taken from levels below at the front of the pallet. Mr Miller stated that workers were encouraged to pick in layers so they took the first layer of boxes first (T 452.30) but he conceded that although that was the preferred method that did not happen all the time because workers often picked up the boxes most convenient to them (T 453.2) such that a pallet that had been part picked had a stepped effect (T 453.8). The box at the back could not be pulled towards the worker as it would fall down because other boxes on lower layers had already been removed (T 454.39). Mr Miller appeared to concede that if a person was taller than the 1.4 metre slot the worker would have to get back to the edge of the pick slot before he could straighten his back because the shelving was over his head: T 455.8-19.
The conclusion from this cross-examination was that in reaching for boxes of heavier product such as dog food at the back of a pick slot, a worker could not straighten their back to lift the product until they had manoeuvred themselves away from the pick slot because otherwise they would have hit their head on the shelving above. Removing the product whilst having a back which was not straight was suggested by counsel for the plaintiff to be dangerous in all the circumstances.
Mr Miller agreed that when undertaking a walkthrough when Tru Blue representatives were present that the manual handling technique which involved the worker bending their knees, keeping a straight back, putting the box close to their chest and coming straight up while walking backwards was represented to the representative as the way in which the work would be carried out by casual workers: T 455.38-.50. Mr Miller also agreed that he described the Engineered Standard to the representatives from Tru Blue and he represented that it was a safe system: T 456.11.
The cross-examination of Mr Miller then proceeded to the induction documents. Mr Miller conceded that some of the induction documents in relation to the plaintiff had apparently been completed by him by printing in the signature of the relevant persons and not obtaining their actual signature. This was despite the fact that Mr Miller gave evidence that it was important that each of the people listed in the documents in fact signed off on the documents to show that the proper training had been given: T 458.3; T 458.11; T 459.9. Mr Miller indicated that despite this the training would have occurred (T 459.17, the document at Exhibit 3, page 208). Mr Miller also agreed that he did not sign as supervisor where he was the supervisor: the document at Exhibit 3, page 209).
Mr Miller was then cross-examined in relation to his evidence in chief that the boxes were picked from the heaviest to the lightest on the pick path: T 462.26. When presented with Exhibit 7 in relation to the plaintiff, Mr Miller conceded that his understanding of the system appeared to be wrong as Exhibit 7 showed that the picking history interspersed heavier products having being picked amongst lighter one: T 467.24-.49.
Mr Miller was then taken to the photograph at Exhibit 3, page 93. He agreed that the photograph depicted the pallet jack being parked one metre from the slot where the worker was standing and that this depicted the amount of space in which the worker would have to move between the slot and the pallet jack: T 470.21-.27.
Mr Miller gave evidence that in 2012 the casuals were hired originally for a 12 week period and then they were assessed for fulltime employment (T 470.49). Casual workers were informed that if they were good enough during the 12 week period they would be offered fulltime employment which provided casuals an incentive to work well during those 12 weeks (T 471.15). Mr Miller conceded that the casual worker's pick rate was fairly important in terms of assessing the workers and that he conveyed to the casual workers that the picked rate was important in decided whether they would be made: T 472.1. He said he would expect as a result of that that the casual workers would do their hardest to get 100% pick rate as long as they were working safely: T 472.6.
Overall I found Mr Miller to be an honest witness who gave his evidence in a straightforward fashion. He made concessions where appropriate. His evidence was significant in relation to the defendant's policy of only one box being lifted at a time by a picker. Although his evidence was that on the induction documents signatures were sometimes not obtained and the relevant person's name was printed I do not find that this system was dishonest in any way or that Mr Miller intended to give false evidence.

The medical evidence

Extensive medical evidence was tendered by both the plaintiff and the defendant. This consisted of voluminous medical notes from the various doctors which the plaintiff had consulted, reports from treating doctors both before and after the accident, Centrelink benefits medical certificates and medico-legal reports for the purposes of the proceedings.
In addition, the court had before it joint conclave medical reports by medical experts in relation to the plaintiff's psychiatric condition and orthopaedic/neurological condition.
It is necessary to consider these reports in some detail to determine the extent of the plaintiff's medical condition prior to commencing work at Metcash, whether he incurred any injuries at Metcash and his current medical status.

Pre-accident imaging reports

In evidence was a report of Dr John O'Rourke, radiologist, dated 26 March 2009 following an MRI of the plaintiff's lumbosacral spine conducted on 20 March 2009. The clinical history provided was that of back pain following a work related injury and the doctor was asked to assess for disc pathology. The report noted an unremarkable MRI of the lumbosacral spine showing no focal disc protrusion with normally maintained lumbar lordosis and no paravertebral abnormality.
It thus seems that as at 26 March 2009 the plaintiff's complaints of considerable lower back pain did not involve any clear radiculopathy.
An earlier x-ray report of Dr Cooke dated 3 March 2009 of the plaintiff had a similar conclusion. A CT of the lumbar spine disclosed no abnormality or visible injury.

Evidence of Dr Rhee

Oral evidence was given by Dr Charles Rhee who was the plaintiff's general practitioner from 2009 until 2013 when he relocated to another area in Sydney. Between 2008 and 2013 Dr Rhee practised at the Lakes Drive Medical Centre in Glenmore Park in western Sydney. Dr Rhee gave evidence that he had a computer in his consulting room using the software system Best Practice. He was able to enter information concerning patient consultations into the software using the computer and he did so as a routine practise. He also gave evidence that his routine practise was to make notes about patient consultations while the patient was with him: T 255.29. He also indicated that the practice which he adopted was that medical notes made by him should be comprehensive and should contain all significant information: T 255.45.
Dr Rhee said that he had had an opportunity to look at his computer records relating to the plaintiff prior to giving evidence. He said that he recognised the plaintiff as his patient but he did not have any detailed recollections of the consultations with him. Dr Rhee said that in relation to specific consultations with the plaintiff he would need to refer to his clinical notes in order to assist the court: T 257.15-.43.
Dr Rhee took extensive notes in relation to his consultations with the plaintiff from 2009 onwards. Those notes appear in Exhibit 3 which was the defendant's court bundle. Dr Rhee was called by the defendant in the proceedings.
In his evidence in chief, Dr Rhee was taken to three Centrelink medical certificates for the plaintiff which he prepared: Exhibit A, pages 329-331. The first medical certificate was dated 19 February 2010 and indicated Dr Rhee's diagnosis in relation to the plaintiff as clinical depression, fracture of the right fifth metacarpal and chronic back pain from 30 September 2008. In the second medical certificate dated 7 May 2010 Dr Rhee indicated his diagnosis in relation to the plaintiff as being clinical depression, right hand metacarpal fractures and chronic back pain from the same date. The third medical certificate is dated 23 January 2012 and indicates Dr Rhee's diagnosis in relation to the plaintiff as being clinical depression and chronic back pain.
In the first two medical certificates, the condition of chronic back pain is indicated as being "exacerbation of existing condition". In the third certificate, chronic back pain is indicated as being "temporary". Also in the third certificate the plaintiff's symptoms for clinical depression have been altered to delete "poor sleep" from the previous certificate and to add "agitation". It is indicated in the first two certificates that the prognosis for chronic back pain was uncertain whereas the prognosis for clinical depression was "likely to show considerable improvement within two years". In the third certificate dated 23 January 2012 the prognosis for chronic back pain was indicated as being "uncertain".
Dr Rhee in chief gave evidence that between 2009 and 2013 he had a practice as follows: "Q. Can you tell the Court whether you had a practice at the time, between 2009 and 2013, in relation to how you would go about completing such a certificate? A. So normally I would ask the patient what would be the purpose of the certificate and so it could be that the patient could be saying he or she couldn't work due to various medical problems therefore they need the Centrelink medical certificate and I would ask what would that be from? Like what are the problems that are causing the issue and then I would list them here and afterwards I would show this to the patient, that's my usual practice, and then give it to the patient after I complete it. Q. Would you ask the patient to read the certificate before they left your rooms? A. Yes. Q. Why would you do that? A. Just so that they ‑ or so that I understood the patient correctly and I didn't make any errors, or to minimise any mistakes. Q. Did you identify, when preparing such a certificate, medical conditions that were affecting the patient, according to the patient, at the time that you were preparing the certificate? A. Yes." (T 258.26-.48).
Dr Rhee gave evidence that in preparing the certificates his practise was to go through with the patient the symptoms that the patient was experiencing at the time and he made changes to the certificate on the computer system accordingly: T 261.26. In relation to the third certificate dated 23 January 2012, Dr Rhee said that the information from it could potentially have come from two sources being his own notes and from the patient. He said he could not remember the specific details in relation to his completion of the third certificate: T 262.20.
Dr Rhee said that he had a recollection of the plaintiff complaining to him of chronic back pain and depression and seeing the plaintiff on numerous occasions: T 262.36-.43.
The clear objective of the examination in chief was to establish from Dr Rhee that the three certificates showed the plaintiff's depression and chronic back pain continuing from 2010 to January 2012 immediately before he commenced work with the defendant. The evidence obtained in chief also established that the material in the certificates came either from the plaintiff or the doctor but would have been shown by Dr Rhee to a patient for confirmation before the certificate was signed and given to a patient such as Mr Williams for presentation to Centrelink. See the defendant's written submissions at [167]-[177].
Dr Rhee was then cross-examined to show that despite what appeared in the Centrelink Medical Certificates prepared by him in 2010 and 2012, his clinical notes did not refer to the plaintiff's back condition as opposed to his depression from early 2010. The clear purpose of the cross-examination was to show that the plaintiff had made no complaint recorded in the medical notes about his back condition for a period of about two years before starting at Metcash and particularly no complaint after May 2010. This was in contrast to the indication in the Centrelink certificates that the back condition of the plaintiff had been an ongoing one up to January 2012, immediately before the plaintiff started at Metcash.
In cross-examination, Dr Rhee was also taken to the plaintiff's CT and MRI scans completed in March 2009 (Exhibit 3, pages 425-426) which were normal and he gave the following evidence: "Q. Being aware that in March 2009 there was a normal MRI scan but from your own notes there was a normal CT scan, would a likely explanation for Mr Williams problems at this time in 2010 was he had some form of soft tissue musculoligamentous strain? A. In the absence of any other traumatic injury between those scans and when I have seen him, then I would normally conclude that that would be due to soft tissue or other injury, not the disc. Q. Would that be the kind of condition that one would expect to get better over time? A. Typically, usually." (T 266.12-.22).
After being taken through his clinical notes in detail in cross-examination, Dr Rhee confirmed that from his notes, as at January 2012 it had been almost two years since Mr Williams had made any complaint to him in relation to his back: T 270.40. See also paragraph 7 of the plaintiff's reply submissions; cf defendant's submissions at paragraphs [176]-[177]. This is consistent with the plaintiff commencing heavy picking work with VersaCold in 2010. Dr Rhee said he did not have any independent recollection of the issue.
Dr Rhee was then taken to his notes for his examination of Mr Williams on 15 June 2012 which was shortly after the accident. He confirmed that the plaintiff's ability to only reach 20 degrees of straight leg raising before pain was caused, usually indicated irritability of the nerve root at the level of the lumbar spine: T 272.5. In addition, Dr Rhee said that he found according to his notes tenderness at about the L4/5 level: T 272.11. He said Mr William's presentation on 15 June 2012 was of someone who had a significant problem with their back: T 272.18. In the light of that, Dr Rhee confirmed that from his notes there had been a significant change in Mr William's back some time between when Dr Rhee saw him on 23 January 2010 and when he saw him on 15 June 2012: T 272.28, T 273.48.
Dr Rhee then confirmed there was an error in the letter he wrote to CGU Workers Compensation in November 2012 (Exhibit 3, page 649). Dr Rhee confirmed that he intended to say that he had not seen the plaintiff for his back problems since 2010: T 274.16-.33.
Dr Rhee gave his overall opinion in relation to his medical records in the following way: "Q. Taking these matters into account, doctor, in March 2009 there's a normal MRI You received no complaint of back pain from Mr Williams after February 2010 until you see him on 15 June 2012, take into account his complaints at that time of leg pain, your examination findings at that time including the restricted straight leg raised, would it be your opinion that the disc protrusions, demonstrated on the MR scan referred to in your note of 23 July 2012, were probably caused by the incident that Mr Williams described to you? A. According to my notes, it certainly appears that I believed that that was the case." (T 275.42-.50).
Dr Rhee also agreed that it was possible that in the Centrelink certificate dated 23 January 2012 he had failed to delete as no longer being relevant the chronic back pain: T 278.32. Dr Rhee was taken to page 333 of Exhibit A which was the Patient Health Summary printed as at 14 April 2014 for the plaintiff. He agreed that the fact that the reference to "chronic lower back pain" was recorded in the "inactive past history" whereas the history of the disc protrusion was in the "active past history" suggested as part of his usual practice that the chronic lower back pain had been resolved and it was a different condition to the disc protrusion: T 279.6-.35.
In re-examination, Dr Rhee gave evidence that his prescription of the drug Pristiq for the plaintiff on 24 October 2011 was for depression: T 285.26. In relation to the reference to chronic back pain in the Centrelink certificate signed by Dr Rhee on 23 January 2012 (Exhibit A, page 331), Dr Rhee said that although he did not have an independent recollection of the matter, the reference to chronic back pain in the certificate usually would mean that the patient came to him requesting the certificate and identified that thing as the reason for the medical certificate. The defendant sought to rely on this evidence as establishing that the plaintiff was still complaining of chronic back pain as at 23 January 2012.

Reports of Dr C New

Two reports of Dr Charles New dated 21 January 2013 and 13 December 2013 were relied on by the plaintiff. In the second report, Dr New, who is an orthopaedic and spinal surgeon, said the radiographic evidence available confirmed a disc bulge at L5/S1 level. The doctor noted markedly reduced lumbar spinal movement and disruption of the plaintiff's normal lumbar pelvic rhythm. He advised the plaintiff to have nerve conduction studies and a nerve root sleeve block as well as an intensive programme of physiotherapy, hydrotherapy and a functional capacity assessment (Exhibit A, page 3).
It is noted that the report dated 13 December 2013 of Dr New indicates that he had been provided with a history by the plaintiff that prior to the 1 June 2012 incident he had some minor muscular discomfort in the past but certainly nothing that would require him to take time off work and he had never had radicular pain or sciatica before. This is markedly inconsistent with the plaintiff's medical history in 2008-2009 as revealed in the evidence.
Reports of Dr J Bodel, orthopaedic surgeon, which are in evidence, make a number of references to opinions from Dr New. These indicate that Dr New was of the opinion that surgery was not indicated for the plaintiff and Dr New advised conservative care and referral for pain management which apparently occurred with the plaintiff falling under the care of Dr Boesal (see Dr Bodel 26 August 2014 report, page 4, Exhibit A, page 23). Dr Bodel also indicates that Dr New arranged for nerve conduction studies to be completed for the plaintiff and these nerve conductions showed no definite sign of "distal nerve conduction abnormality in the left lower limb and no active denervation changes for radiculopathy in L3, L4 or L5". Dr Bodel's 20 May 2015 report also indicates that Dr New did not recommend surgery for the plaintiff.

Reports of Dr J Bodel, Orthopaedic Surgeon

As indicated above, a number of reports of Dr Bodel were in evidence. These reports all suggest an inaccurate medical history was provided to Dr Bodel by the plaintiff. In addition, the plaintiff's history provided of the circumstances of the two injuries was inconsistent with his oral evidence. The history set out by Dr Bodel in his reports is that the plaintiff had a "minor muscular spasm in the back about 4 or 5 years ago" that settled within a matter of a few weeks, did not trouble him again and did not require time away from work or significant treatment. In fact, the evidence establishes that the plaintiff had ongoing back pain for a substantial period from 2008-9, made a workers compensation claim and required two months away from work.
In his 15 February 2013 report, Dr Bodel referred to an MRI scan done on 16 July 2012 which in his opinion showed evidence of disc pathology at the lumbosacral junction. He further described the MRI scan as follows: "16.07.2012…MRI scan of the lumbosacral spine…there is some minor bulging at the L4/5 level". Dr Bodel expressed the opinion that the plaintiff had mechanical backache associated with disc pathology at the lumbosacral junction with left-sided sciatica and that the plaintiff had an impairment consistent with the injury as described. He indicated that the plaintiff was not fit for pre-injury work as a storeman packer and would struggle to return to pre-injury work because of the underlying pathology. Dr Bodel indicated that the plaintiff's prognosis was uncertain and that his normal life had been significantly impaired.
In his 12 November 2013 report, Dr Bodel referred to the fact that the plaintiff had developed significant psychological disturbance as a consequence of his failure to improve. Dr Bodel expressed similar opinions as in his previous report. He indicated that the plaintiff's prospects of returning to his pre-injury work were very poor but he should be capable of eventually returning to restricted duties. Dr Bodel advised that future treatment and rehabilitation were reasonable and necessary for the management of the injury and the plaintiff had been significantly impaired. His opinion was the plaintiff had mechanical backache associated with disc pathology at the lumbosacral junction with left sided sciatica and radiculopathy.
In his 26 August 2014 report, Dr Bodel referred to an MRI scan of the lumbosacral spine as confirming left sided disc pathology principally at the L4/5 level. He indicated that on clinical testing the plaintiff had definite clinical signs of L5 nerve root irritability despite a nerve conduction study not confirming nerve conduction abnormalities at that time. Dr Bodel expressed the opinion that the plaintiff required domestic assistance for heavy household maintenance and cleaning activities.
In his 20 May 2015 report, Dr Bodel indicated that the plaintiff had been referred to Dr Al-Khawaja, a neurosurgeon, who could not determine a diagnosis. He also indicated that the plaintiff had been seeing Professor Boesal, a pain specialist and anaesthetist. Dr Bodel referred to a 1 December 2014 MRI scan of the lumbosacral spine and made the following comment: "This shows a small far lateral left L3/4 disc herniation with a small herniation at the L4/5 level particularly in the standing view, and some minor dehydration at L5/S1. There is a small annular tear at the L5/S1 level."
Dr Bodel noted that the plaintiff clinically had some objective signs of L5 nerve root irritability in the left lower limb. He expressed the opinion that there was significant disc pathology in the lumbosacral region causing nerve root irritability involving the L5 nerve root but stated that the scans showed "a fairly subtle pathology". He indicated that the plaintiff appeared to be quite genuine. He also noted that the plaintiff had early degenerative change now affecting the discs and the associated facet joints which was a natural outcome of this type of injury.
In relation to the plaintiff's course of treatment, Dr Bodel indicated that medication and pain management are the mainstay of treatment and that surgery was an unlikely future treatment prospect. He recommended ongoing intermittent physiotherapy and an exercise programme. Dr Bodel expressed the opinion that the work injury was a substantial contributing factor to ongoing pathology.
After referring to a report from Dr Casikar dated 7 April 2014 Dr Bodel stated: "I still find that there is a mild impediment of the L5 nerve root on the left hand side with a diminished medial hamstring reflex and weakness of extension of the left great toe. I am still comfortable that there is evidence of radiculopathy in the left leg."
In his report dated 15 September 2016, Dr Bodel was presented with a report of Dr Maxwell who indicated that his investigations were normal and the physical examination of the plaintiff was noted for conscious fabrication and modified pain behaviour.
Dr Bodel stated that the plaintiff presented to him in a genuine manner. He expressed the opinion that his clinical findings were different from those of Dr Maxwell and that when he saw the plaintiff there were definite clinical signs of the nerve root involvement of the L5 nerve root. He also noted the MRI scan of the lumbosacral spine as indicating minor bulging at the L4/5 level. Dr Bodel said that material indicating a back injury to the plaintiff in 2009 did not cause him to alter his assessment. Dr Bodel's opinion was summarised as follows: "In summary, I note the material that you have provided. I last assessed him nearly 18 months ago. On the basis of that clinical presentation I was satisfied that there was ongoing residual signs of radiculopathy involving the L5 nerve root in the left leg which was consistent with the observed pathology in the upright MRI scan dated 1 December 2014 and his clinical presentation".

Report of Dr S Allnutt

The plaintiff tendered a report of Dr Stephen Allnutt, psychiatrist, dated 2 March 2015.
Dr Allnutt referred to work-related injuries to the plaintiff on 29 May 2012 and 1 June 2012. In relation to the plaintiff's mental history Dr Allnutt stated as follows: "At the time of the index injury he was not taking medication and was not seeing a mental health professional. He had had a prior contact with a mental health professional when he was aged about 23/24, when he was diagnosed with depression. He was prescribed Pristiq by his general practitioner but could not recall how long he took it for. Around that time he also attempted suicide. The trigger for his depression was losing his licence. He said he had had a lifelong interest in cars and this had been a significant blow for him. At that stage he also became bankrupt. He was unaware of any further episodes of depression until after the index injury. He was not suffering any medical problems at the time."
In his report Dr Allnutt noted that the plaintiff's mood was depressed on examination. Dr Allnutt's diagnosis was that the plaintiff manifested a constellation of anxiety and depressive symptoms. Dr Allnutt continued in his opinion as follows: "The depressive symptoms are characterised by depressed mood with reduced and impaired sleep, fluctuating appetite, reduced energy and motivation, difficulties with concentration, reduced self-esteem, loss of interest in usual activities, anhedonia and intermittent suicidal ideation, consistent in my view with a major depressive disorder. Given that these symptoms persist, he manifests a persistent depressive disorder at this point."
Dr Allnutt expressed the view that the plaintiff's symptoms had been persistent for many years and the most significant aggravating factor appeared to be the plaintiff's chronic low back pain and the impact that had on his capacity and subsequently on his mental state and self-esteem, ultimately creating in the plaintiff a sense of demoralisation. The view was expressed by Dr Allnutt that the plaintiff's psychiatric symptoms had stabilised and as long as the plaintiff's chronic low back symptoms persisted the plaintiff would likely continue to experience difficulties with his mood.
Dr Allnutt recommended the plaintiff to engage in a pain management programme and ongoing consultations with a psychiatrist or a psychologist and the taking of antidepressant medication. He expressed the opinion that "the injuries of 29 May 2012 and 1 June 2012 contributed significantly to the plaintiff's current mental state".

Report of Ms M Stephens

Ms Marie Stephens, a registered occupational therapist, provided a report dated 23 September 2016 which was admitted into evidence.
Ms Stephens had conducted an occupational therapy assessment at the plaintiff's home on 7 September 2016 which included an interview with the plaintiff and his partner Ms Stylianou.
Ms Stephens expressed the opinion that the plaintiff was currently experiencing limitations to his physical functioning as a result of the workplace accident including restricted movement and pain in his back and left leg, ongoing back and lower limb pain, reduced mobility and impaired functional abilities. Ms Stephens stated that the plaintiff was at the time of her report receiving approximately 6.25 hours of gratuitous care per week, predominantly provided by his partner, Ms Stylianou. In her report, Ms Stephens recommended that the plaintiff requires 11.75 hours of commercial care per week delivered by a combination of a personal care attendant and domestic assistance for shopping, heavy aspects of cleaning, laundry and bulk meal preparation and trades/handyman/commercial gardener services. She also made recommendations for equipment and other professional services.

Clinical notes

The plaintiff tendered a voluminous amount of clinical notes including from Dr Rhee, the plaintiff's previous general practitioner, Dr Anthony Gunn, psychologist, and from a physiotherapist. These were generally consistent with the plaintiff's claimed injuries. Dr Gunn's notes show the plaintiff suffering from psychological symptoms in 2010.
Some of the relevant medical notes and Centrelink medical certificates have been discussed above in relation to the evidence of Dr Rhee.
In the material there is a letter from Dr Gunn, psychologist, to the plaintiff's general practitioner, Dr Rhee dated 15 January 2010 which included the following: "Matthew said that he is currently suicidal and has attempted to take his life approximately six weeks ago by overdosing. Matthew said that he did not tell you that he has severe back pain caused by his previous work. He said that he has seen four other doctors and that they couldn't find anything wrong. Matthew also said that at times he can't walk and he appeared in considerable pain when I saw him today. Matthew said that he was really impressed with your care, though when I asked why he hadn't told you about his back problem he said that he was scared you wouldn't believe him. I have recommended he come back and see you again about his back. I wanted to make Matthew's back pain aware to you as I feel it's fuelling his suicidality."

Reports of Dr D Maxwell

The defendant relied on two reports from Dr David Maxwell, orthopaedic and spinal surgeon, dated 2 October 2014 and 27 January 2016. Dr Maxwell had examined the plaintiff on 2 October 2014 and 25 January 2016 for the purposes of preparing the medico-legal reports. A brief third report dated 30 November 2016 assessed the plaintiff as having 0% whole person impairment: Exhibit 14.
In his first report, Dr Maxwell noted a history from the plaintiff of back pain in 2008 which led to him being off work for two months. Dr Maxwell noted that medical records provided to him indicated a significant underlying psychiatric disorder prior to the alleged accident. Dr Williams noted that on the day he examined the plaintiff, the plaintiff complained of constant aching in the whole left leg radiating to the little toe of his foot together with back pain pointing to the L3/4 level as the site of his maximum pain.
Dr Maxwell reviewed a CT scan of the plaintiff's lumbar spine dated 28 August 2012 which he said was a normal examination. He also reviewed an MRI scan of the plaintiff's lumbar spine dated 21 January 2013. He said that despite the presence of some normal variants this was also a normal examination.
On examination, Dr Maxwell noted modified pain behaviour from the plaintiff.
Dr Maxwell expressed the opinion that the investigations were normal and the physical examination of the plaintiff was noted for conscious fabrication of the range of movement. He also noted other non-organic signs including extreme hypersensitivity to light palpation. Dr Maxwell said there was modified pain behaviour during the course of examination with sighing, grimacing and rapid intakes of breath. He concluded that there was no evidence that the plaintiff had sustained any pathological condition in the course of his work.
Dr Maxwell indicated that it appeared that the plaintiff had significant psychological problems and was currently at the time of his report also probably addicted to narcotic medication.
Dr Maxwell indicated that the investigations showed some normal variance of no clinical significance and there was certainly no objective signs of radiculopathy and the symptoms did not fit a radicular pattern. Dr Maxwell expressed the opinion that the plaintiff's back pain was a somatic manifestation of underlying depression and he did not consider that the plaintiff had any specific back injury. He said that further treatment of the injury was not indicated and he could find no pathological condition which would render the plaintiff unfit for work. Dr Maxwell said that he could see no reason why the plaintiff should have restrictions to his physical activity level and there was no pathological condition which would prevent him from carrying out physical work in the future including up to the age of 70.
Dr Maxwell disagreed that there was any need for domestic assistance or attendant care. He considered that the plaintiff did not require any domestic assistance in the future and he was able to perform all household activities.
Dr Maxwell's prognosis was that from his physical point of view the plaintiff's prognosis was excellent but guarded from the point of view of his personality disorder and depression.
Similar conclusions were reached in Dr Maxwell's second report dated 27 January 2016. Dr Maxwell indicated that the radiological investigations showed minor variations with no evidence of nerve root impingement and that the plaintiff's symptoms did not fit any pattern of disease or injury. He considered they were a reflection of the plaintiff's underlying psychological state. Dr Maxwell concluded as follows: "I consider the pre-existing conditions are more a reflection of his underlying psychological problems. He experiences somatic manifestations of his underlying depression and personality disorder which are contributing to his current conditions and disabilities. There is also evidence of conscious fabrication. … I do not consider there is any ongoing complaint of disabilities which can be attributed to the subject accident of 1 June 2012. I note there is no evidence of significant pathology in relation to his lumbar spine. … There is no evidence, radiological or otherwise to support his current complaints. … I have commented on the reports of Dr Bodel and consider there is no objective evidence of any L5 nerve root irritation. I do not agree with Dr Bodel's assessment that the incident on 1 June is the substantial contributing factor to his ongoing pathology and I do not consider ongoing physiotherapy, cognitive behavioural therapy or referral to an exercise physiologist is likely to make any different to his symptoms, nor to his function."

Reports of Dr V Casikar

The defendant tendered two reports of Dr V Casikar, neurosurgeon, dated 7 April 2014 and 12 January 2016. Dr Casikar had examined the plaintiff on 7 April 2014 and 11 January 2016.
In his first report, Dr Casikar indicated that the neurological examination he undertook in relation to the plaintiff was basically normal. He diagnosed pain syndrome in relation to the plaintiff. He expressed the opinion that the plaintiff's present symptoms were non-verifiable on neurological examination. He also stated that he believed his present pain syndrome was unrelated to his employment.
Dr Casikar noted that multiple MRI examinations have not shown any structural damage which would explain the plaintiff's symptoms. He expressed the opinion that the radiological material examined by him was consistent with the plaintiff's clinical presentation. He therefore believed that the plaintiff's work related injury had resolved and that his present symptoms were entirely due to his pain syndrome. He also indicated that the plaintiff's present symptoms were predominantly due to the degenerative disease of the lumbar spine and were significantly aggravated by his pain focussed personality. Dr Casikar expressed the opinion that the plaintiff did not require any treatment or surgery other than management of his pain syndrome. He expressed the view that the plaintiff should continue to see his psychologist and that the pain syndrome of the plaintiff was not as a consequence of his work related injury.
Dr Casikar indicated that in his opinion the plaintiff was fit to resume his pre-injury duties and that his clinical examination did not indicate any medical barrier to prevent the plaintiff's return to work. He indicated that in his view, the plaintiff was fit to work as a picker/packer without restrictions as he had fully recovered from the work related injury. He noted that the plaintiff had moderate degenerative disease of the lumbar spine which was a progressive feature which may require some further treatment many years later in his life due to the natural progression of the degenerative disease. He made clear that in his view the work related aggravation had ceased.
Dr Casikar expressly disagreed with Dr Bodel's reports where he indicated that the plaintiff had problems with self-care activities at home. He also expressed the opinion that the plaintiff did not require any domestic assistance in the future as a consequence of the work place injury. Dr Casikar's prognosis was as follows: "The prognosis as far as his work related injuries are concerned is very good because he has recovered fully from that incident. He does not have any verifiable neurological injuries. The various radiological examinations have not shown any structural damage to his spine which would explain his symptoms. However because of his significant pain focus personality, the prognosis is poor. Unless this problem is adequately corrected, it is very likely that Mr Williams will have difficulty in getting any kind of employment. … In my opinion Mr Williams probably had a minor work related injury from which he has recovered completely."
Similar views were expressed by Dr Casikar in his 12 January 2016 report in response to Dr Bodel's comments that there was a significant disc pathology in the lumbar sacral region causing nerve root irritability involving the L5 nerve root. Dr Casikar said that on his examination there was no evidence to suggest that the plaintiff had an L5 nerve root involvement. He indicated that in his view the plaintiff did not require physiotherapy or exercise physiology and that he also did not require any other form of treatment except management of his depression by a psychologist/psychiatrist.

Report of Dr B Teoh

The defendant relied on a report of Dr Ben Teoh, psychiatrist, dated 15 February 2016. The report indicated that the plaintiff had been examined by Dr Teoh on 4 April 2013 and re-examined on 9 February 2016.
Dr Teoh noted that when he examined the plaintiff on 9 February 2016, he reported persistent chronic pain affecting his lower back, radiating to his left leg. The plaintiff stated that he had started seeing a psychologist and had also been started on antidepressant medication by Professor Boesel. Dr Teoh noted that the plaintiff had been preoccupied with negative thoughts and concern about his future. He also noted that the plaintiff did not report to him his past psychiatric condition, although Dr Teoh appeared to be aware of the plaintiff's problems with depression in relation to employment issues in 2010.
Dr Teoh expressed the opinion that the plaintiff's presentation was not consistent with a psychiatric diagnosis. He stated that in his view the plaintiff had persistent emotional distress as a result of chronic pain and physical disability. He regarded his prognosis as largely dependent on the plaintiff's physical condition. Dr Teoh stated that he had reviewed the report of Dr Allnutt, psychiatrist, dated 2 March 2015 and observed that the history that Dr Allnutt obtained from the plaintiff was not consistent with the history obtained by Dr Teoh.
An earlier report of Dr Teoh dated 15 April 2013 concluded that in Dr Teoh's opinion the plaintiff was not suffering from a recognisable psychiatric diagnosis or mental condition. What the plaintiff had described to Dr Teoh in his examination conducted on 4 April 2013 was emotional distress as a result of his physical pain and disability. However, in Dr Teoh's opinion, these symptoms are not indicative of a psychiatric disorder.

Report of Ms M King

The defendant relied on a report of Ms Michelle King, occupational therapist, dated 31 October 2016.
Ms King undertook a review of the plaintiff at his North Richmond home on 19 October 2016. Ms King concluded as follows: "Mr Williams presents with chronic pain with physical and psychological features. He appears to be caught in a cycle of pain, decreased activity and increasing disability. His passive approach to the management of pain and avoidance of activity is counter productive and contributes to increased disability. Soft tissue injury could generally be expected to resolve by six weeks with recovery of function within 13 weeks. However, as noted, medical consensus indicates a pre-existing back condition contributes to his current presentation. For the purposes of this report, based on the evidence currently available, it is assumed that Mr Williams' pre-existing chronic back condition is the major reason for his current capacity. I would rely on medical opinion to determine the apportionment of pre/co-morbidities to Mr Williams' current impairment and capacity."
Based on the opinion of Dr Casikar that the plaintiff's injury was musculo-ligamentous and would have resolved over a period of six weeks, Ms King concluded that domestic assistance for a total of six hours being for one hour per week for six weeks post-injury was justified. Ms King also expressed the following opinion: "Mr Williams would benefit from occupational therapy and reconditioning as well as significant psychological input, however it is questionable whether the need for this is due to injuries sustained in the subject incident or longstanding history of back pain, mental health and function deconditioning. At this time future care cannot reasonably be supported on the basis of available evidence of injury confirmed as arising from the subject accident."

Clinical notes and employment records

The defendant tendered a voluminous bundle of additional medical notes and employment records.
It is unnecessary for the purposes of this judgment to set out these documents in detail. However the following more significant documents were noted: 1. By letter dated 13 May 2008 the plaintiff was offered employment with Ceva Logistics (Australia) Pty Ltd. The plaintiff accepted the offer of employment by signing the letter on 21 May 2008. The employment was to commence on 19 May 2008; 2. In February 2009 Ceva Logistics notified QBE Insurance of a complaint of back pain by the plaintiff. The injury was described as "lower back pain - unsure of exact injury date - gradual over 5 months"; 3. On 13 February 2009 Dr Stephen Woolnough signed a fitness for duties assessment in relation to the plaintiff indicating that the plaintiff was fit for duties at Ceva Erskine Park with the following restrictions: "20kg lifting limit. Minimum times/frequency spent bending forward & lifting"; 4. A WorkCover New South Wales medical certificate was signed by Dr Peter Reiter on 23 February 2009 diagnosing low back strain for the plaintiff from repetitive lifting at work with the injury being symptomatic for the past five months. The document was apparently signed by the plaintiff confirming that the information he had given was correct. The plaintiff's occupation was noted as a packer/forklift driver; 5. An employer injury claim report for workers compensation was signed by Ms S Kent, the Business Manager of Ceva Logistics on 23 February 2009 in relation to the plaintiff. The injury referred to was a back condition and the following was stated: "This has occurred over a period of time due to picking and leaning over pallets"; 6. A Ceva return to work plan dated 25 February 2009 in relation to the plaintiff stated that the plaintiff had an injury symptomatic for the past five months. A 5kg lifting restriction was referred to and the specific duties to be avoided were "heavy picking - Coke". The document was signed by various persons including the plaintiff. The document indicated that the plaintiff was to participate in physiotherapy sessions, at least twice a week for eight sessions; 7. A WorkCover New South Wales medical certificate indicated that the plaintiff had low back strain and was unfit for work from 27 February 2009 to 9 March 2009 inclusive; 8. A further WorkCover New South Wales medical certificate dated 27 March 2009 indicated that the plaintiff was unfit to work from 28 March 2009 to 14 April 2009 due to low back strain. A further medical certificate dated 22 April 2009 indicated that the plaintiff was unfit to work from 14 April 2009 to 26 April 2009 but was fit for pre-injury duties from 27 April 2009 due to low back strain; 9. QBE accepted liability for the plaintiff's workers compensation claim by letter dated 24 April 2009 to the plaintiff; 10. A WorkCover New South Wales medical certificate dated 3 November 2009 of Dr Stephen Woolnough indicated that the plaintiff was fit for restricted duties for a week from 3 November to 10 November 2009. This was due to low back pain and involved lifting limitations; 11. A further medical certificate dated 9 November 2009 from Dr Foo placed the plaintiff on restricted duties due to low back pain from 9 November to 11 November 2009; 12. The documents included a Notice of Termination checklist suggesting that the plaintiff had abandoned his work at Ceva Logistics on 17 November 2009. A letter from Ceva Logistics to the plaintiff dated 23 November 2009 stated that the plaintiff had been absent from his workplace since 18 November 2009; 13. In a statement of the plaintiff dated 29 October 2015 which was in evidence the plaintiff stated as follows: "I did sustain back strain on 3/11/2009 when working with Ceva Logistics. I recovered fully from that strain within a few months and returned to pre-injury duties." 1. This seems to be incorrect as the plaintiff left Ceva Logistics in mid-November 2009; 2. Exhibit 4 was an initial notification of injury form by Ceva Logistics to QBE Insurance apparently received on 5 November 2009 which referred to an injury to the plaintiff on 3 November 2009 with the description: "Re aggravated old back injury".
The defendant relies on the histories provided by the plaintiff to treating medical practitioners in the 2008-2012 period and to doctors for the purposes of medico-legal reports as establishing that the plaintiff had significant back and depressive illness problems in the period 2008-2012.
Some caution should be exercised in placing too much weight on the histories set out in medical notes and reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144]. The medical reports and notes relied on by the plaintiff and the defendant in the present case were all admitted without objection and no limiting order was sought under Section 136 of the Evidence Act. Accordingly, pursuant to Section 60 of the Evidence Act the histories set out in the admitted medical reports are admissible as the truth of the facts set out in them: see the comments of Bergin CJ in Equity in Ceva, above, at [142]-[143].
In my view some weight may be placed on the medical notes and the various medical certificates provided in relation to the plaintiff as: 1. There was no issue that the plaintiff had some medical condition in relation to his back in 2008-2009. The plaintiff himself confirmed this but said this was not significant; 2. There was no issue that the plaintiff suffered from depression at various times in the period 2009-2010; 3. The plaintiff's general practitioner, Dr Rhee, was cross-examined in relation to his notes and the Centrelink medical certificates which he completed, although he had no independent recollection of the various consultations; 4. The medical notes include the prescription by the doctors of various medications. Dr Rhee gave evidence as to the purposes for which such medication was in his practice prescribed.

Expert conclave report - Dr S Allnutt/Dr B Teoh

Exhibit 6 in the proceedings was a conclave report dated 4 November 2016 of Dr Stephen Allnutt and Dr Ben Teoh, psychiatrists, whose reports have already been referred to above. The substantial differences between the two psychiatrists in relation to the plaintiff's diagnosis were equally apparent in the conclave report. However, some commonality was achieved.
A summary of the opinions of the two psychiatrists is as follows: 1. Both Dr Allnutt and Dr Teoh agreed that the plaintiff had a vulnerability to depression based on his pre-injury history; 2. The two doctors were unable to provide an opinion on whether pre-accident depression was ongoing as at the date of the accident because the plaintiff denied symptoms of pre-accident depression. Dr Allnutt believed that the accident of 1 June 2012 triggered the onset of a constellation of depressive symptoms. Dr Teoh did not believe the accident of 1 June 2012 was relevant because his opinion was that the plaintiff did not have a psychiatric diagnosis related to the accident; 3. In relation to the plaintiff's current condition, Dr Teoh believed that the plaintiff was experiencing emotional stress symptoms as a result of chronic pain which was characterised by the plaintiff feeling upset, being negative and irritable but the symptoms did not meet the criteria for a diagnosable psychiatric condition. Dr Allnutt had the opinion that the plaintiff manifested a psychological reaction to the accident and that because of the number of depressive and anxiety symptoms which the plaintiff had, he had a persistent depressive disorder with a differential diagnosis of adjustment disorder. Dr Allnutt expressed the opinion that the plaintiff's associated panic attacks denoted a degree of severity; 4. Dr Allnutt believed the plaintiff's psychiatric condition was of mild to moderate severity given his reported functional impairments. Dr Teoh did not believe the plaintiff had a psychiatric condition; 5. Dr Allnutt believed that the psychiatric condition had the effect of the plaintiff attending to his activities of daily living less through being socially withdrawn and decreased socialisation. Dr Teoh did not believe this was relevant because the plaintiff did not have a psychiatric condition; 6. In Dr Allnutt's view, the accident caused a persistent depressive disorder but noted that the plaintiff did have a predisposition to depression. Dr Allnutt also believed that as long as the plaintiff remained distressed about his perception of his physical condition and the associated social stressors, the plaintiff would continue to experience impairments. Dr Allnutt believed that the effects of the psychiatric condition the plaintiff had were ongoing; 7. Dr Teoh thought that the plaintiff did not require referral for psychological counselling or psychiatric treatment, although he believed that the plaintiff could benefit from pain management. Dr Allnutt was of the opinion that follow up with a psychiatrist and cognitive behavioural therapy with a psychologist was warranted. He also expressed the opinion that the plaintiff would benefit from engaging in a pain management programme and that antidepressant medication was required; 8. Dr Allnutt believed that the plaintiff had an incapacity for work as a result of his depressive and anxiety symptoms. A contrary view was held by Dr Teoh because he did not believe the plaintiff had a psychiatric condition. Dr Allnutt believed that the plaintiff had a partial impairment for the period of 1 June 2012 to date from a psychiatric perspective. Dr Teoh did not agree with this because he did not believe the plaintiff had a psychiatric condition; 9. Dr Allnutt believed that the plaintiff's capacity for employment on the open labour market was compromised because of his psychiatric condition. Dr Teoh did not believe that the plaintiff had a psychiatric condition. Dr Allnutt also believed that the plaintiff's psychiatric disabilities impacted on his capacity for employment.

Conclave report - Drs D Maxwell/V Casikar/G Bodel

Exhibit 5 in the proceedings was a joint conclave report of Drs Maxwell, Casikar and Bodel dated 7 October 2016. It will be recalled that Dr Bodel was the plaintiff's primary medico-legal orthopaedic expert for the purposes of the proceedings.
The conclave report produced a significant degree of agreement between the three medical experts.
Reference was made in the conclave report to the particular of injury in the Amended Statement of Claim of "radiculopathy". The following was stated: "Dr Casikar and Dr Maxwell both agree that there is no objective evidence in relation to his symptoms, the clinical signs and the investigations which indicate that he has suffered or continues to suffer radiculopathy. Dr Bodel disagreed to a certain extent. He considered when he saw Mr Williams approximately 18 months ago that he did feel he had signs of mild L5 radiculopathy. He considered this was somewhat intermittent."
The three doctors considered the particulars of continuing disabilities in the conclave report to the following effect.

Pain and restriction of movement of the back

The three doctors noted that the reported restriction of movement in the plaintiff was not consistent and could not be objectively measured. The three doctors also noted that prior to the alleged accident the plaintiff also reported pain and restriction of movement in his back.

Continuing pain in the left leg

Drs Maxwell and Casikar suggested there was no evidence of radiculopathy. They therefore felt that any subjective experience of pain by the plaintiff in his left leg was not due to nerve root impingement. Dr Bodel was of the opinion that there may have been mild L5 radicular symptoms because when he examined the plaintiff approximately 18 months ago there were some weak radicular signs.

Numbness in the buttocks and thighs

The three doctors agreed there was no objective evidence that the plaintiff has any pathological cause for the numbness in the buttocks and thighs in relation to the subject accident.

Altered gait

The three doctors all agreed that when they examined the plaintiff there was no evidence of an altered gait. As the plaintiff did not have an altered gait there was no evidence that he had any injury which would cause a resultant strain and disturbance to the joints in his back or left leg.

Restriction of ability to traverse steps

The three doctors agreed that there was no pathological lesion which would cause difficulty in the plaintiff's ability to traverse steps.

Restriction in ability to walk

The three doctors agreed there was no current pathological cause to explain the plaintiff's suggestion that he experiences weakness in his left leg when he walks.

Restriction in ability to traverse rough or uneven ground

The three doctors agreed that this was subjective and they did not consider there was any pathological lesion which would make it difficult for the plaintiff to traverse rough or uneven ground.

Restriction in ability to run

The three doctors agreed there was no pathological reason why the plaintiff could not run. They also agreed that the plaintiff was physically unfit.

Restriction in mobility and a risk of further falling with additional injury being occasioned

The three doctors agreed that any falls reported would not be due to a neurological lesion caused by the subject accident.

Restriction in ability to lift, carry, stand or lie down

The three doctors agreed these symptoms are subjective and they did not consider there was any physical or pathological reason why the plaintiff could not lift, carry, stand or lie down.

Sleep disturbance

The three doctors all agreed that they did not consider there was any pathological lesion in relation to the plaintiff's lumbar spine which would cause sleep disturbance. They also noted that sleep disturbance was a common symptom of depression. There was agreement there was no physical reason why Mr Williams could not sleep.

Difficulty sitting

The three doctors agreed they did not consider the plaintiff would have had any difficulty sitting because of any pathological lesion. They also all agreed that there was evidence the plaintiff could sit for a longer period than 15 minutes as shown during their consultations.

Walking with a limp

The three doctors agreed they did not consider the plaintiff was walking with a limp or there was any pathological lesion which would cause him to limp.

Wasting of the left calf

Dr Casikar and Dr Maxwell noted when they measured the plaintiff's left calf it was the same size as the right calf, whereas Dr Bodel had noted mild left calf muscle wasting.

Reduced ability to engage in pre-injury social and recreational pursuits

The three doctors agreed these reported reductions in physical activity levels are subjective and there was no reduced capacity as a result of any pathological lesion caused by the work related accident.

Difficulties with performing household chores and duties

The three doctors agreed there was no neurological or other pathological lesion which would cause difficulty in the plaintiff performing household chores and duties.

Reduced enjoyment of life

The three doctors agreed there was no evidence the subject accident has caused reduced enjoyment of life in the plaintiff.

Reduced work capacity

Drs Casikar and Maxwell considered there was no reduction in the plaintiff's work capacity as a result of any pathological lesion caused by the accident in 2012. Dr Bodel disagreed in part. He considered there may be a slight reduced work capacity as a result of the subject incident in 2012. However, the three doctors agreed the plaintiff currently has full capacity for employment without restrictions.

Anxiety and stress

The three doctors agreed the plaintiff was suffering psychological symptoms prior to the subject accident.
Drs Casikar and Maxwell did not consider the plaintiff's claimed symptoms or signs were caused by the accident. The report vaguely added Dr Bodel felt there may have been a partial effect on the plaintiff's symptoms from the work accident of 1 June 2012. The three doctors did not consider there was any specific accident which caused the plaintiff's symptoms. However Dr Bodel felt the action of lifting may have caused some lower back pathology.
While Drs Casikar and Maxwell did not consider any of the alleged symptoms, physical signs and disabilities alleged in the Amended Statement of Particulars were caused by any work related incident on 1 June 2012, Dr Bodel felt the continuing pain in the left leg "may" have been a sign of radiculopathy and he felt this may have been caused by the subject accident.
Drs Casikar and Maxwell in the joint conclave report did not consider the plaintiff continues to experience any symptoms attributable to any injuries sustained as a result of the accident. Both doctors did not consider there was any evidence of radiculopathy and that the radiological investigations were essentially normal. They were of the view there was no consistent or radiological evidence of radiculopathy. Dr Bodel partly disagreed. He considered it is possible the plaintiff may have sustained an injury to the L5 nerve root.
Drs Casikar and Maxwell considered any work related injury secondary to a back sprain would have resolved within four weeks being the normal time it takes for pain from a lumbar sprain to resolve. Dr Bodel felt the plaintiff had signs of continuing radiculopathy 18 months ago when he examined him.
In relation to continuing disabilities, both Drs Casikar and Maxwell did not consider the plaintiff continues to experience any disabilities attributable to the accident as he does not have any objective evidence of a pathological lesion of his lumbar spine. They did not consider the radiological evidence established the plaintiff had any specific pathological lesion which would prevent him from carrying out physical activities including personal care activities and home duties.
Dr Bodel on the other hand suggested that when he examined the plaintiff he felt he had some clinical signs of L5 radiculopathy. However the last examination by Dr Bodel was some 18 months ago.
While Drs Casikar and Maxwell considered any disability would have resolved four weeks after the subject incident, Dr Bodel felt the plaintiff may have had some continuing mild disability because of some L5 radiculopathy.
The radiological investigations shown to the three doctors led them to all agree that none of the investigations were consistent with any specific injury or disability alleged to be caused by the subject accident. In particular they agreed there was no objective evidence of L5 nerve root impingement on any of the investigations. All three surgeons indicated that the diagnosis of disc bulging noted on some of the investigations was not significant in the case because the disc bulges were not large enough to cause any nerve root impingement and these were normal variants.
The three doctors all agreed the plaintiff did not need any medical treatment in relation to any physical or pathological condition although he may need psychological treatment for his underlying depression which was not related to any work accident.
In relation to future employment prospects all three doctors agreed this would depend on the plaintiff's own volition as the plaintiff was quite fit from a physical point of view to undertake any employment without restrictions and that physical activity would be beneficial for him. All three doctors agreed it was unlikely that the plaintiff suffered any significant incapacity for work given the fact that after he complained of back pain he did work for approximately two days before being certified unfit for work. The three doctors considered the plaintiff may have been unfit for work as a picker and packer for approximately 1-2 days and after that they considered he would have been fit to return to work as a picker and packer. All three doctors agreed that the plaintiff had full capacity for employment without restrictions. They also considered he should be able to exercise his capacity for employment until normal retirement age on a fulltime basis.
All three doctors considered that the plaintiff did not have any requirement for domestic care or assistance from 1 June 2012 until the date of their report. They all agreed the plaintiff should be encouraged to carry out all domestic care and personal activities. Similarly all three doctors agreed there was no evidence the plaintiff needed domestic care assistance in the future in relation to the accident. The doctors specifically stated the accident on 1 June 2012 did not cause any need for domestic care and assistance in the future.
In relation to a joint diagnosis, the three doctors agreed that they did not have a physical diagnosis and did not consider there was any evidence the plaintiff had any pathological condition to support his claim of back pain. They all agreed the prognosis from a physical point of view for the plaintiff was good. However Dr Bodel suggested that when he examined the plaintiff 18 months ago there was a suggestion he may have had intermittent L5 radiculopathy based on his examination.
All three doctors considered there was no indication for epidural injections, a multidisciplinary pain programme, surgery, radiological investigations, specialist review, physiotherapy, exercise physiology or increased general practitioner consultation as a result of the subject accident. All doctors also agreed the plaintiff should cease taking medication apart from an antidepressant which in their view was not related to the subject accident.
The conclave report is significant as showing substantial agreement between the three surgeons in relation to the plaintiff's disabilities, prognosis and ongoing needs. Dr Bodel had not seen the plaintiff for 18 months. The difference between the doctors was that Dr Bodel considered that when he saw the plaintiff 18 months ago he had signs of mild L5 radiculopathy which was somewhat intermittent.

Analysis of the medical evidence

The evidence shows that the plaintiff complained on two separate occasions of lower back pain in 2008 and 2009. The Ceva Logistics initial notification of injury form (Exhibit 3, pages 404-405) (it appears dated February 2009) suggests that the plaintiff was complaining of lower back pain which had gradually increased over the previous five months from about August 2008. Medical records also show the plaintiff complaining of lower back pain in February 2009 which led to lifting limits at work being certified and the plaintiff having time off work in the period from February-April 2009. The condition was said by the plaintiff to be painful and continuing: see T142.37.
Radiological investigations in the form of a CT and an MRI in March 2009 disclosed no abnormality in the plaintiff's back. A report of Dr P Holman, orthopaedic surgeon, dated 8 April 2009 concluded that the plaintiff sustained a chronic musculo-ligamentous strain to his lumbar spine as a result of repetitive lifting while in a bent position while working for Ceva Logistics but there was no evidence of ongoing injury on physical examination. The plaintiff returned to work until he claimed further back pain in November 2009 which did not lead to a further workers compensation claim. He left Ceva Logistics soon after.
The cross-examination of Dr Rhee in relation to his notes and in particular in relation to Dr Rhee's medical certificates dated 19 February 2010, 7 May 2010 and 23 January 2012 (Exhibit A, pages 329-331) established in my opinion that the plaintiff's existing back problems had resolved by early 2010. If they had continued after this date I think it likely that there would be more medical notes on the issue. In coming to this conclusion I take into account the possibility that the 23 January 2012 medical certificate signed by Dr Rhee (Exhibit A, page 331) was as a result of the plaintiff informing Dr Rhee of continuing chronic back pain and constituted Dr Rhee's note on the issue. This certificate refers to the chronic back pain as being "temporary" which was different to the earlier certificates in any case. I also take into account Dr Gunn's letter to Dr Rhee dated 15 January 2010 (Exhibit A, page 317). On all the evidence, it seems to me and I find that the plaintiff's back condition had resolved by early 2010: see the plaintiff's primary submissions at [29]-[33]. This is consistent with the plaintiff riding "dirt bikes" for recreation at the time: T228.43.
Relevant to this conclusion are the CT scan dated 3 March 2009 (Exhibit 3, page 422) and the MRI scan dated 26 March 2009 (Exhibit 3, page 426) which are normal. These suggest that as those dates the plaintiff did not have any radiculopathy as opposed to only a musculo-ligamentous strain.
There remains the possibility that the plaintiff could have injured his back further whilst working at Ceva Logistics having regard to the November 2009 initial notification of injury form, but I do not think this is established on the evidence. First, there is no other clear evidence of the plaintiff complaining of back pain requiring radiological investigation after November 2009 and secondly, the plaintiff worked for several months in 2010-11 as a picker/packer and at the defendant's premises from late February 2012 until late May 2012, apparently without problems. If the plaintiff had suffered a serious back injury in the period from March 2009 to February 2012 it is unlikely that the plaintiff would have been able to work apparently satisfactorily in 2010-11 and at the defendant's premises for three months before the alleged injury.
Taking all of these matters into account it seems and I find on the balance of probabilities that the plaintiff's back injury had resolved by the time he started work for the defendant in late February 2012. I accept the plaintiff's written submissions on this issue: plaintiff's reply submissions at [8].
The plaintiff's 2009 CT scan and MRI reports which showed a normal lumbo-sacral spine should be compared to those reports undertaken in 2012-2014. According to Dr Bodel the following was shown on the radiological evidence: 1. MRI scan of the lumbo-sacral spine dated 16 July 2012 - minor bulging at the L4/L5 level; 2. MRI scan dated 21 January 2013 showing a left sided disc injury at the L4/L5 level; 3. Upright MRI scan of the lumbo-sacral spine dated 1 December 2014 showing "a small bilateral left L3/4 disc herniation with a small herniation at the L4/5 level, particularly in the standing view, and some minor dehydration at L5/S1. There is a small annular tear at the L5/S1 level".
There is thus a radiological difference between the reports concerning the plaintiff's back before and after the accident.
The joint conclave report of Drs Maxwell, Casikar and Bodel is obviously highly relevant. Drs Casikar and Maxwell were of the opinion that the radiological investigations showed that the plaintiff did not suffer or continue to suffer radiculopathy. However, Dr Bodel considered that when he saw the plaintiff approximately 18 months ago (May 2015) that he did feel he had signs of mild and intermittent L5 radiculopathy. All three doctors agreed that there was no objective evidence of L5 nerve root impingement in any of the investigations. The view is expressed that the disc bulges were not large enough to cause any root impingement and were normal variants.
I have to take into account the plaintiff's presentation, his evidence of his continuing disabilities and the evidence of his de facto partner Ms Stylianou.
The plaintiff appeared to me somewhat inconsistent with his presentation in court. He was able to give evidence for fairly lengthy periods seated whilst on occasions standing. He frequently grimaced with pain but generally had no apparent trouble dealing with questioning except on one occasion when his questioning was adjourned for a lengthy period.
However, the evidence of Ms Stylianou impressed me. She appeared to me to be a completely frank and honest witness. It seems inconceivable that the plaintiff would be able to portray a picture of serious disability to her over a period of a number of years unless there was some objective basis for problems with his lower back or he was suffering from a fairly serious pain syndrome.
Taking all of the evidence into account, I find that the plaintiff did suffer a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue injury and ongoing pain to the plaintiff of an intermittent type. I prefer the opinion of Dr Bodel in this regard to that of Dr Maxwell and Dr Casikar as it is consistent with the radiological evidence, the plaintiff's presentation and importantly Ms Stylianou's evidence. I accept the plaintiff has had some continuing modest back problems although not to the extent to which he claims. I also accept the evidence of Ms Stylianou that the plaintiff has displayed to her ongoing back pain and restrictions which are unlikely to have been portrayed falsely by him over such a lengthy period.
However, I also accept the substance of the joint conclave report dated 7 October 2016 that the plaintiff's problems in his back do not involve an injury to the L5 nerve root and if they exist (Dr Bodel) were of a reasonably mild nature. I also accept the conclave report where the three doctors agreed that as at the date of their joint report the plaintiff has full capacity for employment without restrictions (although this seems slightly inconsistent with the opinion of Dr Bodel expressed on page three of the report). This conclusion is obviously relevant to the assessment of damages issue. I reject the plaintiff's contrary written submissions: plaintiff's primary submissions paragraphs 52, 58-59; reply submissions paragraph 25.
A difficult issue is the allegation of psychiatric injury. The plaintiff's presentation in court was of a person who was intelligent, ordered in his thoughts and able to deal with extensive cross-examination over a number of days. The plaintiff expressly denied that he had psychiatric problems towards the end of his cross-examination: T515.5. However, the plaintiff also appeared very sorry for himself due to his pain and restrictions. I take into account that the plaintiff complained of pain and sought adjournments on a number of occasions because of it.
I also am of the view that the medical material in evidence shows that the plaintiff suffered serious depression problems in 2009-10 and attempted suicide on at least one occasion. The prescription of Pristiq by Dr Rhee in 2011 suggests ongoing depression problems. The plaintiff denied taking anti depression medication at the time he started with the defendant: T122.33. However, Dr Rhee's third medical certificate in January 2012 suggests further depression problems.
Having reviewed the reports of Dr Allnutt and Dr Teoh carefully, and considering the earlier medical evidence, I prefer the view of Dr Allnutt that the plaintiff does have a psychiatric condition arising from the accident being a persistent depressive disorder with a differential diagnosis of adjustment disorder. I also find that the plaintiff requires pain management, a view which was common to Dr Allnutt and Dr Teoh. In the end I reject Dr Teoh's opinion on page 2 of the conclave psychiatric report that although the plaintiff was experiencing emotional stress symptoms as a result of chronic pain characterised by feeling upset, being negative and irritable, he did not display psychiatric symptoms to the extent that he would meet criteria for a diagnosable psychiatric condition.
This conclusion is assisted by the opinions of Drs Maxwell/Casikar and Bodel in relation to the relatively mild nature of the plaintiff's back injury.
The plaintiff's presentation and pain can therefore be put down to: 1. Conscious exaggeration by him; 2. Depressive illness with a pain syndrome; or 3. Depressive illness arising from a limited back injury and a pain syndrome.
Having regard to the plaintiff's presentation, Dr Bodel's reports, Dr Allnutt's reports, the conclave psychiatric report, the conclave orthopaedic report, the evidence of Ms Stylianou and the plaintiff's depression in 2009-2012, I consider it likely and I find that the plaintiff continues to suffer from depression arising from a limited back injury and a pain syndrome. As the medical material does not suggest debilitating depression when the plaintiff started work for the defendant, and he appeared initially able to perform his duties for the defendant, I find that the current psychiatric condition of the plaintiff arose from and was caused by the back injuries received in the accident on 1 June 2012. Clearly, however, the plaintiff was prone to depression as his history from 2009-2012 makes clear. I accept Dr Allnutt's view in the conclave report that the plaintiff's current condition was of mild to moderate severity. I also accept Dr Allnutt's recommendations for treatment on page 4, answer 7, of the conclave report. Having regard to the plaintiff's limited back condition as I have found, ongoing treatment of his depression is called for over a period of six months to a year. This may lead to positive results although the result is uncertain.
Accordingly, the medical evidence establishes in my view that the plaintiff had a relatively mild back injury with signs of intermittent and mild L5 radiculopathy in accordance with Dr Bodel's opinion up to 2015 which does not affect his work capacity now. The plaintiff also has a depressive illness arising from the accident of a mild to moderate severity which requires treatment and does affect his work capacity.

Liability expert evidence

Each of the parties retained an occupational health and safety expert who also had expertise in ergonomics. These experts, Dr Fairfax and Ms Aickin, prepared two reports each. A conclave expert report was also prepared.
These expert reports are extensive and include a number of appendices. It is unnecessary for the purpose of these reasons to set out the opinions in the reports in detail.
The reports' conclusions can be generally summarised as follows: 1. The defendant's expert, Dr Fairfax, expressed the opinion that the workplace system and procedures adopted by the defendant, Metcash, at the relevant time were reasonable and avoided unnecessary risks of injury; 2. The plaintiff's expert, Ms Aickin, concluded that the defendant's system of work in place in June 2012 created risks of injury which could have been readily limited. Ms Aickin proposed a number of alternatives which could reasonably have been taken by the defendant including raising the shelf height where heavier goods such as soft drink and dog food were stored, having devices which could raise the height of pallets holding heavier goods for easy access, having rotating shelves to allow access to stock at the back of a pallet and reversing half empty pallets to allow easier access for workers to goods at the back of the pallet by moving them to the front of the pallet; 3. Both experts were of the view that the plaintiff lifting two boxes of dog food together each weighing approximately 16kg was unsafe and created a real risk of injury to him.
Both experts also accepted that an employer in the position of the defendant at the time had to take into account workers who were six feet tall, like the plaintiff, in creating a safe system of work: T 569.4.
Dr Fairfax, the defendant's expert, accepted in her oral evidence that heavy product such as dog food placed in a shelf which was 1.4 metres in height presented an issue for an average male worker as that height was about shoulder height on a male and required a male to bend under the shelf to obtain access to dog food on the shelf where a pallet of dog food was partly empty and boxes were only towards the back of the pallet. Dr Fairfax agreed that this created a greater risk for a picker but was of the view that a picker could still undertake safe lifting practices with a straight back in lifting and removing cartons of dog food in that location.
One issue for Dr Fairfax which in my view made her report somewhat less valuable was that she did not inspect the defendant's premises immediately prior to preparing her report but relied on a prior inspection by her of the premises in (she thought) about 2011 where she inspected the premises for the purposes of another workplace injury where a worker had been injured lifting a box of alcoholic drink: Exhibit 3, page 5; T 551.23-552.77. It was somewhat unclear on the evidence whether this inspection was of the defendant's previous premises at Blacktown or the defendant's current premises the subject of the proceedings: cf T 551.43. There was no evidence that Dr Fairfax had inspected slots in about 2011 where dog food was stored. However, she had access to photographs which appeared in her report and she had prior experience inspecting other similar warehouses where dry goods were stored: T 552.6.
Ms Aickin, on the other hand, had inspected the defendant's premises for the purposes of preparing her report.
In her report, Ms Aickin set out a number of matters which she says should have been considered and then implemented by the defendant "to reduce, if not eliminate, the risk of manual handling injury": Exhibit A, page 168. In cross-examination, Ms Aickin accepted that even if these measures had been introduced they would only have significantly reduced but not eliminated the risk of injury to the plaintiff: T 598.14-598.23. The matters relied upon by Ms Aickin in her first report are as follows: "• Ensure that the pick rate is evaluated properly and correctly to reduce the pressure on pickers and packers to pick fast to achieve their targets; • Ensure that workers do not pick heavy product for an entire shift; • Store heavy items such as dog food in an area where packs can be accessed between the knees and the shoulders; or • Review the height of the first level of shelving of heavy product and raise it to reduce the risk of injury from sustained and repetitive bending under it for taller workers; and • Raise the level of the pallet at ground level to reduce the risk of injury from deep repetitive bending to lift heavy product; • Provide turn tables so that items can be picked from the front of the pick space as the pallet is picked down; or • Rotate pallets using a forklift so that items can be picked from the front of the pick space as the pallet is picked down; • Ensure that headsets are in good working order so that picking and packing can proceed without interruption, facilitating the pick rate; • Ensure that scanners are in good working order so that picking and packing can proceed without interruption, facilitating the pick rate; • Ensure that electric pallet jacks are in good working order so that picking and packing can proceed without interruption, facilitating the pick rate; • Provide IGA Warehouse supervision to ensure that labour hire picker and packers lift only one carton or pack at a time. Work may be required to identify which cartons and packs must be lifted only one at a time; • Train labour hire employees in the Metcash Trading Limited trading as IGA Warehouse manual handling hazard identification, hazard and work-related symptom reporting along with the specific manual handling skills relevant to the Metcash Trading Limited work; • Encourage labour hire employees to report manual handling hazards and work-related symptoms to the IGA Warehouse supervisor/s; • Train the IGA Warehouse supervisor/s to appropriately address hazard and symptom reporting by labour hire employees and to identify hazards; and • Fully implement an IGA Warehouse manual handling risk management system in the warehouse with the first risk assessments being picking dog food and soft drinks."
I am satisfied from all the evidence that there were no issues relevant to these proceedings in relation to headsets, scanners and electric pallet jacks not being in good working order so these matters may be put to one side.
In relation to installing a device to raise the level of the pallet holding heavier goods to allow lifting at waist level or providing turntables or rotating pallets I am satisfied that there was no satisfactory evidence that these were reasonably required alternatives. Ms Aickin conceded that rotating pallets would create more forklift traffic which could have created additional risks and she had not costed a pallet raising machine or a turntable. Ms Aickin also accepted that these would require remodelling of the defendant's existing aisles: see T 594.45-596.28.
I note Dr Fairfax's responses on these matters which I prefer: see Exhibit 3, pages 50-53.
It will be recalled that Mr Roberts, a senior officer at the defendant, gave evidence that self-raising platforms, and turntables were not feasible: T 54-55.
The main areas of dispute between the experts accordingly focussed on: 1. The storage of dog food in areas where there could be easier access to workers due to the height of shelving; and 2. Providing appropriate supervision to ensure that labour hire pickers and packers lifted only one carton or pack of dog food at a time.
In relation to the last point, Ms Aickin accepted that providing supervisors who regularly supervise workers' lifting practices was a sensible and reasonable approach for an employer to adopt: T 597.25; T 590.21.
In relation to the height of the shelving and the worker's task, Ms Aickin said the following matters were relevant to consider: 1. The repetitive cycle of the task as opposed to the weights of each item lifted. Ms Aickin said the weights of each carton lifted can be less significant in terms of risk than the repetitive nature of the task and the peak loads involved in the lift (such as lifting two or three boxes of dog food at a time): T 574.17; 2. Lifting two to three cartons of dog food at a time in the one lift created a high risk of injury: T 572.13; T 579.34. Dr Fairfax had a similar view: T 571.28; 3. The risk of injury was present regardless of the distance which two cartons of dog food were lifted with arms stretched out from the body: T 579.40; 4. Such an extreme or high risk of injury was present regardless of whether the two boxes were lifted at waist height, chest height or a lower height: T 580.18-581.46; 5. Ms Aickin accepted that manual handling in a warehouse like the defendant's was a part of life; 6. It was reasonable for an employer to rely on a WorkCover inspection report and that a WorkCover inspection which provided the "all clear" would be comforting to an employer: T 587.39; 7. Prior back injury for a worker was relevant to an employer but Ms Aickin understood this was limited to a disk injury or spondyloslisthesis: T 588.22; 8. Her recommendation to review the height of the shelving was because of a worker bending and reaching for a product and exiting the pick slot walking backwards without hitting their head and holding the product in a bent position. Increasing the shelf height would, in Ms Aickin's opinion, reduce the risk factors as a worker would have to stoop less. Ms Aickin regarded the need to lean forward and bend as being present for the removal of all boxes of dog food in a 1.4 metre high shelf. She also indicated that the further a worker had to bend down, the higher the risk. Ms Aickin accepted that increasing the shelf height did not eliminate the risk but only reduced it: T 593.18-594.28; 9. Ms Aickin was asked about a worker dragging a dog food box towards them before lifting where there were few boxes left on a pallet. Ms Aickin said the impact of friction would need to be taken into account but it was a theoretically available option if friction did not provide undue resistance and did not unduly slow down the picking procedure. She indicated, however, that her experience was that pickers rarely used a case hook to assist in the drawing of a product towards them as time was taken to collect the hook and it was quicker for the worker to remove the product without using it: T 599.31-600.11.
The information which the plaintiff gave to Ms Aickin for the purposes of preparing her first report was inconsistent with some of the plaintiff's evidence in the proceedings and other evidence which was tendered. First, the plaintiff said that he did not usually use a case hook whereas it seems that he informed Ms Aickin that he did use it on occasions: Exhibit A, page 174. Secondly, the plaintiff told her that he used a hand operated scanner whereas the evidence established that no scanner was used by pickers: Exhibit A, page 175. Thirdly, the plaintiff apparently advised Ms Aickin that the time permitted in the Engineered Standards for picking did not include time to collect the electric pallet jack in the morning or for meal/tea breaks: Exhibit A, page 175. The preponderance of the evidence establishes that this is incorrect. Fourthly, the plaintiff apparently told Ms Aickin that he worked four to five, 10 hour shifts per week: Exhibit A, page 175. Exhibit 12 shows this to be incorrect. Fifthly, the plaintiff told Ms Aickin that on 1 June 2012 he was running behind his pick rate as the scanner was initially not operating and hence he was trying to catch up and was picking two to three boxes at a time, if possible. However, he apparently told her he only picked one pack when his injury occurred: Exhibit A, pages 178-179. The evidence given by the plaintiff was that he was picking up two packs of Chum dog food when his injury occurred: T 102.41; 487.30. Clearly these matters raise concerns in relation to the accuracy of the information provided by the plaintiff to Ms Aickin and the plaintiff's credit generally: cf paragraphs 303-307 of the defendant's submissions.
However, the incorrect information provided does not seem to impact on Ms Aickin's opinions in relation to the shelf height for the dog food to allow easier access for a worker or for the need for proper supervision to avoid workers picking up more than one box of heavier product at a time. Dr Fairfax, in the course of giving oral evidence together with Ms Aickin, demonstrated the correct manner to lift a box. This was done by her using what appeared to be an empty box on an area created by sticking pieces of newspaper together to a size of a CHEP pallet.
Overall, I found this evidence to be unconvincing as the correct lifting procedure displayed by Dr Fairfax, using a straight back, did not appear to take into account the limited space where the plaintiff was operating between the pick slot and the pallet jack and the need for someone of his height to enter the pick slot to remove heavier products such as dog food where the pallet was nearly empty where lifting was required with bending and then exiting the pick slot backwards holding the box without hitting the worker's head on the 1.4 metre shelf ceiling. In his evidence the plaintiff said that he had difficulty picking dog food boxes from a full pallet because he had 30cm in between the pick slot and the pallet jack to turn. He denied he had a metre of space: T 508.5-.17. The plaintiff also denied that a worker could reach forward and drag the box towards them and then pick it up: T 508.47. He also gave evidence that every day he worked he had to pick boxes of dog food when there was only one row of boxes left at the back of the pallet because of the number of workers constantly picking for different stores: T 509.8-.21. The plaintiff further denied that he could bend down, keeping his back reasonably straight, reach forward and pull the box towards him then pull the box upwards while stepping backwards and upwards from a lunging position: T 509.35-.45.
Overall, I found the evidence of Ms Aickin in relation to the desired height of the shelving and the risks which it presented to a worker in the position of the plaintiff to be more convincing: cf defendant's submissions paragraphs 414-416. Dr Fairfax accepted that there was an increased risk where the shelf height was lower but did not regard this as a significant risk: T 538.47; 540.41; 541.45; 545.30-.48; 547.20; 547.45. Dr Fairfax also accepted that it was possibly correct that where boxes of dog food were in the second row at the back that it was difficult for a worker to pull the box closer to them and they had to lift the box: T 550.28. She indicated that in the real world people use their body weight and body momentum to assist a lift: T 544.48; T 550.36. The location of the heavy dog food under the 1.4m high shelving appeared to require risky lifting in relation to product located in the middle and back of the pallet: cf plaintiff's reply submissions paragraph 14.
In her report, Dr Fairfax makes a number of valid criticisms of the facts relied upon by Ms Aickin: see Exhibit 3, page 44 at paragraph 135 and following. At paragraph 155, Dr Fairfax disagrees that the plaintiff was required to undertake deep bending to reach the product: Exhibit 3, page 45. However, Dr Fairfax's conclusions seem to have been based on the shelf height being 1.8 metres rather than being 1.4 metres as it was. In her oral evidence, Dr Fairfax appeared to maintain her position that the system of work was reasonable and safe even where the shelf height was 1.4 metres for Chum dog food due to the ability to have safe lifting practices and thus not expose the worker to unsafe bending with risk of back injury.
I have carefully read the various reports of the experts and the conclave report. I accept as reasonable the recommendation raised by Ms Aickin in her first report of raising the shelf height to allow pickers and packers to walk into the bay without stooping as described in the plaintiff's evidence: Exhibit 3, pages 148 and 155. Whilst the costs of making this change were not identified the change appears to me to be highly desirable to reduce the risk of injury to workers lifting in a cramped space. I also accept the opinion of both experts that lifting two or three cartons of Chum dog food at a time involved an extreme risk of injury to a worker: Exhibit 3, page 149.
Dr Fairfax expressed the opinion that the defendant's occupational health and safety procedures and measures expressly stipulated against this practise. Ms Aickin expressed the opinion that the risk of lifting two or three cartons of dog food at a time was not adequately controlled by the defendant on the basis that the plaintiff reported that it was common practice amongst pickers to lift more than one carton or pack at a time and the supervisors did not manage the behaviour: Exhibit 3, page 151. Ms Aickin said that the risk management system at the defendant was lacking if pickers and packers were lifting more than one carton of dog food at a time without being curtailed in any way: Exhibit 3, page 153.
In the end, I prefer the evidence of Ms Aickin in relation to the need for the defendant in providing a safe system of work to adjust the shelf height where heavier products such as dog food were stored so that the shelf height was closer to the height of workers and enabled the workers to have better and safer access to lift out the product. I accept that the existing shelf height together with the cramped area for lifting under the shelf in the context of lifting heavy dog food near the pallet jack, created a real risk of injury to a worker. The change in shelving height could have been limited to the heavier products such as dog food and soft drink cartons.
I also accept the evidence of the experts that the lifting of two or three cartons of dog food at a time created an extreme risk of injury: see defendant's submissions paragraph 424(b) and (c). A factual question arises as to whether the supervisors of the defendant took adequate and reasonable steps to prevent this activity occurring.

Submissions for the plaintiff

The plaintiff's written submissions were dated 22 March 2017 and 21 April 2017. The submissions made on behalf of the plaintiff were, in summary, as follows: 1. The plaintiff should be accepted as a witness of truth as should his partner Ms Stylianou: plaintiff's submissions in chief paragraphs 29, 44, 46-48, 52, 59; 2. The plaintiff had prior back complaints and had a history of depressive illness but the former had not resulted in radiculopathy and the latter was connected with the plaintiff's loss of licence and resulting difficulties in working. By the time the plaintiff commenced work for the defendant he had been free of back complaints and depression for a considerable period of time as was shown in his work history in 2011 in the cold stores and his incident free working for the first few months for the defendant; 3. The radiological evidence supported the conclusions of Dr Bodel that there was pathology caused by the accident. Dr Bodel's conclusions should be preferred where they are inconsistent with those of Dr Maxwell and Dr Casikar; 4. There was no evidence the engineered standard system included a pick rate which was safe: plaintiff's submissions in chief paragraph 1; 5. The plaintiff's account of his injury was logical and believable and should be accepted. Where relevant, the plaintiff's account of the system of work was supported by the evidence of Mr Bannerman who should be accepted: plaintiff's submissions in chief paragraph 3. The plaintiff should be accepted when he said a worker had to pick very fast and was obliged to pick multiple boxes to stay within the pick rate: plaintiff's submissions in chief paragraph 2; 6. The plaintiff was injured lifting cartons of dog food. The first incident involved lifting one box and the second incident involved lifting two boxes. The clear evidence showed that these were stored in pick slots of 1.4 metres in height. Although a case hook was issued to workers such as the plaintiff, that was primarily for use in reaching lighter boxes stored on the second shelf above the heavier items stored in the 1.4 metre slots; 7. The system of work used by the defendant in relation to the picking of dog food was unsafe and negligent. First, the plaintiff's Engineered Standards system which placed a crucial emphasis on the performance pick rate of a worker compared to the Engineered Standard encouraged workers to pick quickly and unsafely, including picking multiple boxes at a time. The evidence clearly established that in 2012 workers were picked on the basis of their performance compared to the Engineered Standard and that they were told this: evidence of Mr Miller. The fact that the potential for permanent appointment was linked to the Engineered Standard encouraged unsafe work practices: plaintiff's submissions in chief paragraph 6; 8. Further, the evidence of the plaintiff and Mr Bannerman should be preferred that workers regularly picked up two boxes of heavy product such as dog food without this being forbidden by the defendant: plaintiff's submissions in chief paragraph 2. Despite the evidence of Mr Roberts and Mr Miller as to the defendants' alleged policy against the lifting of multiple boxes, supervisors must have been aware of that this practice was common amongst pickers at the time, alternatively, they should have been aware and their supervision was defective; 9. Mr De Leon's evidence was limited and did not deal with other workers lifting multiple boxes: plaintiff's submissions in chief paragraph 4; 10. It was unsafe for workers for the defendant to store the dog food in 1.4 metre high pick slots. Having regard to the width of the aisles and the need for pallet jacks to be able to pass, there was limited room for a worker to be able to bend, reach in and extract boxes of dog food safely having regard to the distance between their pallet jack machine and the edge of the pick slot: plaintiff's submissions in chief paragraphs 7-10. 11. Having regard to the evidence of the plaintiff, Mr Bannerman and Mr Miller, a worker of normal height could not reach for boxes of dog food towards the back of the pick slot without bending into the pick slot and unsafely bending their back in lifting the box or pulling the box towards them and picking it up. 12. This created a dangerous situation for a worker and rendered it likely that a worker would injure their back in removing a box of dog food. The fact that WorkCover did not have a negative response to the defendants' working system following the May 2012 complaint of the plaintiff, did not negate this conclusion: see Exhibits C and 10: plaintiff's submissions in chief paragraph 17. The plaintiff should be accepted that he complained initially to Mr Miller and a Human Resources Manager: plaintiff's submissions in chief paragraph 9. 13. The dog food should have been stored in a higher (2 metres) pick slot where a worker could walk into and grab the box of dog food or in an open pick slot without a shelf above which would have enabled safe and easier access. The evidence of Ms Aickin should be preferred in relation to the available measures to reduce the risk of injury: see Exhibit A page 168; 14. The plaintiff's induction and training was deficient: plaintiff's submissions in chief paragraphs 11-16. The lifting techniques shown by Dr Fairfax, Mr Miller and Mr De Leon were not suitable to the task; 15. The defendant's expert Dr Fairfax should not be preferred. In any case her evidence was consistent with increased risk in the system. Ms Aickin's alternatives would also have reduced the risks: plaintiff's submissions in chief paragraphs 23-26; 16. Having regard to the plaintiff's evidence and the detail in Exhibit 7, it is clear that the plaintiff injured his back as he indicated: plaintiff's submissions in chief paragraph 28. The system was equally dangerous whether one box or two boxes of dog food was lifted by a worker: plaintiff's submissions in chief paragraphs 20-21. The unsafe system of work and the inadequate supervision should be regarded as the cause of the plaintiff's injury; 17. Contributory negligence should be rejected. Whilst the plaintiff realised that he had hurt his back on 30 May 2012 and continued with work on 31 May 2012 he was not aware of the seriousness of the injury. It was not negligent to continue working having regard to the pressure placed on workers to continue with their working and the plaintiff's limited symptoms; 18. There is no evidence about what actions Tru Blue took, there can in the absence of that evidence be no finding that there was negligence by Tru Blue and accordingly, there should be no reduction under section 151Z(2): plaintiff's submissions in chief paragraph 27; 19. The plaintiff was entitled to substantial damages. The evidence showed any prior back problems had resolved by 2010: plaintiff's submissions in chief paragraphs 29-35. The medical evidence showed the plaintiff had some significant radiculopathy in relation to his back after the accident: plaintiff's submissions in chief paragraphs 33, 36-45. Drs Rhee, Bodel and Christian should be preferred to Drs Maxwell and Casikar: plaintiff's submissions in chief paragraphs 49-53. Further, the report of Dr Allnutt should be preferred to that of Dr Teoh and the plaintiff has a serious depressive illness which was likely to be ongoing or at least required extensive treatment in the short and medium term as suggested by Dr Allnutt: plaintiff's submissions in chief paragraphs plaintiff's submissions in chief paragraphs 54-58; 20. The medical conclusions led to the plaintiff being entitled to substantial damages: plaintiff's submissions in chief paragraphs 59-79.

Submissions for the defendant

The defendant's responsive submissions dated 11 April 2017 were of 87 pages and 601 paragraphs. They cover a large number of factual and legal matters. I will not set out here the detail in the submissions. The submissions made on behalf of the defendant, in summary, were as follows: 1. The plaintiff should not be accepted as a witness of truth. Also, the plaintiff conceded his own unreliability and poor memory of events prior to 2012. He was also evasive in answering questions and his evidence could not be accepted. At all times, the plaintiff exaggerated his symptoms to advance his case. He frequently gave inconsistent evidence. His poor memory of events prior to February 2012 compared to his apparent good memory of events after he started working for the defendant clearly suggests evasion: defendant's responsive submissions generally and particularly at paragraphs 2 (a), 5-6, 13-14, 21-41, 74, 91, 10, 161, 165-166, 349, 358, 394, 424 (a); 2. The plaintiff had serious back and depressive illness problems in the period from 2008 and onwards. He had continuing back problems as late as early 2012. His depression problems existed as at early 2012 and were likely still in existence when he started work at Metcash. As a minimum, the plaintiff should be regarded as being highly susceptible to psychiatric illness: defendant's responsive submissions at paragraphs 2 (c), 29 (b), 72-177; 3. The defendant had a safe system of work. It had safe handling procedures and had a clear policy against lifting more than one box: defendant's responsive submissions at paragraphs 212-368 . 4. The evidence of Mr Roberts, Mr De Leon and Mr Miller was consistent and should be accepted that the defendant had adopted safe handling procedures: defendant's submissions paragraphs 212-276. Having regard to the evidence of Mr De Leon and Mr Miller, it should be accepted that it was clearly possible to lift safely even a 16kg box of dog food in a 1.4 metre slot: defendant's submissions paragraphs 283-300. There was also sufficient room between the edge of the slot and the pallet jack vehicle to safely step backwards with the box, turn around and place the box onto the pallet behind the pallet jack. 5. The evidence of Mr Roberts and Dr Fairfax should be accepted that the plaintiff's expert's alternative arrangements such as a lifting device or a rotating table, were impractical in the defendant's warehouse: defendant's submissions paragraphs 414-418, 425-430. 6. The defendant's expert, Dr Fairfax, should be preferred. The plaintiff's expert, Ms Aickin, based her report on incorrect factual assumptions which had been provided by the plaintiff: defendant's submissions paragraphs 416-424. 7. Overall, there was no proper evidence to suggest that the system was unsafe. The review of the system conducted in 2012 by WorkCover was relevant and concluded that there was nothing wrong with the system: see Exhibits C and 10. Ms Aickin conceded that an employer was entitled to be comforted by a "clear" WorkCover report: defendant's submissions paragraph 424 (e); 8. Accordingly there could be no breach of duty of care in the present case and the plaintiff's case should fail; defendant's submissions paragraphs 431-450; 9. The plaintiff had lied to the doctor in 2012 in relation to his existing back conditions. The evidence was consistent with the plaintiff injuring his back in the course of a safe system of work where he already had a back condition. His history was falsely represented by him to the medical assessor where the plaintiff knew that the medical assessment would be provided to Tru Blue and then to the defendant: defendant's submissions paragraph 161. This was relevant to credit, the breach issue and was also relevant to contributory negligence: defendant's submissions paragraph 482; 10. The medical evidence was clear. The conclave report of Dr Bodel, Dr Maxwell and Dr Casikar showed that the plaintiff had no back injury which prevented him working or returning to work. The conclave report should be accepted: defendant's submissions paragraphs 520-521. This is consistent with the plaintiff deliberately exaggerating his back condition. 11. In relation to the joint conclave psychiatric report, the report of Dr Teoh should be preferred. The plaintiff did not present as someone who was suffering from a depressive illness and he denied he had such an illness: defendant's submissions paragraphs 552-564. The history given to Dr Allnutt was also incorrect and misleading; 12. Causation has not been established. The cause of the plaintiff's injury was the plaintiff's deliberate courting of risk by lifting multiple boxes which he knew to be dangerous and prohibited by the defendant: defendant's submissions paragraphs 451-463; 13. The plaintiff should have any damages reduced substantially because of contributory negligence. The plaintiff lied on his medical assessment form and picked up two boxes on 1 June 2012 which he knew to be dangerous and which objectively give rise to a serious risk of injury. This should result in a substantial reduction in the plaintiff's damages of 25%: defendant's submissions paragraphs 481-485; 14. If liability is found, the plaintiff's pre-existing back and psychiatric conditions should mean that any damages awarded should be modest. There should also be a significant reduction in any damages awarded because of section 151Z of the WCA. The plaintiff's employer, trading as Tru Blue, was fully informed of, and familiar with, the system of work and storage adopted by the defendant and was involved in the training given to the plaintiff. Mr Willits was a daily visitor to the site. It permitted the plaintiff to work in that system and did not withdraw his services or provide proper supervision as it should have: defendant's submissions paragraphs 464-480; 15. If breach and causation are established, the plaintiff's damages should be modest including a finding of only 10% of a most extreme case: defendant's submissions paragraphs 565-601.

Factual findings

Taking into account all the evidence in the proceedings and the submissions made on behalf of the parties I make the following factual findings: 1. The plaintiff was born in October 1985. He was 26 years old at the time of the accident on 1 June 2012 and was 31 years old at the date of the hearing. He currently lives in a de facto relationship with his partner Ms Stylianou, who gave evidence in the course of the proceedings; 2. The plaintiff was educated to the end of Year 10 at school. The plaintiff's background employment history included as a stock replenisher for Woolworths, a kitchen hand for McDonalds, two years of a mechanical engineering apprenticeship and a number of years working for grocery wholesalers as a picker/packer being a person who picked goods at a distribution centre and then packed them on a pallet for distribution to retail stores to be sold to members of the public. He had periods from time to time unemployed until he commenced working at the defendant company's distribution centre in February 2012; 3. The plaintiff was involved in a motor vehicle accident in December 2004 and experienced pain in the lower back and was unable for a period to cope at work. Eventually the plaintiff returned to work; 4. The plaintiff injured his abdomen when he was lifting heavy boxes in December 2005. From that time he realised he could injure himself if he was lifting heavy objects. A workers compensation claim was made at the time, although the plaintiff returned to work; 5. In May 2008 the plaintiff accepted employment with Ceva Logistics Pty Ltd as a picker/packer. Shortly before commencing with Ceva Logistics in May 2008 the plaintiff lost his driver's licence for three years because he was engaged in drag racing. Soon after he was convicted for driving to work unlicensed. The plaintiff likely received training in safe manual lifting at Ceva Logistics. The plaintiff clearly understood the safe way to lift a heavy box whilst he was working at Ceva Logistics in 2008. He was still aware of the safe way to lift a box when he commenced work at the defendant in 2012: T141.3; 6. The plaintiff suffered depression from about 2008-2009 as a result of losing his licence and the pressures this placed on him concerning his work and domestic circumstances. The plaintiff's depression and psychological problems continued well after 2008-2009, probably until the beginning of 2012; 7. The plaintiff injured his back on two occasions whilst working at Ceva Logistics; 8. I have set out my analysis of, and findings on, the medical evidence above at paragraphs 263-283. The analysis and findings are based on my view of the medical evidence which I have set out in detail above. As stated there, on all the evidence I find the plaintiff's back condition which he had in 2008-2009 had resolved by early 2010. In relation to the plaintiff's depression problems, these seemed to have continued until at least 2011 and probably early 2012 when he started at Metcash but they were not of such a serious level to prevent the plaintiff working in 2010-2011 in picking at a cold goods facility for VersaCold or commencing work with the defendant in February 2012. Clearly, as at mid-2012, the plaintiff was prone to depression as his history from 2009 to early 2012 makes clear. The plaintiff was unemployed for a lengthy period approaching one year before he started work with the defendant; 9. The plaintiff applied for work with Tru Blue, the labour hire firm, some time before February 2012. He was referred for medical assessment. The plaintiff was aware that the results of the medical assessment would be forwarded to Tru Blue and from there to any potential employer; 10. The plaintiff lied in the form completed by him for the purposes of the medical assessment in relation to his prior medical history, prior back injuries, prior depressive illnesses and workers compensation claims. See Exhibit 3, page 223. The plaintiff conceded in cross-examination that he was willing to lie in the medical form signed by him on 16 February 2012, even though he knew it would be sent to his employer and he knew that it would be sent to wherever he went and worked for and they would rely on it. The plaintiff should be accepted that he lied in the form so that he could get the work and earn money and not stay on Centrelink benefits; 11. Mr Miller gave evidence that if he was aware that a person "had a back injury" that he would hand the assessment of the person back to the employment agency to check out as a person with a back injury would not be suitable for picking and packing for the defendant as they had to be fit: T 436.3-.22. This does not seem to be relevant in this case. The plaintiff had previously had back problems but he does not on the evidence appear to have had a back injury, meaning a current back injury, in February 2012. As stated above, I find the plaintiff's back condition had resolved by early 2010. 12. Matt from Tru Blue, his employer, gave instructions and information to the plaintiff in relation to safe manual handling at his induction on 21 February 2012. The plaintiff was also given training in safety including safe manual handling by the defendant at about this time: see Exhibit 13. The induction documents prepared by Mr Roberts do not contain, as the plaintiff submits (reply submissions paragraph18), a direction to lift only one box at a time. However, all the illustrations in those documents show a worker only lifting one box at a time. The plaintiff denied receiving these documents. I find it is likely that the plaintiff was at the least taken through safe manual handling techniques involving lifting only one box; 13. I accept that Mr Miller, in accordance with his usual practice, also participated in the plaintiff's induction to the defendant's premises. The plaintiff had no clear recollection on this point: T236.46-T237.10. I find that the plaintiff was probably told by Mr Miller to lift one box only of produce at a time during the induction: T424.8; T424.41; T438.36 cf plaintiff's primary submissions paragraph 11 and his reply submissions paragraph 15; cf defendant's submissions at paragraph 253. I prefer the evidence of Mr Miller to that of the plaintiff on this point as Mr Miller conducted the inductions for casual workers and this included information as to safety in manual handling. It is also consistent with the evidence of Mr Bannerman on this point: T351.47; T356.29. The plaintiff conceded that he could not remember being told only to lift one box at a time: T501.35-.40. I accept Mr Roberts' evidence that it was the defendant's practice for workers only to lift one box of goods at a time: T51.25-.39. I also find that if Mr Roberts or Mr Miller or other supervisors saw workers lifting more than one box of heavier products that they would stop them, tell them not to lift more than one box and instruct them in safe handling techniques. I accept their evidence in this regard. I reject the plaintiff's evidence that supervisors had seen the plaintiff lifting more than one box and had ignored it. 14. However, based on the evidence of the plaintiff and Mr Bannerman which I accept on this issue, I think it likely, and I find that it occurred, that some persons working at the defendant company in the period February to June 2012 as pickers/packers lifted more than one box of products at a time, particularly the lighter products, although I also find that it was common practice at the time amongst some workers to lift more than one box of heavier items such as dog food or soft drink, to keep up with or get close to the engineered standard time: cf plaintiff's primary submissions at [18]. I am not satisfied on the evidence that supervisors were aware that it was common practice in 2012 for workers to pick up two boxes of dog food or two boxes of other heavy goods at a time. I accept Mr Roberts and Mr Miller's evidence on this issue. I also accept that Mr Roberts and Mr Miller stopped this practice if they saw it. The evidence establishes several supervisors on duty on each shift which was reasonable supervision of workers; 15. I find that the plaintiff was told when he started with the defendant that there was a performance standard known as an engineered standard which the workers had to meet. Although I do not find that there were mandatory percentages that had to be met with any risk of dismissal, I find that some pressure was placed on employees and potential employees to meet the engineered standard for 100%. I find that there was frequent communication between supervisors at Metcash such as Mr Miller and labour hire officials such as Matt from Tru Blue to workers to reach the engineered standard. I also find that the performance of labour hire employees to the engineered standard of 100% pick rate was taken into account in whether the labour hire employee was taken on as a full time employee at Metcash or was given weekend work. I accept the evidence of the plaintiff, Mr Bannerman and Mr Miller in this regard. I accept the plaintiff submissions on this issue: reply submissions paragraph 20 last sentence. This pressure placed on employees and potential employees resulted in some workers increasing the speed of their work and picking up multiple boxes of product in an attempt to reach the defendant's engineered standards of pick rate of 100%; 16. The evidence in Exhibits 7 and 11 shows that, contrary to the plaintiff's evidence, he picked goods at or about the engineered standards' pick rate during the latter part of his time working for the defendant: see Exhibit 7 and Exhibit 11. I find that it is accordingly very unlikely that pressure to meet the engineered standard was directed specifically at the plaintiff as he claims; 17. I accept the various descriptions of the procedures in place for picking/packing at the defendant's premises in 2012 given by the plaintiff, Mr de Leon, Mr Bannerman and Mr Miller. 18. A worker picked up the labels for an order and the picking procedure was then relayed to the worker by a computer generated voice through the worker's headset. The worker drove the electric pallet jack up and down the aisles at the defendant's premises picking and packing the goods as directed. When the order was completed the worker wrapped the order on the pallet and gave it to another section which arranged for the order to be trucked to the ordering retailer. 19. A worker had one or two pallets on the back of the electric pallet jack as he or she drove up and down the aisles at the defendant's premises. When a pallet jack was stopped to pick a product it was parked about one metre away from the pick slot. This was in order to allow another worker with an electric pallet jack to pass the first pallet jack to pick other goods. 20. Goods were stored on shelves in the large number of aisles in the defendant's distribution centre. The shelves were at the heights of 1.4 metres, 1.6 metres and 1.8 metres. Where goods were stored under a shelf of 1.4 metres in height, there were goods stored on a second shelf above the first goods. The goods on the second shelf were lighter goods. 21. A metal case hook was supplied to workers for reaching goods at the back of a pallet. However, it was not frequently used and if it was used it was usually used on the second shelf to reach lighter goods at the back. The reason a case hook was not used by workers on lower goods was because of the weight of the goods, the risk of damaging the product and the hook was less practical to use: I prefer the evidence of the plaintiff and Mr Bannerman to that of Mr de Leon and Mr Miller on this issue; 22. Dog food was stored in pick slots which were 1.4 metres in height. Although workers were instructed to pick in layers, usually workers picked the product which was most convenient to the worker. This often resulted in product towards the front of the pallet being picked first and a stepped effect being created on the pallet of heavier goods such as dog food. All goods were stored on a pallet on each shelf or in the case of dog food, on the lowest pick slot on a pallet on the ground. The reason the product was stored on a pallet was this was how it was placed by a forklift into the pick slot; 23. The question arises for consideration whether the defendant's system of having an engineered standard with headphone instructions amounted to an unsafe system of work. 24. On one side is the argument that it was merely a system designed for efficiency around a time that a skilled worker properly trained should take in performing a task. No penalties were imposed on workers who did not pick to the engineered standard. Extra training and assistance was given by the defendant to assist workers to meet the engineered standard. Workers like Mr De Leon were able to maintain the standard. I note also that Mr De Leon was a person of slight build whereas the plaintiff was a heavier built man. Picking involved the frequent lifting of medium and heavier weight items although the process also involved much time in moving the pallet jack. See the defendant's submissions at paragraphs 308-318. 25. On the other hand there is the evidence of workers being pressured to meet the engineered standard with promises of permanent employment if they were a labour hire employee and weekend work. In addition, I find that workers were spoken to or texted in relation to meeting the engineered standard. At the end of each shift workers were told what their percentage was to the engineered standard 100% pick rate for the job they had just completed and for their day. This added to the pressure on them. 26. After carefully considering this issue, I am not satisfied that the plaintiff has established that this alone provided an unsafe system of work. There is no evidence that workers were directed to pick up more than one box or that they were punished or dismissed for not meeting the engineered standard. Overall, the engineered standard seemed to provide in my view what it was alleged to provide, an efficient standard by which to judge the performance of employees. The fact someone like Mr De Leon could meet the standard showed that it was achievable: see the defendant's submission at paragraph 318. I do not find that lifting more than one box of produce was the result of the unreasonable concentration on pick rates by the defendant. I do not accept Mr Bannerman's evidence on this issue: T351.48 relating to the need to "beat the system." I also do not find on all the evidence that by emphasising the pick rate, the defendant was encouraging workers to pick as fast as possible irrespective of safety issues including picking two boxes at a time: plaintiff's primary submissions paragraph 6; 27. That does not, however, mean that the entire system adopted by the defendant was necessarily a safe system of work. 28. The next issue to consider is whether the system provided by the defendant in relation to the picking and packing of dog food stored in 1.4 metre high slots was a safe system of work. 29. On this issue I prefer the evidence of the plaintiff and Mr Bannerman to that of Mr Roberts, Mr Miller and Mr De Leon. The real issue is whether workers were able to pick safely heavier products such as cases of dog food stored in a 1.4 metre high pick slot on a pallet where the product was located towards the back or middle of the pallet either by itself (in the sense of a single remaining box or case) or on a stepped pallet where goods had been taken from the front of the pallet. 30. I listened carefully to the evidence as given by Mr Miller. I accept the evidence of the plaintiff and Mr Bannerman in the light of the concessions made by Mr Miller who was the labour hire foreman at the defendant's premises at the time, that it was very difficult to safely pick dog food stored towards the middle or back of a 1.4 metre high pick slot. 31. First, the height of the shelfing at 1.4 metres meant that the average male worker had to bend his head considerably to get into the pallet. Secondly, a worker was instructed only to place one foot on a pallet. I prefer the evidence of Mr Bannerman and Mr Miller to that of the plaintiff on this issue. Thus the worker could not climb into the pallet while complying with this direction. Thirdly, the weight of the product was such that a worker had to bend into the pick slot to pick up a box of dog food. A box of Chum dog food weighed over 16kg. In doing so, in my view, it was virtually impossible to pick the product using safe lifting and handling techniques whilst keeping the back straight. The cross-examination of Mr Miller was in my view effective to establish this and provides support for the evidence given by the plaintiff and Mr Bannerman on this issue. This is reinforced by the short distance between the pick slot and the parked pallet jack of no more than one metre which made it difficult to undertake the safe lifting technique demonstrated by Mr Miller of bringing the box of dog food closer to the worker placing one foot forward and lifting the product above the knee and stepping back whilst avoiding hitting the worker's head on the 1.4 metre high shelf above; 32. In my view the placement of the dog food in a 1.4m high slot was unsafe and created unreasonable risks of injury. I reject the contrary expert evidence of Dr Fairfax and prefer Ms Aickin's evidence on this issue. In my opinion dog food cartons should have been placed in pick slots of at least 1.8 metres and preferably two metres in height to allow a worker to safely access the product. 33. Having regard to the engineered standard, the pressure on workers to pick the product expeditiously and meet the standard, the low height of the pick slot where heavy dog food was located, the congested location with a pallet jack parked nearby, in my view the system for picking dog food was, viewed overall, unsafe; 34. The demonstrations provided by Dr Fairfax, Mr De Leon and Mr Miller of safe lifting in those circumstances with a 1.4 metre high pick slot did not appear to me to be practical in such a confined situation. By this I mean the confined area between the pallet jack with pallets attached and the pick slot. Overall, I accept the evidence of Ms Aickin, the plaintiff and Mr Bannerman in this regard. Dog food cartons towards the middle and back of the pallet could not in my view be picked from a 1.4 metre high pick slot without the worker engaging in risky bending or crawling over the pallet whilst moving the 16kg carton. I found the evidence of Mr Bannerman particularly persuasive on this issue. I also strongly took into account the cross-examination of Mr Miller at T449-455.15; 35. I accept in general terms the plaintiff's evidence in relation to how the injury occurred to him on 1 June 2012: T102.40-103; T318.47-321.16; T323.28-324.38. The plaintiff's evidence was imprecise and inconsistent in relation to the detail of the events of the alleged 30 May 2012 injury: T103-4; T319-20. I believe that the plaintiff has, at the least, refreshed his memory of the two incidents from the daily print outs which are Exhibit 7. However, the account given by the plaintiff of the 1 June 2012 incident is, in my view, in general terms plausible and believable and appears to be consistent with Exhibit 7 and later medical reports. I accept the plaintiff's evidence in relation to the 1 June 2012 incident; 36. In coming to this conclusion I take into account the general inconsistencies in the plaintiff's evidence, the risk of reconstruction, his concession in relation to memory problems and his differing evidence in relation to his recollection as to where the dog food was located when he picked it on 30 May 2012. The plaintiff conceded that he may have been lifting more than one box of dog food when he was allegedly injured on 30 May 2012: T487.26. Exhibit 7 seems to indicate it was only one box of dog food which was lifted on 30 May 2012 at the time the plaintiff stipulated as the time of injury: T103.33. The plaintiff continued lifting product, including heavy boxes, after the time of the alleged injury on 30 May 2012. The physiotherapist the plaintiff saw after the 1 June 2012 injury (Ms H Smith) refers in her notes to the plaintiff picking up one box on 1 June 2012 which weighed 16-18kg: Exhibit A page 140 cf Exhibit 3 page 602 which refers to a 16kg box. Ms Smith did not refer to any incident on 30 May 2012. However, the plaintiff denied that he said he lifted one box on 1 June 2012 to her and it seems to be inconsistent with the picking records in Exhibit 7. I find on the balance of the evidence that the plaintiff was injured as he claims when he lifted two boxes of Chum dog food on 1 June 2012. However, I find that the plaintiff's account of the 30 May 2012 alleged injury is not reliable in the light of the evidence. He was inconsistent in relation to the location of the dog food and could not recall how many boxes of dog food he was lifting at the time. The records also show him lifting heavy product after the time he has identified when the injury occurred. I discuss the incidents further in relation to the causation issue; 37. On all the evidence I find that the dog food the plaintiff picked on 1 June 2012 was located in a 1.4 metre high pick slot; 38. I reject the plaintiff's evidence that he told Mr Miller of his alleged injury on 30 May 2012 and was only offered a Panadol by Mr Miller. I accept Mr Miller's evidence that he did not offer the plaintiff a Panadol as he was not permitted to do so in accordance with company policy; 39. I accept the plaintiff's evidence as to the onset of an aching back in May 2012. However, it seems that the injury which caused the plaintiff real difficulties and to cease work occurred on 1 June 2012. Exhibit 12 shows the plaintiff worked for 7.47 hours on 30 Mary 2012 and for 7.51 hours on 31 May 2012; 40. I also accept the plaintiff's evidence in relation to attending the Tru Blue company doctor, Dr Foo, after the 1 June 2012 injury, having physiotherapy and then returning to work for a short period on 13 June 2012 until he formed the view that he could not continue further in the picking/packing role. It seems, however, that the plaintiff had some improvement in the period 1 June 2012 to 12 June 2012: Exhibit 3 page 605; 41. I accept the plaintiff's evidence in relation to his personal perceptions of his limitations. I also accept the evidence of Ms Stylianou as to her observations of the plaintiff. I found her to be an impressive and honest witness. I do not accept the defendant's submissions that her evidence should be treated with caution because she spent so much time away from the plaintiff working. 42. However, I also accept the conclave medical opinion of Drs Bodel, Maxwell and Casikar. This has been set out in detail above. I agree with the defendant's submissions that there is no good reason why the conclave evidence should not be accepted: paragraph 17. In particular, I accept the evidence of the doctors that: 1. The plaintiff's reported restriction of movement in his back was not consistent and could not be objectively measured; 2. There was no objective evidence that the plaintiff has any pathological cause for the numbness in the buttocks and thighs in relation to the subject accident; 3. There was no evidence of an altered gait in the plaintiff; 4. There was no pathological lesion which would cause difficulty in the plaintiff's ability to traverse steps; 5. There was no current pathological cause to explain the plaintiff's suggestion that experiences of weakness in his left leg when he walks; 6. Any falls reported by the plaintiff would not be due to a neurological lesion caused by the subject accident; 7. There is not any physical or pathological reason why the plaintiff could not lift, carry, stand or lie down; 8. There is no reason for the plaintiff to have any difficulty sitting because of any pathological lesion; 9. There was no pathological lesion which would cause the plaintiff to limp; 10. There was no reduced capacity to engage in pre-injury social and recreational pursuits as a result of any pathological lesion caused by the accident at the defendant's premises; 11. There was no neurological or other pathological lesion which would cause difficulty in the plaintiff performing household chores and duties; 12. There was no evidence the subject accident at the defendant's premises has caused reduced enjoyment of life in the plaintiff from a physical perspective; 13. The diagnosis of disc bulging noted on some of the radiological investigations were not significant in this case because the disc bulges were not large enough to cause any nerve root impingement and these were normal variants; 14. The plaintiff did not need any medical treatment in relation to any physical or pathological condition; 15. It was unlikely that the plaintiff suffered any significant incapacity for work from the accident. The plaintiff has full capacity for employment without restrictions; 16. There was no physical diagnosis to support that the plaintiff had any pathological condition to support his claim of continued back pain; 17. The plaintiff did not require further medical treatment apart from for his psychological condition; 18. As indicated above, I prefer Dr Bodel's view in relation to the plaintiff's physical restrictions arising immediately from the accident on 1 June 2012. These created continuing intermittent back pain for some time after the accident. I prefer Dr Bodel's opinion where different to that of Drs Rhee, Christian and Cameron due to the fact he is a specialist and examined the plaintiff a number of times as an expert medico-legal witness. I also accept that the plaintiff has an ongoing psychiatric condition arising from his physical injuries which requires treatment and prefer the opinion of Dr Allnutt on this issue. However, I accept on the basis of the medical evidence in the conclave report that the plaintiff's current perceptions of his physical limitations are erroneous and exaggerated; 19. I find that the plaintiff's psychiatric condition currently renders him unfit for work when seen in the light of the back problems from which the plaintiff has suffered as referred to by Dr Bodel in his reports; 20. The plaintiff should have the psychiatric treatment suggested by Dr Allnutt. The plaintiff's prognosis after this treatment is uncertain.

Issues to be determined

It seems that the following issues need to be determined in relation to the claim made by the plaintiff: 1. Did the defendant owe the plaintiff a duty of care to provide a safe system of work to the plaintiff? 2. Did the defendant breach its duty of care to the plaintiff by failing to provide a safe system of work? 3. If so, did any breach of duty of care cause the plaintiff's injuries of which he complains? 4. What was the extent of the plaintiff's injuries? 5. Were the plaintiff's injuries caused and/or contributed to by his own negligence and, if so, should there be any reduction in the amount awarded? 6. What reduction, if any, should be made under Section 151Z of the WCA? 7. What damages, if any, should the plaintiff be awarded?

Legal principles to be applied - duty and breach

As indicated above, at the time of his injury, the plaintiff was employed by J W Workforce Solutions Pty Ltd trading as Tru Blue Recruitment Australia, a labour hire company, which provided the services of the plaintiff as a worker to the defendant.
The plaintiff has chosen to sue the defendant instead of his employer Tru Blue. If the plaintiff had sued his employer, his damages would be as altered by the WCA. The CLA would have no application to a claim for modified work injury damages under the WCA by an employee: see Section 3B(1)(f) of the CLA. However, as the defendant was not the plaintiff's employer, the CLA applies to these proceedings.
In Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, Barrett JA (with whom McColl and Basten JJA agreed) stated at [40]-[41] as follows: "[40] Transpacific, as "host employer", owed the plaintiff a duty of care in negligence. Because the services of the plaintiff were effectively at the disposal of Transpacific for all purposes and Transpacific controlled the work the plaintiff was required to do and the circumstances and manner in which it was to be done, Transpacific owed to the plaintiff either a duty corresponding with that of an employer or a duty very similar to an employer's duty: TNT Australia Pty Ltd v Christie [2003] NSWCA 47 ; (2003) 65 NSWLR 1. That being so, the duty could not have been higher or more onerous, from Transpacific's viewpoint, than that described by Hoeben J (as he then was) in Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749 at [45]: [The employer] had an obligation to exercise reasonable care for the safety of the plaintiff while he was carrying out the work allocated to him. That obligation included warning him of unusual or unexpected risks and instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. [41] Any obligation of Transpacific to warn the plaintiff therefore could not have required more than warning of unusual or unexpected risks; and any obligation to instruct could not have required more than such instruction as might reasonably be thought to be required to secure the plaintiff from danger of injury."
The evidence in the present case establishes that the defendant's warehouse was under its control and not under the control of the plaintiff's employer. In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, Basten JA (with whom Macfarlan and Simpson JJA agreed) stated as follows at [115]-[116]: "[115] Part 5 Div 3 of the Workers Compensation Act applies to an award of damages in respect of injury to a worker caused by the negligence of the worker's employer. The Civil Liability Act does not apply to the liability relating to such an award. The Workers Compensation Act modifies common law principles, particularly in relation to the assessment of damages. It does not, however, modify the common law principles with respect to duty, breach of duty or causation. [116] The nature of the obligation owed by an employer to an employee was explained by the High Court in Czatyrko v Edith Cowan University: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.""
Accordingly, the defendant owed a duty of care to the plaintiff either corresponding with, or very similar to, an employer's duty of care. Therefore, in the present case, the defendant owed to the plaintiff a duty to exercise reasonable care for the safety of the plaintiff while he was carrying out the work allocated to him. Applying the principles stated by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14 at [12], the duty owed to the labour hire employee was to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a work place, the defendant must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or provides adequate safeguards. It is not an obligation to ensure safety at work, it is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury. That would include exposing the worker to physical injury, such as injuring the worker's back, and exposing the worker to psychiatric injury arising from a work place physical injury such as a back injury.
As the plaintiff's claim is under the CLA, an analysis needs to be undertaken of the matters set out in Section 5B of the CLA. That is a question to be determined prospectively by reference to the evidence: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [30]-[31]; Takla v Nasr [2013] NSWCA 435 at [71].
In Takla, McColl JA (with whom Basten and Hoeben JJA agreed) stated as follows at [72]-[73]: "[72] The breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that his Honour could determine what a reasonable response to that risk would be: Dederer (at [18], [59]) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ. His Honour identified that risk (at [57]) as MTK's insolvency preventing her from getting her money back. The appellant did not cavil with that aspect of his Honour's reasons. [73] Section 5B(1) of the Civil Liability Act required the primary judge to consider the issue of whether the respondent had breached his duty of care in failing to take the precautions for which the appellant contended by determining whether the risk was foreseeable, was not insignificant, and was such that in the circumstances, a reasonable person in the person's position would have taken those precautions."
In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Gummow and Hayne JJ stated at [192]: "[The breach enquiry] involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."
Section 5B of the CLA provides as follows: "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."

Breach of duty of care

I analyse the principles in Section 5B of the CLA as applicable to this case as follows: 1. The risk to the plaintiff was foreseeable by the defendant being a risk of which the defendant knew or ought to have known. The risk in the present case is a back injury to the plaintiff whilst lifting heavy boxes from under 1.4 metre high shelving with related psychiatric complications. The defendant had established a sophisticated system of work. That system recognised the possibility of back injuries by the adoption of safe handling procedures. It also involved the plaintiff being required to pack goods at what was perceived to be an efficient rate determined by the defendant and not him. The defendant was aware of the location in which the dog food boxes were stored being on the first level of shelving below 1.4 metres in fairly narrow aisles. It was also aware of the limited space between the pick shelf and the pallet jack due to the need for a pallet jack to be able to be overtaken by other pallet jacks. The provision of the case hook was an indication that the defendant was aware of the need to pull heavy product forward. In my view a back injury to the plaintiff was clearly foreseeable by the defendant having regard to the location of the dog food boxes and was a risk of which the defendant knew or ought to have known. The risk of psychiatric complications was also in my view a risk of which the defendant knew or ought to have known; 2. The risk to the plaintiff from a back injury in picking up heavy boxes of dog food in a confined space from a 1.4 metre high pick slot was not insignificant. The evidence establishes that the dog food varied in weight with a box of the Chum dog food weighing over 16kg. The plaintiff was required to extract cases of the dog food from the pick slot where his height well exceeded the 1.4m high shelving of the pick slot. The following matters were relevant: the goods were to be picked in a cramped location, the height of the pick slot, the fact that there were two pallets in the pick slot side by side, the plaintiff's height and the limited room near the electric pallet jack. The risk to a worker of a back injury and potential psychiatric complications as a result of the back injury was in my view clearly not insignificant in the circumstances; 3. The plaintiff has submitted that the defendant should have adopted an alternative system of work of making the pick slot a height (such as 1.8 metres or preferably 2 metres) which allows a worker to have ready access; 4. It was further submitted that the plaintiff's expert, Ms Aickin, should be accepted where she recommended having heavier items, such as Coke or dog food, on self-raising platforms, placing some pallets on a higher platform, installing turntables for certain foods and rotating pallets. 5. In relation to Ms Aickin's suggestions, I accept the evidence of Dr Fairfax and Mr Roberts of the defendant that the use of these recommended alternatives was not practical in the circumstances. I also accept that the cross-examination of Ms Aickin showed that these alternatives were uncosted and in the case of rotating pallets, had their own risks as a result of increased forklift activity. 6. There is also the evidence of the plaintiff and Mr Bannerman that multiple boxes of dog food and soft drink were lifted by workers and that both of them were never corrected by supervisors. This should be contrasted with the evidence of Mr De Leon, Mr Miller and Mr Roberts that either this did not occur or it was corrected by supervisors when they saw it and all workers were taught safe manual handling techniques. 7. On this point I accept the evidence of the plaintiff and Mr Bannerman that the lifting of multiple boxes of dog food and soft drink occurred by some workers as a matter of practice and that this was perceived by the plaintiff to be necessary to keep up with the engineered standard pick rate. Despite the plaintiff and Mr Bannerman's evidence, I am not satisfied that this was seen by supervisors on a regular basis and tolerated by them or should have been seen by them in their reviews. I prefer Mr Roberts' and Mr Miller's evidence on this issue as to their approach and regular supervision by supervisors. 8. In my view, taking into account all the evidence, a reasonable person in the position of the defendant would have taken the precautions which the plaintiff submits as to the location of the dog food in a pick slot of at least 1.8 metres in height in order to take reasonable steps to avoid the risk of back injury to a worker by bending his back under the shelf to reach and pull out the heavy dog food cartons. There is no suggestion that this would have made the pick rate inefficient or that it would have imposed unreasonable difficulties on the defendant. In my view the probability that harm would occur to the plaintiff if the precautions suggested were not taken was reasonably high. The likely seriousness of the harm to the plaintiff was also high and could have involved a serious injury to his back. The burden of making the changes to the system recommended does not appear to be overly significant. There is no particular social utility of keeping the system in the form adopted by the defendants. Whilst this may have slowed the process down slightly and accordingly may have led to additional costs, there is no evidence that this would have created an unreasonable burden on the defendant or that the social utility was so high as to negate the adoption of the alternatives.
In coming to this conclusion I have taken into account: 1. The WorkCover complaint and report which is Exhibit C, the fact WorkCover had observed the 1.4m height of the shelving and picking in May 2012 and determined that no further action should be taken; and 2. The expert evidence.
For the above reasons, in my opinion, the defendant unreasonably failed to take available precautions against the risk of harm to the plaintiff by placing the dog food cartons in a pick slot of 1.4 metres in height and therefore a breach of duty of care is established in the present case by the plaintiff.
In my view, having regard to my factual findings, none of the other breaches alleged was established on the evidence.

Causation

The cause of action in negligence is to be determined in relation to causation in accordance with Section 5D of the CLA. Section 5D of the CLA is as follows: "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.
Section 5E of the CLA is as follows: "5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Accordingly, the plaintiff has the onus of proving on the balance of probabilities any fact relevant to the issue of causation.
The relevant principles in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]; Wallace v Kam (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ at [198], at [197] per Beazley P and at [319]-[324] per Basten JA.
The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].
In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Leeming JA (with whom McColl and Basten JJA agreed) stated at [95][-96] as follows: "95. Unlike duty and breach, the inquiry as to causation is "wholly retrospective [and] ... seeks to identify what happened and why": Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [124]; Warth v Lafsky [2014] NSWCA 94; 2014 Aust Torts Rep 82-166 at [61]. Putting to one side s 5D(1)(b) (which was not relied upon), causation is wholly factual and turns on the plaintiff's proof on the balance of probabilities that the failure to take the precaution was a necessary condition of the occurrence of harm: Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14]. 96. Proof of the requisite causal link between those omissions and an occurrence required consideration of the probable course of events had the omissions not occurred: Strong v Woolworths Ltd at [32]. It was accordingly necessary for Mr Hennessy to prove that had an intermediate step been installed, then it is likely that he would not have slipped and fallen on the evening of 21 March 2005."
In the present case, this involves a determination of whether, but for the breach of the duty of care by the defendant which I have found, any loss or damage suffered by the plaintiff arising from the injuries would not have occurred.
The plaintiff submits that the injuries were clearly caused by the faulty system adopted by the defendant of the placement of the dog food cans in 1.4 metre high pick slots. It is also submitted that they were caused by the inappropriate supervision of workers picking more than one case of goods to fit within the time limits in the engineered standards: see T351.21-352.15; primary submissions at [18].
The defendant submits that the cause of any injury suffered by the plaintiff was the plaintiff breaching the defendant's practices and procedures by lifting more than one box of dog food at a time which he knew to be a dangerous and inappropriate lifting practice: defendant's submissions at [456]-[459].
The defendant referred to the inconsistent evidence as to whether the plaintiff was picking one or two boxes of dog food on 1 June 2012 when the injury occurred. The evidence is as follows: 1. The plaintiff allegedly felt pain on 30 May 2012 whilst picking boxes of dog food. The plaintiff initially said this was when he was picking one box of Pedigree dog food: T103.26; Exhibit 7; plaintiff's primary submissions at [22]. He then altered his evidence and conceded that he was not sure how many boxes of dog food he was lifting in the first incident and it could have been more than one box: T487.14-.26. The plaintiff also gave inconsistent evidence about where he picked the box of dog food from - the ground or the second shelf: T103.39 cf T319.45. The plaintiff was unimpressive in relation to his evidence of the circumstances of the 30 May 2012 injury; 2. The plaintiff felt an aching back from 30 May-31 May 2012 but was able to continue to work without restrictions; 3. The plaintiff injured his back picking dog food on 1 June 2012; 4. This serious injury occurred on 1 June 2012 when the plaintiff was lifting two boxes of dog food.
The question is whether, but for the breach of duty of care found being the placement of the dog food cartons in a 1.4metre high pick slot as opposed to a 1.8metre or higher pick slot, the injuries to the plaintiff would not have occurred.
The Amended Statement of Claim filed 8 May 2015 makes clear that the injury sued on is that which occurred "on or about 1 June 2012": paragraph 5. This was when the plaintiff lifted two boxes of Chum dog food.
The plaintiff's written submissions in chief rely on both injuries, being the alleged injury on 30 May 2012 and the injury on 1 June 2012: paragraphs 22 and 28. The defendant made no issue of the fact that the plaintiff's case as run at trial was different to the pleading.
The plaintiff conceded that from 2005 he knew that he could injure himself if he was lifting heavy objects: T130.26.
There is no satisfactory evidence of the extent of the alleged injury received by the plaintiff on 30 May 2012. The plaintiff said he felt sharp pain whilst picking one box of dog food but later conceded it could have been more than one box: T103.22-104.4. He finished his pick and saw Mr Miller but stated that he continued working during the day feeling "twinge pain" every time he had to bend under the racking: T104.35.
The plaintiff worked on 31 May 2012 but said he "struggled": T104.44. This does not seem to be supported by the balance of the evidence. As stated above, the plaintiff worked for 7.47 hours on 30 May 2012 and for 7.51 hours on 31 May 2012: Exhibit 12. Exhibit 7 shows no real break in the plaintiff working after the first incident. His later lifting in the shift included lifting a number of heavy items weighing more than 10kg.
No medical examination occurred after the 30 May 2012 alleged injury. There is no satisfactory evidence that the alleged 30 May 2012 injury caused or contributed to the 1 June 2012 injury, the plaintiff's later psychiatric problems or was serious in any way or compensable by itself. Having regard to all the evidence, I find that the plaintiff's evidence of the alleged 30 May 2012 injury is unreliable and should not be accepted.
The injury which stopped the plaintiff working was that on 1 June 2012: T102.41. This, it seems, was the far more serious injury. The plaintiff then saw Dr Foo and a physiotherapist.
I have found that the system of work provided by the defendant was unsafe to the extent that it required the plaintiff to pick boxes of dog food weighing 16kg or more from pick slots, which were 1.4m in height where the pick slot was partially empty and the worker had to enter or reach into the pick slot to grab a box of the dog food from the middle or back of the slot.
As stated, in the present case the onus rests on the plaintiff of proving on the balance of probabilities any fact relevant to the issue of causation: Section 5E of the CLA.
In his evidence relating to the 1 June 2012 injury, the plaintiff stated the following: 1. "…then when I was turning to stand up [with two boxes of dog food] that's when I felt a sharp pain: T102.45; 2. "I grabbed the two boxes. I wiggled out from under the racking, I turned, and as I went to stand up I got this intense sharp pain…": T105.43; 3. "…[I was ] picking dog food from under racking": T324.28.
Taking all the evidence into account, I do not believe that the plaintiff has established on the balance of probabilities that but for the breach of duty of care found of having the racking at 1.4 metres as opposed to 1.8 metres, the 1 June 2012 injury would not have occurred. I find that the cause of the 1 June 2012 injury on the evidence was the plaintiff lifting two boxes of dog food which the experts both regarded as presenting a serious risk of injury. I accept the defendant's submissions in this regard.
There is no evidence, nor in my view can I properly infer, that the breach I have found, being the placement of the dog food cartons in the 1.4m high pick slots, in any way was causative in the relevant sense under Section 5D of the plaintiff's injury on 1 June 2012. It should be noted that the plaintiff picked up two boxes of dog food on 1 June 2012 even though he realised this could hurt his back, in order allegedly to keep up with the time allowed in the engineered standard: T494.22.
I have found that the defendant's supervisors did not condone the workers lifting two boxes of dog food at a time. Having regard to the plaintiff's evidence that picking multiple boxes "was the only way you could stay within the pick rate" (T 97.36; T 491.25), I consider it likely that the plaintiff would have continued to pick up two boxes of dog food at a time even if he had been corrected by supervisors.
In the end, I am not satisfied that the plaintiff has established causation to the requisite standard.

Contributory negligence

The defendant has pleaded contributory negligence in the present case. Although I have found causation has not been established I will proceed to consider this issue.
The particulars of contributory negligence are set out in paragraph 12 of the Defence to the Amended Statement of Claim in the following terms: "12. The Defendant says that if the Plaintiff suffered the injury and damage complained of in the Statement of Claim herein which is not admitted and in the manner alleged which is also not admitted then the said injury and damage were wholly or partly caused by the negligence of the Plaintiff. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) The Defendant relies upon Section 5R of the Civil Liability Act 2002. (b) Failed to take any or any proper care for his own safety. (c) Adopted an unsafe manner in performing his duties. (d) Failed to inform his supervisor and/or any representative of the Defendant that he was having difficulty. (e) Failed to seek human and/or mechanical assistance. (f) Failed to seek relief from his duties. (g) Persisted with his duties when he was aware that they were occasioning discomfort and pain. (h) Failed to seek medical or first aid attention promptly. (i) Provided false information to an independent medical practitioner when he attended a medical assessment on or about 21 February 2012 and failed to disclose that he had a history of back injury, he had lodged a worker's compensation claim for a back injury and he had consulted with his general practitioner for chronic back pain in the 12 months prior to commencing work. 12A. In further answer to the whole of the Plaintiff's claim the Defendant says that it has no liability to the Plaintiff on the following grounds: (a) If the Court finds there was a risk of injury as alleged by the Plaintiff (which is denied): (i) The risk of injury was an obvious risk within the meaning of section 5F of the Civil Liability Act 2002. (ii) The Plaintiff is presumed to have been aware of the risk of injury. Particulars Section 5G of the Civil Liability Act 2002. (iii) In the circumstances, the Defendant did not owe the Plaintiff a duty to warn of the risk of injury. Particulars Section 5H of the Civil Liability Act 2002."
The question is whether the plaintiff has been contributorily negligent in the circumstances of the present case by failing to take the particularised steps against the risk of harm: see Section 5R of the CLA. Contributory negligence can defeat a claim: see Section 5S of the CLA. The question raised by Section 5R is whether a reasonable person in the position of the plaintiff, that is having the knowledge which the plaintiff had or ought to have had at the relevant time, was negligent: Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 at [217] per Hoeben JA (with whom Macfarlan and Ward JJA agreed).
In Verryt v Schoupp [2015] NSWCA 128 Meagher JA (with whom Gleeson JA and Sackville AJA agreed) stated as follows at [20]: "[20] The relevant statutory provisions are referred to in my judgment in Davis v Swift [2014] NSWCA 458 at [23]-[26], [28]-[29]: [23] Section 138(1) of the MAC Act provides that the "common law and enacted law as to contributory negligence" apply to an award of damages in respect of a motor accident, except as provided by that section. The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Sections 138(2) and (3) vary the enacted law; the former by requiring findings of contributory negligence to be made in particular cases; and the latter by describing in more general terms the matters to which regard may be had when apportioning responsibility. … [29] Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. As Basten JA observed in Gordon v Truong [2014] NSWCA 97; 66 MVR 241 at [15], a case involving a collision between a pedestrian and a motor vehicle, the existence and extent of a claimant's contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in the claimant's position would have taken against that risk. Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant's damages by reason of contributory negligence."
In Harrington Estates (NSW) Pty Ltd v Turner [2016] NSWCA 369 Leeming JA (with whom Gleeson JA and Harrison J agreed) stated as follows at [61]-[64]: "[61] The Club submitted that contributory negligence should have been in the order of 50%, rather than the 15% determined by the primary judge, on the basis that Mr Turner's failure was at least equal to any negligence on the part of the Club. Hassell submitted that his Honour's finding was open and should not be interfered with on appeal. Mr Turner submitted that this was a case of mere inadvertence and that there was no failure to take reasonable care. [62] The primary judge applied s 5R and the principles stated in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 and what had been said in Verryt v Schoupp [2015] NSWCA 128 at [20] as to the risk of harm and the precautions that a reasonable person in the claimant's position would take against that risk. His Honour rejected Mr Turner's submission that his actions were mere inadvertence, because there was "a clear difference in walking along a level surface area and stepping onto a kerb and into a garden bed". His Honour said that it was plain that this was not a path for pedestrian use, and concluded that Mr Turner had failed to take precautions to determine that it was safe for him to step backwards: at [157]. [63] It was not submitted that there was any error by the primary judge in the formulation of legal principle. Nor has any error been shown in its application. It was amply open to conclude that Mr Turner had failed to take reasonable precautions before stepping backwards into the garden bed. It was also open to his Honour to conclude that Mr Turner's failure was of relatively minor significance, in contrast with the design and occupation of premises with a sharp fall behind the car park. [64] No basis has been shown to interfere with the finding of contributory negligence. As was said in Nominal Defendant v Dowedeit [2016] NSWCA 332 at [132], referring to Podrebersek, "It is well-established that the apportionment decision of the trial judge is 'not lightly reviewed'"."
The question accordingly in the present case, is whether the plaintiff, being a person who has suffered harm, has been contributorily negligent in failing to take precautions against the risk of harm which materialised and resulted in injury. What would the precautions have been that a reasonable person in the plaintiff's position would have taken against the risk?
In relation to the particular of failing to inform his supervisor and/or any representative of the defendant that he was having difficulty, the evidence shows that the plaintiff reported what he regarded as an unsafe system of work to the defendant and to WorkCover: see Exhibit C. I accept the plaintiff's evidence in this regard.
In relation to particular (i) of providing false information to the independent medical practitioner before he commenced work with the defendant, this is clearly established on the evidence. However, I do not find this to be contributorily negligent or causatively relevant in circumstances where I have found that the plaintiff's back injury had settled by 2010: see my findings above.
The plaintiff undertook his duties with the system that was presented to him. He complained about that system, and no changes were made. He either chose to work with the system presented to him or he ceased working.
In relation to particulars (g) and (i) being persisting with his duties and failing to get medical aid promptly, it is true that the plaintiff said he felt pain and discomfort on 30 and 31 May 2012. However, I accept his evidence that he believed that he was able to continue his duties at the time. The plaintiff was an experienced picker-packer. The evidence shows that shifts well exceeding 7 hours were worked by the plaintiff on 30 and 31 May 2012.
In relation to particular (c) which provides that the plaintiff adopted an unsafe manner in performing his duties, the evidence shows that the plaintiff picked up two boxes of dog food at a time on 1 June 2012 even though he realised this could hurt his back, in order to keep up with the time allowed in the engineered standard: T494.22. In my view, this did involve a failure by the plaintiff to take reasonable precautions to avoid the risk of injury to himself. He should only have picked up one box of dog food at a time. This is even though others workers may have been seen adopting the same practice and the plaintiff had the engineered standards to consider.
Taking into account the submissions made and all the evidence, in my view, there should be a reduction of 20% on account of this contributory negligence in the present case. Picking up two boxes of dog food on 1 June 2012 was unreasonable in the circumstances and posed an obvious real risk of injury. A reduction is in my view warranted.

Obvious risk

The defendant asserts in its Defence that it has no liability to the plaintiff because the risk of injury was an obvious risk within Section 5F of the CLA and the plaintiff is presumed to have been aware of the risk of injury.
Sections 5F, 5G and 5H of the CLA provide as follows: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." "5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
Even if it is accepted that the injury was obvious and the defendant did not owe the plaintiff a duty to warn of the risk of injury (for example lifting two boxes of dog food at a time) this does not mean that the breach relating to the location and positioning of the dog food does not give rise to a breach for which the defendant is responsible.
I agree with the defendant, that the defendant was not obliged to warn the plaintiff of the risk of picking two boxes of dog food up at the same time. In my view the risk of injury of such a course was obvious as it is a matter that is patent and a matter of common knowledge even though it has a low probability of occurring unless the amount of boxes picked up were excessive (being three or more boxes). In any case, I have found that the plaintiff was trained in safe lifting practices.

The Section 151Z defence

The defendant pleads its defence under Section 151Z of the WCA in paragraphs 13 and 14 of its Defence as follows: "13. As employer, JW and/or Tru Blu owed a non-delegable duty to its/their employee, the Plaintiff, to safeguard his well-being by the implementation and enforcement of work practices and methods so as to obviate, reduce and eliminate foreseeable risks of injury. 14. In respect of the discharge of its/their non-delegable duty of care as an employer, JW and/or Tru Blu failed and was negligent, thereby causing the injury sustained by its/their employee, the Plaintiff. PARTICULARS OF NEGLIGENCE Exposed the Plaintiff to a risk of injury in the following circumstances: (a) Failed to give the Plaintiff any or any proper or reasonable instruction in respect of safety protocol and/or safety procedures associated with the duties performed. (b) Failed to ensure that the duties being carried out by, and/or with the involvement of the Plaintiff at the time of the injury, were carried out in such a way as to prevent injury and/or the risk of injury to the Plaintiff. (d) Failed to provide the Plaintiff with any or any adequate human and/or mechanical assistance. (e) Failed to provide the Plaintiff with any or any adequate supervision. (f) Failed to ensure that the Plaintiff was properly trained."
In my view, it is clear that Tru Blue as the plaintiff's employer, owed a non-delegable duty of care to its employee, the plaintiff, to take reasonable care to avoid exposing him to unnecessary risks of injury. The duty put forward in paragraph 13 seems to be suggesting an absolute duty to safeguard the well-being of the plaintiff as opposed to taking reasonable care. The duty, as stated by the High Court in Czatyrko, above, at [117], is not an obligation to ensure safety at work; it is an obligation to take reasonable care to avoid exposing a worker to unnecessary risk of injury.
Section 151Z of the WCA provides as follows: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement."
In State of New South Wales v Wenham [2016] NSWCA 336 Meagher JA (with whom Beazley A/CJ agreed) stated as follows at paragraphs [5]-[12]: "[5] Before considering the arguments made in support of that contention it is necessary to refer to the statutory scheme worked by s 151Z (set out in Payne JA's reasons at [29] below). The legislative history of that section is set out in my judgment in CSR Timber Products v Weathertex Pty Ltd (2013) 83 NSWLR 433 ; [2013] NSWCA 49 at [30]-[36]. [6] Considered alone, s 151Z(1) does not apply where the employer is liable to the worker for damages independently of the Workers Compensation Act. That is because its application depends, as provided by the language of the chapeau, on the injury for which compensation is payable being caused "under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury" (emphasis added). [7] In those circumstances s 151Z(1) regulates the enforcement by the worker of both the employer's liability to pay compensation under that Act and the liability of any other person to pay damages in respect of the same injury. It does so by paras (a) to (e1) which provide that as between that employer and any third party liable for damages, the primary burden to compensate in respect of the injury is to be borne by the third party. Those paragraphs are directed to ensuring that the outcome between the three parties - injured worker, employer liable to pay compensation and third party liable to pay damages - is the same irrespective of who the worker first proceeds against and recovers either damages or compensation. [8] Section s 151Z(1)(a) acknowledges that the worker may take proceedings both against the employer liable for compensation, and against any third party, and makes clear that the worker is not entitled to retain both damages and compensation. Paragraph (b) provides for any compensation to be repaid out of damages recovered from the third party and para (c) prevents the worker from recovering any such compensation if he or she has first recovered damages from the third party. In circumstances where the worker has not recovered damages from the third party, para (d) produces the same outcome as between the third party and employer as would be produced if damages had been recovered and para (b) or (c) applied. Finally, consistently with the operation of para (d), paras (e) and (e1) ensure that the third party has the benefit of any amount paid by way of indemnity, either by way of defence or in satisfaction of any judgment in proceedings brought by the worker. [9] Section 151Z(2) regulates the position where the worker is entitled independently of the Workers Compensation Act to recover damages both from the employer and from "a person other than the worker's employer". [10] It addresses, in the context of there being contribution claims available as between the worker's employer and any third party liable for damages in respect of the same injury, the fact that modified common law damages are recoverable against the employer in accordance with Pt 5 Div 3 of the Workers Compensation Act. Section 151Z(2)(d) provides that, as between the third party and employer as joint tortfeasor, the amount recoverable by way of contribution is to be determined as if the whole of the damages for which each was liable are to be assessed in accordance with Pt 5 Div 3. Paragraph (c) reduces the damages recoverable by the worker from the third party to take account of the lesser amount that the third party is entitled to recover by way of contribution from the employer because of that modified damages regime. [11] Finally, and significantly in the present context, para (e) addresses the circumstance that the worker does not commence proceedings against the employer in relation to its independent liability, but recovers compensation under the Act. In that event s 151Z(1)(d) (which as appears above entitles the employer or its insurer to be indemnified by the third party) is to apply "as if the worker had not been entitled to recover damages from that employer", but subject to the exceptions in s 151Z(2)(e)(i) and (ii). Those exceptions limit or exclude the right to that indemnity depending on whether the amount of workers' compensation paid by the employer or insurer exceeds the amount of the contribution that "could be recovered" by the third party from the employer as joint tortfeasor. [12] The significance of this last provision is that notwithstanding there being a difference in the language of ss 151Z(1) and 151Z(2)(a), the employer or its insurer by whom compensation has been paid is entitled to be indemnified by the third party liable, independently of the Act, for damages in respect of the same injury."
There was various evidence given in relation to the involvement of the plaintiff's employer, Tru Blue, at the plaintiff's workplace: 1. The plaintiff gave evidence that he registered with Tru Blue in January 2012, was called up by Tru Blue and was sent for the medical which he undertook: T 90-93; 2. The plaintiff was told by Matt from Tru Blue that he had been successful in obtaining the job and needed to attend the defendant's site for an induction. The plaintiff attended the site and Matt took the employees around and showed them the exits, the goods to be packed, the headset system and the pallet jack machines: T 94; 3. On occasions the plaintiff said that Matt from Tru Blue came up to him and told him to pick up the pace of his picking: T 101.22. The plaintiff also said he received texts from Matt from Tru Blue that it was necessary for him to pick up the pace if he wanted a permanent job: T 101.38; 4. The plaintiff gave evidence that Matt from Tru Blue was involved in obtaining his signature on the employee's site induction guidelines: T 109.20; 5. The plaintiff agreed that Matt from Tru Blue gave instructions and information to him in relation to safe manual handling at his induction 21 February 2012: T 235.21-.28 cf T 230.13-.20; 6. The plaintiff gave evidence that Matt from Tru Blue attended the defendant's premises on a weekly basis when new workers were inducted: T501.4; 7. The plaintiff gave evidence that he believed he told Matt from Tru Blue that he was lifting more than one box at a time: T510.10-.20; 8. The plaintiff denied that he went to a meeting before starting at Metcash with Matt from Tru Blue and Mr Miller from Metcash in which they gave him training about how to safely handle boxes: T 300.7. However, the plaintiff also conceded that he was previously aware of safe lifting practices. I have found above that the plaintiff did receive training in safe manual handling from Matt and Mr Miller; 9. The plaintiff gave evidence that he had never seen Matt from Tru Blue checking on the picking practices of the casual workers: T 307.29. The plaintiff said that he never saw Matt from Tru Blue checking on him in the four months that he was at Metcash: T 307.47; 10. Mr Bannerman said there were sometimes three but usually two supervisors on duty and denied that there could have been as many as ten supervisors on duty: T 376.12; 11. Mr Roberts gave evidence that he walked around the warehouse almost every day and observed pickers and packers in their tasks. He also gave evidence that supervisors were on duty consisting of 24 persons on any shift with 16 supervisors walking around the floor of the warehouse observing: T 44.31; 12. Mr Roberts also gave evidence that officers from Tru Blue were at the Huntingwood site every day and he observed them speaking to the labour hire employees, although he was not involved in this with them: T 51.49; 13. Mr Miller gave evidence that a representative from Tru Blue accompanied himself and other potential employees on the walk through where there was an induction: T 404.9. Mr Miller gave evidence that during the day there would be six supervisors and a warehouse manager on duty: T 405.28. This is different to Mr Roberts' evidence but I think it is more likely to be correct and I accept it; 14. Mr Miller gave evidence that the Tru Blue representatives were made aware of the pick rates at the defendant's premises. Mr Miller also said that on a daily basis he and a representative of Tru Blue would walk through the aisles and speak to the individual pickers and packers and explain to them the performance rate: T 437; 15. Mr Miller also agreed that he described the Engineered Standard to the representatives from Tru Blue and he represented to them that it was a safe system.
The issue is whether there should be a reduction in any damages to be awarded to the plaintiff under Section 151Z(2) of the WCA on account of a contribution of the negligence of the plaintiff's employer Tru Blue.
In Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338, Ipp JA (with whom Giles JA and Hunt AJA agreed) stated as follows at [18]-[19]: "[18] The mere fact that injury occurred on premises occupied by a third party does not mean that Gameco, as employer, had no duty of care to Mr Atkinson. For example, the content of the duty of care owed by an employer that operates a labour hire business is not diminished by the fact that the employees are sent off to work for customers that hire them: TNT v Christie (at para 67). Nevertheless, the fact that the premises are in the control of a third party will be a relevant matter when considering whether the employer has taken reasonable care for the safety of the employee: Glass, McHugh and Douglas "The Liability of Employees in Damages for Personal Injury" (2nd Ed 1979) at 54. [19] In Bourke v Victorian WorkCover Authority [1999] 1 VR 189 Winneke P (with whom Brooking JA and Buchanan JA agreed) said: True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100: Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances … (See also Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 121-2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91-2 per Walsh J). One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors."
In my view, relevant factors to take into account include the following: 1. Matt from Tru Blue was attending the defendant's premises on a regular basis for the induction of new employees; 2. Matt from Tru Blue was talking to its employees in relation to the pick rate on a frequent basis; 3. Representatives of Tru Blue were accordingly at the defendant's premises during an induction and would have seen other workers engaged in picking; 4. The premises were occupied and controlled by the defendant, not Tru Blue; 5. In my view it was reasonable for Tru Blue to inspect the defendant's premises to take reasonable steps to ensure that it was a safe place of work. There was no evidence before the court that it had done so in a formal sense; 6. In my view the risk to workers from picking heavy boxes of dog food from the confined slot underneath a 1.4 metre shelf was apparent. In my view a reasonable person in the position of the plaintiff's employer would have raised the issue with the defendant; 7. It seems unlikely that the defendant would have altered the system of work if Tru Blue had raised the issue with them. This is particularly the case in the light of WorkCover's response to the plaintiff's complaint in relation to the system of 1 May 2012: see Exhibit C.
In my view a reasonable employer in the position of Tru Blue, having undertaken a review of the premises for safety concerns, would have not made its employees available until steps were taken to remedy the placement of the dog food in either a 1.8 or two metre pick slot or in an open area to allow easy access to the heavier goods and clear supervision in relation to the number of boxes picked at any one time. This constituted a breach by it of its duty of care. I take into account that the defendant had the day to day supervision and management of the premises.
Taking into account all of these matters, in my view it is appropriate to reduce any damages that the plaintiff would recover from the defendant by the percentage amount that the plaintiff would have been entitled to recover from Tru Blue if he had sued them as a joint tortfeasor in accordance with Section 151Z of the WCA which I assess to be 20% in all the circumstances.

Damages

In summary, I have found: 1. The defendant has breached its duty of care to the plaintiff; 2. Causation has not been established; 3. There should be a 20% reduction to any damages awarded for contributory negligence; 4. There should be a reduction under Section 151Z(2) of the WCA in the amount of 20%.
I will now proceed to an assessment of damages in the event I am in error on the causation issue.
In relation to the injuries I have found arising from the accident the following is a summary: 1. I find that the plaintiff suffered a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue type injury and ongoing pain to the plaintiff of an intermittent type which stopped him working. I also find that the 1 June 2012 injury caused modest disc bulging. I accept that the plaintiff has had some continuing back problems, although not to the extent which he claims. The plaintiff's problems in his back do not involve an injury to the L5 nerve root and they are of a reasonably mild nature; 2. Apart from psychological issues, the plaintiff has according to the conclave report full capacity for employment without restrictions; 3. The plaintiff has a psychiatric condition arising from the accident being a persistent depressive disorder with a differential diagnosis with adjustment disorder. The plaintiff requires continued pain management. The plaintiff's current psychiatric condition is of a mild to moderate severity and he requires ongoing treatment of his depression for a period of six months to a year at least which may lead to positive results; 4. The plaintiff was clearly prone to, and had a history of, depression from his medical history from 2009-12.
In his report dated 2 March 2015, Dr Allnutt concluded: "In my opinion the injuries of 29 May 2012 and 1 June 2012 contributed significantly to his current mental state. …His disabilities impact on his capacity for employment, with reduced energy and motivation (which impacts on his potential to engage in the workforce), his poor self-esteem and demoralisation (which undermines his motivation to seek work), his cognitive difficulties and loss of concentration, all of which would impact on his performance at work."
I accept this summary of the plaintiff's current psychiatric position even though Dr Allnutt assumed a more severe back injury. However, I find that the psychiatric condition arose out of the plaintiff's back condition as set out in Dr Bodel's opinion. I also take into account the summary of the plaintiff's current position given by Ms Stylianou which I have referred to above and which I accept, in preference to that given by the plaintiff.
In my opinion, based on all the medical evidence, the plaintiff requires ongoing pain management and psychiatric management if he is to have any real prospect of returning to any work. In my view, from all of the evidence, the plaintiff's current psychiatric condition presently prevents his return to work to any suitable occupation.
The parties have each made written submissions in relation to the appropriate damages to be awarded. The following table sets out the written submissions made by the parties: Head of damage Plaintiff's submission Defendant's submission with alternative submission Non-economic loss 35% - $302,500.00 10% - Nil/28% - $84,500 Past out of pocket expenses $83,641.22 $10,000/$83,641.22 Future out of pocket expenses $30,378.00 Nil/$2,000 Past economic loss $184,872.48 $6,000/$58,000 Past superannuation $20,539.38 $660/$6,380 Future economic loss $523,719.00 Nil Future superannuation $57,718.80 Nil Fox v Wood $20,015.80 $20,015.80 Past care $15,651.25 Nil/$15,651 Future paid care $574,923.85 Nil/$8,385 Total $1,813,959.78 Section 151Z(2) deduction 20% 50% Contributory negligence Nil 25% Total $1,451,167.82 $36,675.80/$278,573.02 less 50% less 25%

Non-economic loss

The plaintiff's loss is to be assessed as a percentage of a most extreme case under Section 16 of the CLA.
On the conclave orthopaedic surgeon/neurosurgeon report the plaintiff's back injury has recovered and he is fit for work. Dr Bodel also says the plaintiff may have a slightly reduced work capacity. I prefer the conclave opinion to those opinions referred to in paragraphs 36-39 of the plaintiff's written submissions. This is because the conclave report is a detailed and considered report, was prepared following the preparation of other detailed reports by the three doctors and includes Dr Bodel who is the plaintiff's medico-legal orthopaedic surgeon and has reviewed him on a number of occasions. However, I accept the opinion of Associate Professor Boesel that the plaintiff has an entrenched pain disorder which requires careful management: see Exhibit A, page 455. The continuation of the pain disorder appears to be as a result of a psychological reaction following the initial back injury: cf plaintiff's written submissions, paragraph 52.
The plaintiff's non-economic loss should in my view be assessed on the basis of Dr Allnutt's view that the plaintiff has a persistent depressive disorder with a differential diagnosis of adjustment disorder and a pain condition requiring pain management and ongoing psychiatric assistance. There is some uncertainty about whether the plaintiff's condition will respond.
Taking into account all the evidence and the circumstances, I assess the present case at 28% of severity (as a proportion of a most extreme case) which equates to 14% of $605,000 being $84,500 (rounded down).

Past economic loss

The plaintiff worked various hours and for a differing number of days per week during his time at Metcash: Exhibit 12. He only worked more than 10 hours on one day on one occasion and often worked for less than 6 hours in a day. The plaintiff had a relatively patchy prior work history with lengthy periods of unemployment. This must be taken into account in assessing past and future economic loss: see defendant's written submissions paragraph 575.
I take into account the principles set out in paragraphs 569-573 of the defendant's written submissions.
The plaintiff gave evidence that he planned to work the rest of the year at Metcash and then finish his last two years of his motor mechanic apprenticeship: T110.10. The plaintiff's extreme interest in cars made that a likely target for him. There is no reason not to accept that evidence or to take the view that the target was not realistic.
Mr Miller gave evidence that in early to mid-2012 the policy of the defendant was to offer casuals permanent employment with the defendant after a 12 week probationary period based on a casual's absenteeism, performance and attitude: T478.30-38. The plaintiff's performance at the time seems to be good in relation to the engineered standard pick rate: Exhibit 11. There was no evidence suggesting absenteeism or other problems. The complaint by the plaintiff to WorkCover (see Exhibit C) would unlikely to be taken into account as the plaintiff had raised a safety issue.
Accordingly, I find that the plaintiff is likely to have been offered permanent employment soon after 1 June 2012, probably by 1 July 2012. Mr Miller gave evidence that permanent employees were paid about $22 per hour for a 38 hour week: T479.14-.17. This equals $836 per week gross or approximately $715.00 net. This equals $21,736 ($836 x 26 weeks).
From 1 January 2017 to the date of the hearing, in my view, the plaintiff: 1. Would have been a third year motor mechanic apprentice in 2013; 2. Would have been a fourth year mechanic in 2014; 3. Would have likely qualified as a mechanic and worked in that job from say 1 January 2015 to date. However, the completion of the apprenticeship by the plaintiff may have exposed him to some risks of unemployment.
The rates set out in Exhibit G for the relevant periods are: 1. Third year 2013: $692.10 per week gross; 2. Fourth year 2014: $718.60 per week gross; 3. Thereafter $783.30 per week gross.
In addition, the plaintiff's average weekly earnings should be allowed for the period 1 June 2012 to 1 July 2012. This, in my view, is a period when his back injury would have prevented him from working. The plaintiff submits that during the time he worked for the defendant the plaintiff earned on average $620 per week: Exhibit A, page 310, plaintiff's submissions, paragraph 63. I allow $2,400 for this four week period.
Due to the plaintiff's prior medical conditions and periods of unemployment up to 2012 and usual risks there should be a 15% deduction for vicissitudes.
I will leave it to the parties to calculate the damages under this head based on the above findings.

Past loss of superannuation

The calculation of past loss of superannuation at 11% of the past gross loss should be calculated following the calculation of the past loss of earnings.

Fox v Wood

The amount for Fox v Wood tax payments is agreed at $20,015.80.

Future economic loss

The parties' written submissions suggest under this head: 1. Plaintiff: $700 per week loss based on a 880.2 multiplier for 35 and a half years with a 15% deduction for vicissitudes totalling $523,719: plaintiff's submissions paragraphs 67-70; 2. Defendant: Nil as it is assumed that any incapacity for work only continued until Dr Bodel's assessment in 2015: defendant's submissions paragraph 580.
I take into account the following matters: 1. The authorities referred to in paragraphs 569-573 of the defendant's submissions; 2. The plaintiff has been certified by Dr Cameron in 2013 as having no current work capacity: Exhibit A, pages 423-442; 3. Dr Boesal's recommendation in May 2015 for multi-disciplinary pain management: Exhibit A, page 443; 4. Dr Allnutt's psychiatric opinion that the plaintiff's disabilities impact on his capacity for employment: Exhibit A, page 44 (report dated 2 March 2015); 5. The similar opinion of Dr Allnutt in the conclave psychiatric report dated 4 November 2016: Exhibit 6, page 5; 6. The evidence set out above from Ms Stylianou of the plaintiff's current restrictions; 7. The plaintiff's presentation at the trial; 8. The plaintiff's limited work history only in manual jobs, including the plaintiff's unemployment for fairly lengthy periods including prior to commencing work for the defendant; 9. Ms Stephens' comments on the plaintiff's mental state and fatigue severity state: Exhibit A, pages 87-89; 10. Report of Ms Michelle King, occupational therapist dated 3 November 2016 particularly at paragraphs 5.1.3 - 5.1.3.1 Exhibit 3, pages 322-323; 11. The fact the plaintiff has not worked for five years; 12. All of the medical evidence; 13. The plaintiff's medical history and employment history prior to February 2012; 14. The parties' written submissions.
I also take into account that following a period of pain management and the recommended psychiatric/psychological review (Dr Allnutt, Exhibit A, page 44) the plaintiff's condition may improve if his symptoms are treated thus allowing some part-time work: see Dr Allnutt, Exhibit A, page 43, paragraph 3. However, there is a degree of uncertainty in this.
In the light of all these matters, in my view the plaintiff's future economic loss for loss of earning capacity should be allowed at $300 per week. The plaintiff is 31, having been born in October 1985. Having regard to his employment history in blue collar work I think it is highly unlikely that he would have worked beyond 65 years of age. I therefore allow $219,504 (33 and a half years = multiplier 860.8 x 300 = $258,240 - 15% deduction for vicissitudes). In selecting $300 per week I have made an allowance for the plaintiff returning to work in some capacity after psychiatric/psychological treatment as recommended.

Past out of pocket expenses

The plaintiff's past out of pocket expenses are agreed at $83,641.22.

Future out of pocket expenses

I refer to the various written submissions of the parties: plaintiff's written submissions paragraphs 61-62; defendant's written submissions paragraph 568.
I agree with the plaintiff's written submissions that an allowance should be made for future psychiatric treatment, a review of medication, future medication, future psychological consultations and pain management: see report of Dr Allnutt at Exhibit A, page 44. However, I consider that with appropriate treatment the plaintiff's need for lifetime doctors' visits and medication for pain management and depression is likely to be avoided.
Taking into account all the evidence and the submissions, I would allow a buffer under this head of $20,000.

Domestic assistance

The plaintiff makes no claim for domestic assistance to 31 July 2015: plaintiff's written submissions, paragraph 74.
Since 1 August 2015 the plaintiff has lived with Ms Stylianou. The evidence shows: 1. The plaintiff completes very few domestic tasks around the house apart from simple sweeping, simple cooking and filling the top drawer of the dishwasher; 2. Ms Stylianou does all the rest of the cleaning, washing, cooking and tidying. She does not have time to complete gardening/mowing as she works fulltime and is busy with the other domestic tasks; 3. Ms Stephens in her report allows for 6.25 hours per week for the past and 11.75 hours per week for the future: Exhibit A, pages 89-94. However, this is primarily based on Mr Williams' alleged back condition. It otherwise is consistent with the evidence; 4. Ms King in her report relied on by the defendant only allows for six hours for past gratuitous care: Exhibit 3, page 324. Ms King found that during her assessment the plaintiff was "pain focussed and task avoidant": Exhibit 3, page 301, paragraph 2.6.3.
Ms King stated that Ms Stephens' assessment of the plaintiff did "not differ significantly from my own": Exhibit 3, page 315. However, Ms King said that Ms Stephens appeared "to assume a causal link between the plaintiff's current symptoms and [the] subject incident without any attribution to his pre/co-morbidities" (Exhibit 3, page 315). Ms King noted that during her assessment the plaintiff "appeared to be in considerable pain and presented as fatigued with poor concentration": Exhibit 3, page 322. Future care was not recommended by Ms King "on the basis of available evidence of injury confirmed as arising from the subject incident": Exhibit 3, page 323;
In my view, the evidence of Ms Stylianou as to the plaintiff's condition is significant. I accept her evidence as reliable.
Taking all the evidence into account I allow the following: 1. Six hours per week from 1 August 2015 to 26 May 2017 at $26.36 per hour: Section 15(4) and (5) of the CLA. I am satisfied that many tasks are performed by Ms Stylianou in circumstances where it would have been expected that the plaintiff would have performed those tasks but for his injuries. This totals $15,002.60 ($26.36 x 6 = $158.16 x (664 ÷ 7) = $15,002.60); 2. A buffer of $50,000 for future domestic and commercial assistance on the basis that it is provided for 8 hours per week for 1 year (allowing an amount for commercial gardening, lawn mowing and heavy work) reducing after that to a likely 6 hours per week for an uncertain period while the plaintiff rehabilitates into likely part-time work and is able to perform more domestic tasks. In my view the need for this is established by the evidence.
The total allowed for future domestic and commercial assistance is $65,002.60.

Contributory negligence

As found above, the reduction should be 20%.

Reduction on account of Section 151Z of the WCA

As found above, the reduction should by 20%.

Disposition

I make the following orders: 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. 3. The parties have leave to apply on two business days' notice to vary the costs order in (2) above. 4. Exhibits are to be returned after 28 days.

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: 26 June 2017

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (32)

Cited By (1)