Woods v Murray River Council

The issues

1. The issues are as follows: 1. The circumstances and directions given to the plaintiff prior to the incident that caused the workplace injury. 2. The circumstances of the incident that caused the workplace injury. 3. Whether the workplace injury arose out of a breach of the duty of care owed by the defendant to the plaintiff as the plaintiff's employer. 4. If question (c) is answered in the affirmative, whether the plaintiff was contributorily negligent. 5. The extent of any entitlement to work injury damages (being economic loss only) with reference to: 6. i) The plaintiff's likely earning capacity but for injury with the defendant and in concurrent employment; and 7. ii)The impact of the workplace injury on the plaintiff's past, present and future earning capacity.

The plaintiff's injury

1. The plaintiff, who is currently 54 years of age and has always lived in the small Victorian town of Echuca, had been in continuous employment after leaving school in Year 11. He commenced full-time employment with the defendant in 2002. As well as his employment with the defendant, he had part time work; in particular, he was a member of the New South Wales Fire and Rescue Brigade, working when required for the local community attending to fire emergencies. He held other permanent casual employment on the weekends. All the witnesses described him as an honest, capable, confident and willing worker who enjoyed excellent health.
2. The principal factual circumstance the subject of challenge is whether or not, when the plaintiff injured his back while transporting lengths of PVC piping to a trench, there was a backhoe available on site which the plaintiff and his fellow worker, Mr Russell Anderson, not only could have but should have used for transporting these pipes, which are accepted as being too heavy for manual lifting. Both the plaintiff and Mr Anderson say that, despite their complaints to the supervisor, no backhoe was onsite and that they were told to carry the pipes by hand. The third person at the site, Mr Sanderson, claimed that there was a backhoe, as did the two Council employees who came to the site after complaints from the plaintiff's co-worker.
3. Even on the evidence of the defendant's witnesses, there were clearly problems with the system of work on the day of the injury, which had resulted in complaints from the plaintiff and Mr Anderson both to Mr Sanderson and, on the defendant's evidence, resulted in a visit to the site by Mr Connell at about 10.00 AM on the day of the accident. Mr Connell's version of events is not supported by other witnesses, including the defendant's witnesses, and is inconsistent with what little contemporaneous documentation has survived.

The plaintiff's evidence

1. The plaintiff told the court he grew up and worked his entire life in and around the small Victorian town of Echuca, which is on the banks of the Murray River (where it is a twin town with Moama, on the New South Wales side of this river). It is a remote area, being more than eight hours by car from Sydney and two hours from Albury. The plaintiff, after leaving school at the end of Year 11, entered into a carpentry apprenticeship and thereafter worked for a concreting company before setting up his own contract carpentry business. He also worked in a variety of country town-style part time positions, such as working in local shops, as well as participating in the Fire and Rescue team as a retained fireman.
2. As noted above, the plaintiff commenced employment with the defendant in 2002. As a fit and healthy person, he took on manual labouring tasks for the defendant, as he had for previous employers, without difficulty. There was a period of time during which he suffered from some bullying in about 2010, and the plaintiff readily conceded psychological issues as a result. However, the condition was not incapacitating, and the evidence (including the expert evidence of Dr George and Dr Takyar) confirms that the plaintiff had largely recovered from these events as at the time of the accident.
3. Work was scheduled to commence on the site on 10 March 2014, the day before the accident. The labour crew consisted of three persons: the plaintiff, Russell Anderson (usually a "ganger" but on this occasion working as a labourer) and Rob Sanderson (the supervisor or "ganger" for this project). The Council was installing sewage pipes and the workmen had to lay the pipes along a trench dug by Mr Sanderson, using an excavator. The pipes had already been delivered.
4. The plaintiff said that all three of the workers at the site carried out a preliminary inspection prior to commencing work. On arrival, the plaintiff and Mr Anderson discovered that the drainage pipes had been left in a pile on one side of the road and that only the excavator (and not a backhoe as well) was present. He says that this was not only raised with Mr Sanderson but discussed as part of the toolbox meeting, for which Mr Anderson kept notes.
5. Mr Ashley Prime gave evidence for the defendant that, in his capacity as the supervisor of the work generally, he had attended the site at least twice on the first day of work (10 March 2014): T 206 - 210. How many times he came, and what he said, are disputed by the plaintiff. The question of who else was on site, and when, apart from the work team of three persons, would be relatively easy to determine if the documents relating to the toolbox meeting, any induction and risk assessment were available. Mr Anderson was responsible for the induction of persons onto the worksite and said in his evidence that it was his practice to note everyone at the site. This is an important safety requirement, as any workers coming onto the site, whether they were entitled to be there or not, needed to be noted as having been present as well as provided with any necessary safety equipment such as a hardhat: "Q. It wasn't your role to induct someone to the site. A. We are a team, and if someone comes onto the site, we can induct a person onto the site, because we are the workers. And if a person comes onto the site, we have to induct them to tell them the hazards, wear PPE, wear a hat." (T 111, lines 16 - 19)
6. None of these records for either 10 or 11 March 2014 are available, although the defendant was aware from the day of the accident that an injury had occurred.
7. Mr Anderson and the plaintiff, even on the defendant's case, had a lot to complain about. The first problem was the location of the pipes, which should have been laid out end-to-end near where the job was to be done so that they could be manipulated directly into the trench. Instead, these pipes had been left in a pile some distance away from the trench and would therefore need to be transported.
8. The plaintiff described the matter being raised at the toolbox meeting as follows: "Q. You mentioned that the three of you, to the best of your recollection, conducted a toolbox talk. A. Yes. Q. The purpose of the toolbox talk? A . To work out what mechanical devices we needed, what equipment we needed, to talk about where the pipes were. Q. You said "talk about where the pipes were". What did you mean by that? A. The pipes had already been delivered by another source of transport, not by the shire, and the pipes were delivered away from our work site in the distance. Q. So the pipes were in a stockpile, were they? A. Yes. Q. I showed you a photo a moment ago of a collection of pipes. That was the collection of pipes, was it? A. Well, it was a collection of pipes. Q. So a similar sort of setup to what that photo demonstrated? A. Yes. Q. They were in the one spot? A. Yes. Q. You've identified them as being too far from where the work was to be completed. Is that what you said? A. Yes. Q. What's the usual practice with respect to where the pipes are positioned? A. Usually the pipes are dropped off closer to our worksite or closer to where the work is supposed to be taken out. Q. You've indicated a moment ago that the road was closed. A. Yes. Q. I assume that means that if, rather than having one stockpile, you could potentially have had a number of stockpiles along the road. Is that what you're saying? A. Yes, that's correct. Q. Given a trench was being dug, what's the usual practice about where you position the pipes with respect to the trench, or where the trench is supposed to go? A. Usually - the pipes are usually dropped off closer which saves manual handling and saves time. Q. Having identified this, was it just you that pointed this out or did anyone else identify this as being an issue? A. Russell Anderson and myself. Q. I take it you were speaking to the ganger about this, were you? A. Yeah, we spoke to the ganger and put it down in our toolbox meeting folder and - and when we'd done a risk assessment we noted in our risk assessment notes. Q. The positioning of the pipes? A. Yeah, about the position of the pipes, they should have been dumped closer to where the work is being carried out." (T 28, line 19 - T 29, line 28)
9. The evidence of the plaintiff and Mr Anderson was that during this site meeting, not only the positioning of the pipes was identified as a problem, but also the absence of a backhoe: "Q. Did you note anything else in the risk assessment? A. We - where we noted that there should be a mechanical device to help us with our manual labour" (T 29, lines 30 - 32)
10. The plaintiff said that only an excavator has been delivered on-site, and that there was no other plant (such as a forklift or backhoe) on the site at all (T 29). This was a problem, because the usual process for laying pipes had not been followed. The usual process was for pipes to be placed in bundles closer to where the work was to be performed: "Q. Could you explain how generally the process works as far as laying pipes in a trench is concerned? Not on this occasion, how it usually works? A. Depends how much room we got at our usual jobs. We usually get the pipes dumped in bundles closer to where we're performing the work. Q. And I take it the excavator digs the trench? A. Yeah. Usually before we start the digging, a excavator spread the pipes along the trench so the excavator then excavates a trench, and then it kind of breaks the pipe and lower it into the trench. Q. When you say the excavator spreads the pipes along the trench, you mean along the length of the trench? A. Yeah. Say we're digging 20 metres a day, we spread the pipes out 20 metres, and leaves enough room to walk the excavator. Q. So the trench is dug? A. Yes. Q. Sand is laid? A. Yes. Q. Then you attach a sling to the excavator, do you? A. Yes." (T 30, lines 18 - 38) "Q. The excavator has already laid the pipes along the length of the trench? A. Yes, that's correct. Q. So the excavator digs the trench? A. Yes. Q. Sand is put into the bottom of the trench? A. Sometimes. Depends when, where we're working, as to whether we're digging in - in a sandy base, so we use the - the sand, the dirt, that's already in a trench to lower the pipe onto that base. Q. How do you lower the pipe? A. We - we take the - Robert Sanderson takes the digging bucket off the excavator, we put a lifting hook on the arm of the excavator, wrap a sling around the pipe, and hook the sling on to the lifting hook on the excavator arm, and then two of us, one at each end, we guide it into the trench. Q. Is there a reason why you don't lift the pipe in manually? A. Because they're too heavy. Q. So we have the excavator on site? A. Yes. Q. We have the digging bucket on the excavator? A. Yes. Q. And we have a hook which can be attached to the excavator? A. Yes. Q. We have a sling which can be attached to the hook? A. Yes. Q. And the sling is used to manoeuvre the pipe from the ground across into the trench? A. Yes, that's correct. Q. Now, that's the usual practice? A. Yes. Q. What were you directed to do on this occasion? A. We - while the excavator was excavating the trench, Russell Anderson and myself would walk up, pick up the pipe, bring it down to the trench where the excavator was excavating. We'd lay the pipe beside the trench, and then, when the trench was ready, Robert would drop his bucket off, we'd put the lifting hook on the excavator, attach the sling to the centre of the 6 metre pipe, and then hook the sling onto the pipe. Q. So the difference on this occasion was the moving of the pipe from the stockpile to where the excavator was to lift it into the trench? A. Yes." (T 31, line 13 - T 32, line 12)
11. The plaintiff estimated the weight of the pipes to be between 60 and 70 kg. As noted above, it is common ground that they are too heavy to be lifted. He had only done so on one or two occasions beforehand: "Q. Had you ever needed in the past ever to lift these pipes manually? A. Yes. During some - a big storm, we got sent out to throw some of these pipes on top of our work truck and deliver them to several sites around Moama. Q. And how often does that happen? A. I've only had it on two occasions while I was employed on the shy [sic]." (T 32, lines 23 - 29)
12. The pipes were not designed to be carried; they had a hard ring on the end and there were no handholds or lifting lugs that could be used to hold onto them.
13. The plaintiff described how he and Mr Sanderson were told that, because the backhoe was not available, they would have to carry the pipes themselves. In response to their complaints, Mr Sanderson, who was sitting in the excavator for the whole of the time, responded, "Well, that's our lifting technique, while I'm digging, you and Russell can bring the pipes down" (T 34).
14. The plaintiff described what they did as follows: "Q. How would you hold them? Would you put them on your shoulder? What would you do, how would you move them? A. Myself and I - and Russell, I'm sorry, your Honour - I put my left hand, I was up the front of the pipe, left hand in the collar, and Russell put his hand in where you see that black rubber ring, and we'd carry it down to the - where - where the trench was being excavated. Q. So you'd have an end each, basically? A. Yes. Q. And you'd cup your left hand and grip it as best you could? A. Yes. Q. From the top of the pipe? A. Aren't they-- Q. The top of that collar there? A. Yes. Yep. Q. If you just put that to one side. Did you at any stage discuss with Mr Sanderson any difficulties that you might have seen with transporting those pipes in that fashion? A. Russell and - and I would comment that these pipes are too heavy to lift, it's going to cause an - an injury." (T 32, line 50 - T 33, line 23)
15. These problems were recorded in the risk assessment by Mr Anderson, as the same procedure was repeated the following day as there was still no backhoe. The plaintiff said that he and Mr Sanderson both complained again, before they started the day, at the toolbox meeting, before starting work. It was general practice for the toolbox meeting for there to be a paper risk assessment recording problems, which was a document handed in each week to the supervisor, Mr Ian Keech. No such document has been produced.
16. Mr Sanderson did not offer to help the plaintiff and Mr Anderson. Mr Sanderson was the only one of the three who had an excavator licence and, as he was the Ganger, he stayed in his excavator while the others worked, as "we just were the boys" (T 34). Mr Sanderson continued to dig the trench ahead of the pipes, but was in a position to see what the plaintiff and Mr Anderson were doing, because the mirrors on his excavator meant that he could see them coming behind.
17. The plaintiff said that Mr Ashley Prime came to the site on the first day while the gang was working there, for the purpose of seeing how things were going. He said that both he and Mr Anderson said to Mr Prime that they should have a mechanical device to help with the pipes and to take the workload of lifting them. He said that Mr Prime replied "Well you'll be right, this is how we doing it" and then left. The pipes were carried to the excavated trench for the whole of the first day of work. About six or seven pipes were laid in this fashion.
18. According to the plaintiff, on the second day, work commenced at 7 AM and, after the toolbox meeting (where there were again complaints about the absence of a backhoe), the lifting of the pipes by hand so that they could be slung into the pit by the excavator continued. As well as carrying the pipes, the plaintiff and Mr Anderson were taking height measurements in the trench, to keep the excavator's trench-digging level. (According to the defendant's work safety officer, Mr Connell, however, he had been urgently called in because there was no sling for lowering the pipes; at the time given on the accident form as being the time the plaintiff was injured, he claims he was at the site demonstrating how to use the backhoe to lower the pipes. The plaintiff's denial of this is set out in more detail below).
19. At approximately 10 AM or shortly afterwards, when the plaintiff picked up his end of a 6 m pipe in the same manner that he had adopted the previous day, he felt a sharp pain through his left arm and up through his neck. He stopped what he was doing and indicated to Mr Anderson that he had been injured. Mr Anderson immediately notified Mr Prime, and no more lifting of pipes occurred that day.
20. The plaintiff said that Mr Prime came to the site and was given a report of how the accident had occurred, following which the plaintiff completed an accident report form and gave it to Mr Sanderson (T 40): "Q. I apologise if you're repeating yourself, but I think you did say in your evidence that this occurred at about 10am? A. Yes, that's around 10am. Q. What time after that did you have these conversations with Mr Anderson and Mr Sanderson? A. I had it as soon as it happened. Q. Now, when you knocked off that day did you see Mr Prime at all? A. Mr Prime turned up and we gave him here [sic] in a report. Q. Then what did you do once you've knocked off? What did you do? A. I went and made a doctor's appointment for the following day. I couldn't get into the doctor's that day."
21. The plaintiff sought medical advice and did not return to the job in question.
22. The plaintiff stated categorically that there was no backhoe on the site, adding that, if there had been a backhoe, they would have used it to bring the pipes to the site.
23. The plaintiff denied that Mr Connell, the work safety officer, came to the site at all, and denied that Mr Connell had conducted a demonstration for the plaintiff and the other two workers to show them how the slinging process was to be safely done (T 40). Not only Mr Anderson but also the defendant's witness Mr Sanderson deny that any such occurred.
24. In cross examination, the plaintiff adhered to this description of events. It was put to him that he has suffered some memory loss as he had responded to some of the questions by saying he could not remember back that far (T 85). He said that, while he did have some memory loss, he was certain that Mr Connell had not been at the site and that there was no backhoe. The question is whether I accept his denial of these events, which is supported by the evidence of Mr Anderson, or I accept the evidence of Mr Prime and Mr Connell for the Council to the contrary (it appears to be conceded by the defendant that the hazy memory Mr Sanderson has means that his evidence is of little value).
25. The plaintiff's evidence concerning his subsequent disabilities and treatment is set out in the section of this judgment on quantum.

The evidence of Mr Anderson

1. Mr Anderson, who corroborated the plaintiff's evidence on every issue, was an articulate witness who displayed a clear memory of all the events in question. He gave concise but informative answers to questions, made concessions where appropriate and restricted his answers to the questions asked.
2. Mr Anderson stated that, while Mr Sanderson was the ganger for this project, he was responsible for the preparing of the risk assessment and the report which was provided to Mr Prime. He was also responsible for the induction of persons onto the worksite, including keeping all the paperwork prepared. The induction records form part of an important site safety regime, as any persons coming onto the site, whether they were entitled to be there or not, needed to be noted as having been present as well as provided with any necessary safety equipment such as a hardhat.
3. As noted above, no induction records or risk assessments for this site are available, although the defendant was aware from the day of the accident that an injury had occurred.
4. Mr Anderson generally worked as a ganger, but on this occasion he had been allocated to work as a labourer under Mr Sanderson: "Q. As was Mr Woods. Okay. Now, when you first got to the site which was on Boundary Road, Moama, did you do what you've just described as far as making an assessment of the site? A. I believe on the day we - the morning we arrived the first day, we do toolbox meeting, they call it, at the time. In which case, all that assessment was done and paperwork filled out accordingly. Q. Dealing with the assessment that you made, was there anything particular about the site that you recall that was discussed in the toolbox talk. A. Yes. The location of the - the pipes in relation to the working being carried out. And Q. Sorry, just pausing there. What did you notice about the pipes in location to where the work was being carried out? A. They were stacked at - at the wrong end of the job, I believe. And all stacked together rather than placed along the job site. So they had to be carried from quite a distance to get to the job. Q. So two aspects. Why was that a concern for you? A. It's - was no mechanical device for carrying them on site so, you know, that became a first concern. And also it's unproductive to have pipes that far away." (T 149, lines 24 - 44)
5. Mr Anderson was emphatic that there was no backhoe and that, in response to his complaints, he had been told that the pipes had to be carried manually: "Q. Without explicitly saying it, Mr Prime, suggests that there was a backhoe on site on 11 March. Do you agree with that? A. Absolutely not. Q. He also says, "I'm unable to explain why Darren would have moved any of the pipes manually." Can you provide an explanation as to why Darren Woods was moving the pipes manually? A. We were instructed that a backhoe or a forklift was not available and that that was the only option, and to just do it." (T 156, lines 26 - 34)
6. Mr Anderson said that it was Council's practice, when equipment was being sent to a job, for Council to keep a detailed manifest or record of precisely what equipment had been sent (T 156). No such manifest has been provided.
7. Mr Anderson confirmed that the first problem was that the pipes had been taken to the wrong place and that the second problem was the absence of a backhoe to lift them. He immediately complained to Mr Sanderson. He said that, in response to his complaint, he had been told by Mr Sanderson to carry the pipes by hand: "Q. Mr Anderson, you told us about the site inspection; the preparation of the document; the taking control of the document; the identification of the fact that there was no lifting device there, which concerned you both from a manual handling point of view, but also from a time point of view. But having raised those with Mr Sanderson, did he give you any instructions? A. We were instructed, at the time, that a backhoe was not available, and just to manually lift the pipes into the site. Q. Okay. So, you then got about doing the job. A. Yes. Q. You and Mr Woods did the best you could to get the pipes from where they were stored, down to where Mr Sanderson was digging the trench. A. Correct." (T 151, Lines 18 - 31)
8. Mr Anderson was familiar with these kinds of pipes, from working on other gangs, and was able to give their weight with some precision: "Q. No. Was there ever occasion where you had to manually move pipes of this type? A. Yes. Q. When was that? A. In emergency situations, on a couple of occasions over the course of the years, we have had to manually lift these pipes under flood conditions, or emergency conditions only. And it was from the truck, onto the ground, and just positioned, not carted distance. Q. So, you were familiar with these pipes, were you, even though you worked in a different gang? A. Absolutely, yes. Q. Now do you recall the length of the pipes? A. Yeah. Believe they were six metres long. Q. Yes. And were you able to estimate as best you could what you thought the weight of the pipes were? A. A minimum of 80 kilos, between 80 and 90 kilos each, I believe. Q. And you say that just guesstimating? A. No. I - I - I don't want to be precise, but I'm pretty sure they probably weight about 83 kilos, to be precise. Q. Okay. As far as gripping the pipes are concerned, how would you do that? A. On that job, we would handle them by hand. Q. Do they have any lugs or grip? A. No. They were perfectly round, smooth, plastic pipes, rough cut ends, and - yeah. There were no lifting points, no holes, no handles." (T 153, lines 8 - 37)
9. Mr Anderson said that it was on the second day, while they were carrying out work as they have been instructed to do by Mr Sanderson, that the plaintiff had suffered an injury just prior to the smoko at about 10.00AM, a time corroborated by the accident report. He said that they told Mr Sanderson "straight away" (T 154). Mr Sanderson contacted Mr Prime to explain that the plaintiff had suffered an injury and work on the job site was effectively stopped at that point. Mr Anderson said he did not return to the site on the following day and that was effectively the end of his involvement in this job.
10. Mr Anderson confirmed the plaintiff's evidence that Mr Connell did not come onto the site. If anything, he was more definite than the plaintiff about this, in that he responded "Definitely not" (T 155, line 14). He added that in fact Council had already held a slinging demonstration about one month prior to the incident, after another worker suffered a crushed leg: "Q. Have you ever had any discussion or instruction in relation to slinging when working at council? A. We had a - months prior, we had an incident with a concrete pipes, and we had a slinging demonstration as far as with the lifting change for the concrete pipes, but that's the extent I can recall. Q. Do you know what prompted that? A. It was a workplace incident where a pipe fell from a sling - from a grab, they used to carry them from two hooks on either end of the large concrete pipes, and it swung under motion and fell off and crushed a guy's leg. Q. Could that have been in May 2013? A. It's a very good chance, yes. Q. And you would've A. I remember the person but not the timing. Q. You would've done it with Mr Woods, Mr Sanderson, and Mr Prime. A. And possibly a - a - another one or two operators. Q. Maybe Mathew Carney(?) and Roy Maiden(?). A. And, sorry, David Vivas(?), possibly. Q. You'd be comfortable with it being in May 2013. A. Thereabouts, yes." (T 155, lines 16 - 40)
11. This evidence is a good example of Mr Anderson's excellent memory and the care he took in giving his answers, making concessions when appropriate and providing what information he could in a clear and concise form. It also confirms the likelihood of all Council workers being particularly careful about having a sling to use, since having a work colleague's leg crushed some weeks beforehand was not an incident his fellow workers were likely to forget.
12. Mr Anderson described what he said and did at the site when making his assessment was as follows: "Q. As was Mr Woods. Okay. Now, when you first got to the site which was on Boundary Road, Moama, did you do what you've just described as far as making an assessment of the site? A. I believe on the day we - the morning we arrived the first day, we do toolbox meeting, they call it, at the time. In which case, all that assessment was done and paperwork filled out accordingly. Q. Dealing with the assessment that you made, was there anything particular about the site that you recall that was discussed in the toolbox talk. A. Yes. The location of the - the pipes in relation to the working being carried out. And Q. Sorry, just pausing there. What did you notice about the pipes in location to where the work was being carried out? A. They were stacked at - at the wrong end of the job, I believe. And all stacked together rather than placed along the job site. So they had to be carried from quite a distance to get to the job. Q. So two aspects. Why was that a concern for you? A. It's - was no mechanical device for carrying them on site so, you know, that became a first concern. And also it's unproductive to have pipes that far away. So Q. So that's a time thing as well. A. Yeah. Q. So A) Excessive manual lift, and 2. Time constraints. A. Yeah. Q. So that's identified on the document? A. Yes. Q. As you've said that documents then given to the ganger. That's Mr Sanderson. A. That's correct. Q. Thereafter, Mr Sanderson takes control of it. A. That's right. Q. Did you have any discussions with either Mr Woods or with Mr Sanderson about these matters that formed part of the general discussion? A. It is - it is - yeah, the morning of - each they just - the whole entire team, goes - fills out those toolbox meeting checks. And that assessments all done at that time, so everybody is involved with that process. Q. The pipes were there, and there was an excavator there. A. 20 tonne excavator on site, yes. Q. Your work truck was there. A. And - the - the work truck in which we travelled to and from the work site in, yes. Q. Any other plant or equipment? A. No. Q. Was there a Bobcat there? A. No." (T 149, line 24 - T 150, line 30)
13. This was later corrected as being a backhoe, not a bobcat.
14. Mr Anderson described the response to his complaints as follows: "Q. Mr Anderson, you told us about the site inspection; the preparation of the document; the taking control of the document; the identification of the fact that there was no lifting device there, which concerned you both from a manual handling point of view, but also from a time point of view. But having raised those with Mr Sanderson, did he give you any instructions? A. We were instructed, at the time, that a backhoe was not available, and just to manually lift the pipes into the site. Q. Okay. So, you then got about doing the job. A. Yes." (T 151, lines 18 - 27)
15. Mr Anderson adhered to this evidence in cross examination. He was definite in his denial that a backhoe was on-site: "Q. Wasn't the sand being moved around by mechanical means? A. No. It was - there was no other machine on site other the excavator. Q. There was a backhoe. A. No. Q. To move the pipes. A. There was - there was no backhoe on site. Q. The backhoe had been there with the excavator. A. It may have been previously, but was not there on the days that we worked onsite. And we were told it was unavailable when asked for, in which case were laying the pipe without the backhoe to lay the sands. And the excavator was doing its job to pick up whatever sand and was levelling the floor out as best they could for us to lay the pipes within. Q. So you reject, I take it, that a backhoe was being used with a strap to bring them over. A. Absolutely. There was no backhoe onsite. Q. How did the pipe get from where, you say you laid it by hand beside the trench, how did it get into the trench? A. By the excavator. Excavator manually lifted it in. Q. By you having a strap attached. A. That's correct. Q. So if I was to suggest to you that Mr Sanderson never directed you to use manual means to carry the pipes, you would reject that, would you? A. Absolutely. Q. You see, wasn't it the case that Mr Connell came to the site and explained that the backhoe was to be used and the strap was to be used with a backhoe to move the pipes? A. Sorry Q. Wasn't it the case that Mr Connell came to the site? Damian Connell. A. No." (T 159, line 38 - 160, line 25)
16. Mr Anderson's denial of ever seeing Mr Connell on site on either of the two days while the pipelaying work was being carried out is compelling. He pointed out that pipes had been moved on 10 March as well as the 11th. As there had "definitely" (T 162) been pipes laid on that day, Mr Connell's description of coming urgently in response to a complaint, to show the workers how to lift pipes using a sling, would have been a demonstration occurring a day after this process had commenced. Although Mr Todd put to Mr Anderson that there was no movement of pipes on the day before, Mr Anderson denied this (and I note this allegation was not put to the plaintiff). In addition, Mr Anderson was firm about the accuracy of the time of the accident as recorded on the accident report. Mr Connell's asserted urgent half-hour trip to the site would have put him there at around the time the accident happened or indeed afterwards (taking into account his drive to the Bunnings store at Moama).
17. Mr Anderson was also emphatic about his role as recordkeeper in relation to the site induction and risk assessment, saying that "we filled out the paperwork accordingly every day" (T 163). I accept that evidence and find that these records were kept by him and forwarded to the appropriate persons in Council. Although it was not put to him in terms, I am satisfied that he would have exercised some care with these documents, given that the plaintiff had suffered an injury.

Mr Sanderson

1. The third worker on the site was Mr Sanderson, who was in charge. While observations of demeanour, particularly with witness in question is giving evidence from a remote location, should be treated with care, it was obvious from his manner in the witness box that he was in a state of some stress. As Mr Todd notes in his submissions, he made frank admissions that his memory was, to use his own description, "very sketchy". That certainly was the case, as he could not remember the following: 1. Whether he was driving a backhoe or an excavator on the day in question. 2. What Mr Anderson and the plaintiff were doing, in terms of how they were carrying the pipes, even though it was his job to supervise them and he could see them in his rear vision mirror. He said that he did not remember seeing the accident at all. 3. Whether Mr Connell had attended the site, given him a dressing down on the way he was doing his job (T 186) and showing all three of them how to use a sling. He was similarly vague about whether (and when) Mr Prime visited. 4. He was uncertain about the distance that the pipes were away from the site (T 185). 5. He could not remember what Mr Anderson told him about the circumstances of the plaintiff's injury. He said he did not think he asked how it occurred. As he was the supervisor, and the plaintiff was someone he had worked with for many years, I find this evidence difficult to accept.
2. Mr Sanderson's poor recollection meant that he retreated behind the word "would" on many occasions (T 179, 180, 183, 184, 187, 189, 190, 191, 195).
3. It was put to Mr Sanderson that he did not have an actual recollection of events and that he was reconstructing what he claimed would have happened. He acknowledged having little actual recollection of the events on the day. This means I should treat his evidence with caution, including his evidence about whether or not Mr Connell or Mr Prime came to the site before or after the plaintiff's injury.
4. As the supervisor, Mr Sanderson's job was to ensure that the work was being carried out correctly. Even if there was a backhoe available, it was his job to ensure the work was being done properly. He knew the pipes were too heavy to carry by hand. His evidence was that, despite being in an excavator with a rear vision mirror, he did not see the plaintiff and Mr Anderson carrying the pipes for more than a day; nor did he see the accident occur.
5. It was Mr Sanderson's job to ensure that the workmen were carrying out their work safely, and his failure to supervise them, even if I accepted his evidence that there was a backhoe on the site, would be sufficient to amount to negligent conduct.

Mr Ashley Prime

1. Mr Prime said that he saw the backhoe used on the site to transport the pipes with a sling on "many occasions": "Q. How were they being transported? A. They were transport with a backhoe. Slinged on the backhoe, transported up and then re-slinged into the - into the trench after the trench was dug by the excavator. Q. And you saw this occur? A. I have seen that occur on many occasions." (T 206, lines 9 - 19)
2. The phrase "many occasions" is unusual, given the work had only started the day before. Even if he went to the site twice on that day, he would have been unlikely to have seen "many" occasions of the pipes being moved, given the unchallenged evidence of the plaintiff that they only moved 6 - 7 pipes on the first day of work. Mr Prime did, in fact, concede that, when he visited the site, he had not actually seen any of the pipes moved; he said he only saw them positioned along the trench ready to be slung into the trench.
3. Mr Prime said that, when he was on the site, no one had complained about the manner of transporting the pipes or raised with him the question of manual handling of pipes. He denied that he told anyone to handle the pipes manually: "Q. Did you ever tell anyone on that site to move the pipes manually? A. No." (T207, lines 21 - 22)
4. Mr Todd submits that Mr Prime should be accepted as a witness because he was "certain of his evidence" and "as with Mr Sanderson, he was unshaken by cross examination" (submissions, paragraph 22).
5. However, Mr Prime's evidence is inconsistent with the evidence of all the other witnesses and unsupported by documentation which he acknowledged should have been created as a result of the logistics for the job. I particularly note: 1. Absence of Mr Keech: Mr Prime acknowledged that the work at the site had commenced on 10 March 2014, and claimed that he had visited the site at least twice the day before the accident. What was not clear was whether he claimed he had visited the site on the day of the accident as well. He claimed that he and his supervisor, Mr Keech, attended the site (T 208) and participated in the on-site meeting before the commencement of the work, although it was unclear whether he said that this had occurred on one or both days. Mr Keech was not called to give evidence, although it would appear he still is in the employ of the Council. 2. Absence of relevant documentation: Mr Prime acknowledged that there would be documentary evidence of the toolbox meeting and any inductions, but said that documents could not be located (T 209). Mr Prime also claimed to have seen the backhoe on the site "on previous days" before this visit (T 209). In view of his acknowledgement that there would be documentary evidence about equipment use and site visits, the absence of these pre-commencement work records should similarly be noted. 3. Evidence contradictory to the plaintiff and Mr Anderson: Mr Prime said that when he did visit the site, he did not see the pipes being moved, but merely positioned along the trench ready to be slung into the trench. The plaintiff said that Mr Prime, as well as Mr Sanderson, saw them transporting the pipes manually and that Mr Prime told them that the task must be carried out in this fashion. 4. Evidence contrary to Mr Sanderson: Mr Sanderson says that Mr Prime was not there before the accident. 5. Evidence of Mr Connell: Mr Prime did not give evidence of knowing about the asserted demonstration of sling carrying by Mr Connell. Mr Prime, who carried out the site assessment, said he had no issue in respect of the positioning of the pipes and said that three slings were available for use, all of which was contradicted by Mr Connell, who said there were no slings and that he actually had to go to a store to buy one.
6. The disparities in the evidence of Mr Prime and Mr Connell must impact significantly upon the reliability of both these witnesses.

Mr Connell

1. Mr Connell, who now works in the insurance industry, was employed as the work health and safety/risk management officer. His evidence as to what occurred on the day of the plaintiff's accident is internally inconsistent as well as being inconsistent with contemporaneous records of the time of the accident, which would have had to have occurred during the time that Mr Connell said he was demonstrating how to use a sling.
2. Mr Connell's account of how he dealt with the complaints generated by the plaintiff and Mr Anderson (which he acknowledged receiving) was that he was so anxious to get to the site that he drove himself, in order to get there approximately half an hour after receiving the call as to the problem. He claimed that when he attended the site that the retrieval of the pipes would require the workers to make a 1 km round trip, and that there was no sling with which to move the pipes. In other words, his evidence was that the backhoe was there, but that the necessary sling was not. Mr Connell said he went to a store in Moama to buy a sling, and then to return to the site and in his capacity as safety officer instruct all three workers as to how to manipulate the 6 m long rigid PVC pipe.
3. Mr Connell's version of events is in part supported by his documentation (CB 45 - 47). He described the accident as follows: "Incident No. 14015 Background Report forwarded by Darren Woods Darren W. assisting Rob S. installing large PVC drainage pipes at Moama Filtration Outfall. Darren W. Manually lifted pipe causing left shoulder pain. Contributing factors After conducting enquires ~ task plan and program changed during construction, this caused following pipes delivered to area considerable distance from site pipes moved to site using back hoe (possibility to hiring forklift loader){I.K. Approved} ~ manually lifting of pipes and non use of lifting slings Action required After discussions ~Ian K. advised that forklift available to hire if advised of requirement ~Rob S. advised of above procedure Person/s Involved Action ~Darren W. Advised of procedure for statecover reporting and medical visits (Darren W. Arranged medical treatment Wed.12th) ~Darren W. south medical treatment Sunday 16th including X-ray, medical advise [sic] included 1 week leave of absence and CAT scan to be performed 17th. ~Steve H. informed of developments 9.45hrs. Monday 17th March 2014 Included ~3photos Damien Connell Worker Health and safety Officer 17/03/2014"
4. It should be noted that Mr Connell had identified part of the problem as being that the pipes were delivered to an area at a "considerable" distance from the site. While Mr Connell says that the pipes were moved to the site "using backhoe", there is no suggestion that the backhoe delivered these pipes to the work site with either the plaintiff or Mr Anderson driving it. Moreover, it is followed by the puzzling words "possibility of hiring forklift loader" which step has been "I K approved" (I assume that this is a reference to Mr Ian Keech, who went with Mr Prime to the site after the accident). Indeed, the words "Ian K advised that forklift available to hire if advised of requirement" then appear. Why was that necessary, if the backhoe was there and was the machine to do the job?
5. The following appears under the heading "Description of incident": "Description of incident 1/ Darren W. Assisting Rob Sanderson installing large PVC drainage pipes at Moama Filtration Outfall 2/ Darren W. manually lifted piper causing left shoulder pain 3/ Lifting equipment available at work site 4/ Operators inducted to correct lifting techniques"
6. Mr Connell goes on to put "no" as the answer to "adequately supervised", which must be a reference to Mr Sanderson.
7. Mr Connell gave the following recommendations: "Section 4 Corrective or preventive actions recommended Recommendations 1/ Ian Keech to follow-up positioning of pipe stockpile in relation to site requirements Actions 1/ Construction and maintenance supervisors to meet to discuss incident Section 5 Potential for recurrence and risk Current Controls 1/ Work tasks risks discussed at Toolbox/Risk assessment site meeting 2/ All operators licenced and competent Likelihood of recurrence 1/ Operators inducted and trained in Manual Handling techniques 2/ Injury trends indicate procedures not being followed Level of Risk Low Medium High Extreme Section 6 Follow-up Supervisors acknowledgment Ian Keech Steve Hazell Managers acknowledgement Leigh Robins"
8. Nothing in the report prepared by Mr Connell refers to an earlier meeting where he had urgently gone out to show the team how to use a sling, with a sling that he actually set off to the shops in Moama to buy for that purpose. To the contrary, it reads like an "after-accident" report with no prior notification, and suggests that, following the accident, arrangements were made to obtain a forklift loader to finish the job, the inference being that the machinery at the site is inadequate.
9. Nothing in Mr Connell's report is consistent with the accident report prepared by Mr Anderson, which notes the accident time at or shortly after 10.00 AM.
10. I do not accept any of Mr Connell's evidence as to what happened on that day. Clearly there were complaints on the day before the accident which, I consider, came to Council's attention but were not actioned. The result was that, despite a course on lifting after another worker crushed his leg, a second Council worker, over a relatively short period of time, had a serious injury as a result of lifting issues.
11. Given the unreliability of, and inconsistencies in, Mr Connell's evidence, I accept and prefer the version of events given by the plaintiff and Mr Anderson. However, if I have erred in this regard, I would still have found that the defendant was liable, given the acknowledgements of inadequate supervision and lack of a forklift. There may, if so, be questions of contributory negligence if that were the case, but liability is clear even if I accept Mr Connell's evidence.

The evidence of Mr Cauduro

1. Mr Cauduro provided an expert's report dated 31 August 2020. He states at paragraph 4.14: "From my experience within the construction industry, which includes supervising the installation of drainage systems, it would be obvious to the Defendant that the PVC pipes would be too heavy and would be an unsafe practice to manually handle, especially when a heavy load is also required to be carried over a long distance. The Defendant bring a local Government organisation would have had resources, which would have been reasonably practicable to introduce as control measures, to either eliminate or mitigate the amount of manual handling required to be undertaken by workers. Those resources would have been additional machinery, such as a backhoe or forklift to lift and horizontally move the pipes as required. A work truck could have been provided, whereby at the start of every shift the excavator is moved to the stockpile of pipes, the pipes are lifted onto the truck, the truck is then driven to the required location and the pipes lifted off with the excavator as required. In my opinion any competent supervisor within the construction/civil industry would have provided alternative methods of moving heavy loads horizontally, then just carrying out the task with hazardous manual materials handling. The movement of materials using other machinery, such as a truck, utility vehicle, excavator, backhoe or forklift is common practice across construction and civil sites, in which I have been control of." (Exhibit A, p. 81)
2. In practical terms, however, if I accept the evidence of the plaintiff and Mr Anderson that they were told to carry the pipes by hand, I would not require an expert to provide an opinion to is the effect that they were too heavy to carry. It is common ground that the pipes must not be carried by hand. The question for determination is whether the system of work employed was a result of a backhoe not being provided, which I am satisfied was in fact the case.

The missing documents

1. Mr Prime was asked about the keeping of assessment and induction records for the job: "Q. Mr Prime, just initially, and towards the end of your evidence a moment ago, you were asked some questions about an induction process and in response to that, you mentioned that the first port of call on any site would be that you, yourself and your supervisor would go out to the site and make an assessment of the site and determine what was to be done, how it was to be done and what equipment was needed. A. Yes. Q. You document that, do you? A. Yes. Q. What do you do with the documents? A. They should be on file. Q. You give them to council? A. I - I give them to my works manager." (T 209)
2. The keeping of such records for worksites by Mr Prime is thus confirmed. Mr Anderson similarly stated that he had prepared and sent on risk assessments and induction records. However, these documents were not produced to the court.
3. Evidence is to be assessed in the light of the respective parties' capacity to adduce it: Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 at [36], citing Blatch v Archer (1774) 98 ER 969 at 970. The defendant's failure to adduce any documentary evidence in relation to the risk assessments and inductions made on site by its employees, as well as the documentary material prepared by Mr Connell relating to his asserted visit to the site on 11 March 2014, is a matter that I should take into account in deciding whether the onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus (Shalhoub v Buchanan [2004] NSWSC 99).
4. I accordingly draw the relevant inference from the absence of this documentation, both on the issues of liability and of contributory negligence.
5. Mr Prime said that Mr Keech was with him when he attended the site (T 220). Mr Keech was not called to give evidence. I was not, however, asked to draw an inference from this, and accordingly do not propose to do so.

Conclusions concerning the evidence

1. I am satisfied that the evidence of the plaintiff and Mr Anderson should be accepted. The only other person at the site was Mr Sanderson, and his sketchy memory and implausible claims of not being able to see the plaintiff and Mr Anderson at work render his evidence of no value. It is clear that Mr Connell was notified of there being a problem at the site, whether he went there or not, and it is clear that the proper system of work was not being followed.
2. Whether Mr Prime went to the site or not before the accident, he acknowledged that he did not see the work being performed. This is difficult for him to explain away if I accept (as I have) that both the plaintiff and Mr Anderson immediately complained on the first day of work about having to lift the pipes manually.
3. On the balance of probabilities, I am satisfied that the reason for the plaintiff and Mr Anderson carrying the pipes was because no backhoe was available. The likelihood of these experienced and reliable workmen carrying the heavy pipes themselves rather than use a backhoe if it was available is one that can be sensibly discounted.
4. If I have erred in this regard, the failure to provide a sling, described by Mr Connell, in circumstances where his visit was clearly on the day of the accident and they would have been working the whole of the previous day without a sling, remains a problem, as does the failure of Mr Sanderson to supervise. I also note that Mr Connell acknowledged he was not trained in how to use the sling (I infer that the demonstration given some weeks or months beforehand after another worker's leg was crushed was not given by Mr Connell).

The relevant principles of law

1. The relevant principles are set out in Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12] - [18]: "12 The appellant relied in this Court on these basic general principles. 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. 13 The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty. 14 Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work. 15 There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court. 16 An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent. The Full Court erred in holding to the contrary. 17 The respondent submits, nevertheless, that even if the Full Court erred, its provisional finding of contributory negligence of 70% on the part of the appellant should not be disturbed. 18 In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgment". It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. The appeal should be allowed. We would make orders as follows: 1. The appeal should be allowed with costs. 2. The orders of the Full Court of the Supreme Court of Western Australia made on 9 December 2002 should be set aside and in their place it should be ordered that the appeal is dismissed with costs.
2. The duty of care, which is nondelegable, requires the defendant to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury in the workplace. The question of whether the defendant was negligent is determined with reference to the common law principles set out in Wyong Shire Council v Shirt (1980) 146 CLR 40, applied in the context of a prospective analysis. Identifying whether the negligence was the relevant cause of the injury is achieved by applying the "but for" test set out Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182.
3. Applying these principles to the facts as I have found them demonstrates the creation of a risk by failure to adopt a safe system of work by providing employees with suitable plant and equipment to enable them to carry out their work safely. Informing the plaintiff and Mr Anderson that the backhoe was not available and that they should do the work by hand is a clear failure to provide a safe system of work. The plaintiff found himself in a situation where you needed to complete the task allocated to him in the manner that dictated by his supervisor and by the only means available. Although Mr Todd submitted that the plaintiff could have refused to do the work, that is not a realistic approach to the nondelegable duty of care that an employer must have in the circumstances. Indeed, disobeying a direction or warning from an employer would have the reverse effect, for the reasons explained in Czatyrko at [18].

Contributory negligence

1. The relevant principles are set out in Ghunaim v Bart (2004) Aust Torts Reports 81-731 at [3] - [7] as follows: "3. The question whether a person has been guilty of contributory negligence is a question of fact: Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354 at 360, McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306 at 315, Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 at 885 [90] per Kirby J and Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1251 [100] per Kirby J referred to. 4. A finding of contributory negligence may be reviewed on appeal. While an appeal court must pay appropriate deference to the advantages the trial judge enjoyed in deciding whether or not a person was guilty of contributory negligence, it must not shirk its statutory obligation to conduct a rehearing and, where error is found, must substitute its own conclusion on the issue: s 75A(5) Supreme Court Act 1970 (NSW); Fox v Percy [2003] HCA 22, (2003) 77 ALJR 989 at 993-994, esp. at [27], [29] per Gleeson CJ, Gummow and Kirby JJ; Callinan J at 1015-1017 [145] - [148]; Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531 at 552 per Gibbs A.C.J., Jacobs and Murphy JJ referred to; Liftronic Pty Limited v Unver [2001] HCA 24, (2001) 75 ALJR 867 distinguished. 5. In considering an allegation that an employee was guilty of contributory negligence, it is relevant to take into account whether the employee was acting contrary to the system of work established by the employer or acting inadvertently in a manner not inconsistent with the standard of care of a reasonable employee: Davies v Adelaide Chemical & Fertiliser Company Limited [1946] HCA 47, (1946) 74 CLR 541 at 551, 552 per Dixon J; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 176; John Summers & Sons Ltd v Frost [1955] AC 740 at 777; Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24 by Kitto, Menzies and Owen JJ; Commissioner for Railways v Halley (1978) 20 ALR 409 at 415, 420; Commissioner for Railways v Ruprecht [1979[ HCA 37, (1979) 142 CLR 563; Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 referred to. 6. The respondent bore the burden of proving, on the balance of probabilities, that the appellant had been guilty of contributory negligence: Flower v Ebbw Vale Street, Iron and Coal Co Ltd [1936] AC 206 at 216; Commissioner for Railways v Halley (1978) 20 ALR 409 at 419; Joslyn v Berryman [2003] HCA 34, (2003) 77 ALJR 1233 at 1237 [18] referred to. 7. The respondent failed to discharge its burden of demonstrating that the appellant's conduct demonstrated a departure from the standard of care of the reasonable worker rather than an occasion of momentary inadvertence which was "excusable because not incompatible with the conduct of a prudent and reasonable man": McLean v Tedman [1984] HCA 60, (1984) 155 CLR 306; Twynam Pastoral Co Pty Ltd v Bennett [2002] NSWCA 319 applied; Bourke v Butterfield and Lewis Ltd [1926] HCA 38, (1927) 38 CLR 354; Sungravure Pty Limited v Meani [1964] HCA 16, (1964) 110 CLR 24; Commissioner for Railways v Ruprecht [1979] HCA 37, (1979) 142 CLR 563; Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, (1985) 59 ALJR 492 referred to."
2. Mr Todd submits that the plaintiff should not have exposed himself to the risk of injury from the obvious hazard of carrying heavy pipes, although acknowledging that any contributory negligence would be "reasonably minor" (submissions, paragraph 29). However, an employee is not guilty of contributory negligence by following orders: Kabir v AAI Limited t/as GIO [2019] NSWCA 247 at [110]. Conduct amounting to misjudgement, including whether the employee had no real choice but to adopt the unsafe system of work in question, is similarly not capable of establishing grounds for a finding of contributory negligence.
3. Accordingly there will be no finding as to contributory negligence.

Quantum

1. The defendant accepts that the plaintiff had light duties provided by the defendant until these were withdrawn and has not worked since. The defendant acknowledges that during periods of time when the plaintiff underwent surgery and had a recovery period thereafter, he had no capacity, but submits that there was a residual capacity found by his treating doctors in the series of medical certificates provided. The defendant also accepts that the plaintiff has been unable to find work despite the best efforts of his rehabilitation advisers.
2. The plaintiff acknowledges that from November 2015 there have been periods of time when he has been certified to perform restricted duties: "Q. Mr Woods, do you accept from me that from around about November 2015, you have been certified to do restricted duties on and off until today? A. Yes." (T 128, lines 31 - 33)
3. The plaintiff was in constant employment for the time he left school until the date of the accident, and over this period of time to additional work to supplement his income. As is noted above, there was nothing but praise for his work ethic. Mr Anderson, describing the plaintiff's capacity for work, had the following to say: "Q. So, when you saw him working, what sort of a worker was he to your observation? A. He was an exceptional worker. He was extremely dedicated to his job. And he was very efficient and, you know, followed direction, you know, clearly and - and on - always on time, you know, he was diligent in what he did. I found him to be an exceptional, you know, assistant, well a[n] off-sider, I suppose. I never faulted his work or his work ethic. Very, very, you know, responsible, you know, in - in his duties." (T 147, line 44 - T 148, line 1)
4. Mr Morgan draws to my attention that surgical treatment of the plaintiff's injury was recommended by his treating neurosurgeon within five months of the accident but this was rejected by his employer, which meant that the surgery was delayed by approximately two years. The treating pain specialist noted in 2015 that if surgery happened later rather than sooner, then the outcome of surgery could potentially be compromised: "There appears to have been a delay in this occurring. The longer Mr Woods experiences his pain the more likely it is that his outcome will be suboptimal." (Exhibit A, p. 244)
5. The plaintiff's employability prior to the accident was clearly of a very high order. He gave a history of employment in a number of occupations of the kind which would be available in regional and rural Australia. His impressive work history over his whole adult life is clear. His employment with the Council was clearly expected by him to provide him with not only secure employment through to retirement age but employment which is relatively limited range of work skills were suitable for.

The vocational evidence on work capacity

1. A feature of the cross examination of the plaintiff in relation to quantum was the plaintiff's asserted inability to use a computer or to carry out computer-related work. Although he had been able to use work-related sales machines that were part of a computer system, he did not use any such equipment for the duration of his employment by the defendant. It was put to him that he chose not to develop any computer proficiency after his injury, and Mr Todd submits that I should not accept the statement that he did not know if he could use a computer.
2. The defendant submits that there is a capacity for the plaintiff to adapt to a basic computerised system to enhances employability and that this should be taken into account when determining the capacities for future employment. In general terms, the plaintiff's ability to perform shop assistant work such as working at a chemist shop, in the local supermarket, at a service station or other semi-clerical position means that his residual capacity for light duties work at around 20 hours per week at approximately $25 per hour should be taken into account. In the earning capacity report prepared by Mr Hunter (Exhibit 1, pp 76 - 104), a series of examples of potential employment on this basis has been prepared. The plaintiff is noted to have gills in reading and writing and to be possessed of the necessary communication skills.
3. The following point is made at page 6 of report: "Mr Woods reported having no experience utilising computers, which is partially supported by his employment history, as he was not required to use computers in his role as a plant operator, retained firefighter, concrete, farmhand or builder. It is noted that Mr Woods was required to utilise point of sale software while working in his role as a retail assistant (liquor). Mr Woods was not required to utilise Microsoft Word in this role. Mr Woods partially completed a certificate III in health assistance, which would require the use of technology such as Microsoft Word to complete."
4. Mr Hunter goes on to say that while the plaintiff reported having no experience using computers, he would have been required to use an Internet browser to complete induction training or check online prices in his role as a retail assistant. He noted that the plaintiff had his daughter completed all his email communications on his behalf and that he claimed not to have any other computer experience.
5. Mr Hunter sets out the skills possessed by the plaintiff as including financial skills, communication and customer service skills, technical skills and aptitude and other skills such as being able to think and act independently and having experience in the construction industry. Additionally, he had a good knowledge of fire safety issues.
6. Mr Hunter's report does not develop any further the question of what degree of computer skills would be necessary. Some of the jobs for which he considered the plaintiff to be suitable, such a service station attendant, involved using a till or cash register, while others, such as a retail assistant, will require ongoing management of stock such as product inventory is and participating in stock takes. Other jobs, such as traffic controller, do not seem to involve use of computers at all.
7. In practical terms, a person who has spent most of his adult working life in employment which does not include computers would have difficulty in achieving anything other than a relatively basic level of computer skills given that his ages 54. Mr Morgan draws to my attention Mr Hunter's error on page 3 of his report in considering that the plaintiff is a 44-year-old person rather than 54 years old. While this is possibly merely a typographical error, it is an error of some significance; for example, on page 23 of his report, Mr Hunter notes that road traffic controllers have an average age of 45 years, which he seems to consider would be suitable for a person such as the plaintiff, although he is actually 54 years old.
8. Mr Hunter's report offers the court little guidance as to what kind of computer skills the plaintiff would need to have, or how these can be acquired. Mr Todd suggested from the bar table that being able to use email and perform Google searches would improve the plaintiff's employability if he enrolled in some unspecified course. I have no expert evidence either as to the kind of course involved, or the skills the plaintiff would need to master. In those circumstances, I am reluctant to draw conclusions about matters for which there is no expert evidence. Accordingly, any residual capacity the plaintiff has for light duties work around 20 hours a week would have to be for work which did not require computer skills.
9. Mr Ravagnani, a work psychologist, provided an opinion going to vocational capacity and an assessment of realistic chances of finding and maintaining employment in the local labour market conditions. He similarly concluded that: "However, from a labour market access perspective, it is becoming increasingly unlikely that he will resume employment in the future for the reasons identified (in the report). There is significant evidence to indicate that the longer an individual is away from work as a result physical or psychological injury the less likely they will return to work, in the future. According to Comcare 2020, work absence tends to perpetuate itself. If an injured worker is off for 20 days their change of getting back to work is 70%. If they are off for 45 days the chance of getting back to work is 50% and a study of return to work outcomes for injured Australian workers … found that only 5.2% of long term claimants had return over the following 18 months."
10. Looking at both these significant health issues, it is helpful to note that Mr Ravagnani concluded that the plaintiff's compromised access to the labour market stem from: 1. His inability to return to his prior manual employment role. 2. His inability to undertake alternative work roles. 3. The limited range of alternatives to sedentary occupations that are appropriate and for which he might be competitive given his age, education and specific work experience. 4. The probabilities that retraining, of itself, will not improve his employability, given the other substantial barriers he faced. 5. The concern potential employers would hold, regarding his safety reliability and productivity (and, it should be added, his age) as a worker.
11. Mr Todd submits that I should prefer the views of Mr Hunter to those of Mr Ravagnani and accept that the plaintiff clearly has some residual capacity to earn, as opposed to no capacity at all.
12. As to the availability of such work, Mr Morgan points out that the plaintiff comes to court with a history of seven years of being unable to find employment despite the insurer expending $57,000 on rehabilitation and retraining courses over the past eight years. The defendant itself, despite being one of the major employers in the local area, was unable to find suitable employment for the plaintiff, and the difficulties of working in regional and rural areas must also be factored in.
13. The plaintiff's history of attempts to find work demonstrates that, apart from the light duties provided by the defendant between 2014 and 2017, he has been unable to return to work as a sales assistant or in administrative duties and he has been effectively unemployed for more than seven years.
14. Taking all of the above into account, I prefer the opinion of Mr Ravagnani. The plaintiff's age, limited work skills (in that he has only effectively manual employment skills) and (although to a very minor degree) his speech impediment are factors which render the plaintiff effectively unemployable on the open labour market. To those impediments to employment must be added the physical disabilities under which the plaintiff labourers as well as his self-esteem issues. While the plaintiff acknowledged that low self-esteem had not stopped him from looking for work (T 129), his physical restrictions must also be taken into account.

The medical evidence

1. The nature and extent of the plaintiff's injury is demonstrated by the investigative reports from 2014 and onwards. Conservative treatment was used at first, but a return to work created difficulties, with Dr McCallum opining, in November 2014, that the return to work had been "a bit too much" for him (report, 26 November 2014). Increased medication was of no assistance and on 2 February 2015 Professor Bittar confirmed that he had recommended anterior cervical decompression and fusion but that this had been rejected by the insurer.
2. Professor Bittar repeated his opinion that this surgery would be the best form of treatment for the plaintiff and that this "really should have happened some time ago" (Exhibit A, p. 234). Dr McCallum made similar observations in a report dated 12 May 2015, noting the plaintiff was unable to operate machinery due to tiredness from the medication. He considered that the plaintiff was doing "a fantastic job of continuing to work in his current condition", which is high praise and indicative of the plaintiff's strong work ethic. However, surgery was not performed until 22 April 2016.
3. Dr Eaton, an occupational physician, saw the plaintiff after this operation and sets out, following his initial consultation on 21 June 2016, the permanent restrictions he considered were appropriate. This included lifting less than 12 kg of a supported weight or less than 3 kg of an unsupported weight, avoiding the pushing or pulling of trolley's, avoiding lifting items weighing more than 15 kg and avoiding vibrationally forces as well as holding his head and neck in fixed flexion or extension poses.
4. The plaintiff continued to receive treatment from Dr McCallum and from June 2019, when he was referred to a psychologist to assist in management of his condition, Dr McCallum expressed the following opinion: "I think it is unlikely that he is going to return to be able to start working 40 hours a week after being out of work for two years. A graduated return to work would be better".
5. Dr McCallum went on to note that the plaintiff had not worked since June 2017 and that there was no return-to-work plan, although he had completed some retraining courses. He noted that the plaintiff had become depressed, was not socialising and found the process of return-to-work stressful. He also noted that the plaintiff was anxious and had on occasion had some mild suicidal thoughts.
6. Dr McCallum refer the plaintiff to a pain specialist who expressed the following opinion: "In my opinion, Mr Woods has limited skills, knowledge and experience beyond heavy labouring and machine operator duties that he normally pursued up until this time. He is not likely to benefit from retraining and he is, in my opinion, permanently incapacitated for work." (Exhibit A, p. 282).
7. In a report of 29 March 2020, Professor Bittar expressed reservations about the plaintiff returning to work in jobs such as bar attendant, liquor sales assistant or traffic controller, stating that this was likely to be harmful to his survival spine condition. The plaintiff's general practitioner expressed a similar view in a report dated 5 May 2020, which again noted the plaintiff's limited skills, knowledge and experience to engage in any new employment apart from heavy labouring jobs of the kind which he had carried out beforehand.
8. All these medical reports paint a consistent picture of the plaintiff having significant physical restrictions by reason of his injury.
9. There are, in addition, significant mental issues. Dr Takyar recorded a range of behaviours ranging from crying (at one stage, every second day) to sleep problems, difficulty in memorising dates and chronic low mood. Dr Takyar stated that he: '…presents … with a worsening of a prior work related adjustment disorder with mixed anxiety and depressed mood (chronic), that is now better described as a major depressive disorder and generalised anxiety disorder. He does not have any realistic psychiatric capacity to return to work at the current time.' (CB 151)
10. Dr Takyar confirmed the symptoms persisted in his report of 3 May 2021, and that the plaintiff did not have any realistic capacity to return to any employment for which he had training . That opinion was confirmed under his assessment of prognosis for the future where he expressed the view: "…I do not believe (his) condition will improve sufficiently for him to be able to realistic return to work at any point in the foreseeable future - his anxiety out of the house now seems to be significantly worse." CB 158)
11. Similar views were expressed by Dr George, in his reports of 21 July 2020 and 24 March 2021; in the second of these reports, Dr George confirmed the presence of persistent depressive disorder relating principally to pain, limited mobility and decrease in activities such that there was a secondary injury to that physical injury. Dr George expressed the view that there was no capacity for work.

Causation issues

1. The plaintiff suffered bullying in the workplace in about 2010 but, as is noted in the report of Dr Ash Taykar (CB 158), "continued to function normally until his mental state worsened further" after suffering the physical injury the subject of these proceedings (which Dr Taykar gives the wrong year for). The plaintiff then suffered "Heightened bullying and harassment from that point" in that there were comments about his injury being "faked" from colleagues, superiors and others at work. Dr Taykar considered that the problem had accelerated from this bullying and these allegations.
2. Precisely why the plaintiff suffered bullying for having a "faked" injury is unclear. There is no doubt, medically speaking, that he suffered a significant injury for which the only satisfactory remedy, when conservative treatment failed, was fusion, and that attempts by the defendant to find suitable light duties at work were unavailing. Mr Connell unwittingly confirmed some of the anger the plaintiff's accident seems to have generated at Council by confirming, in his evidence, that he had been angry when the plaintiff's wife said that the plaintiff's claim would be quantified at around a million dollars. As Mr Morgan pointed out during his cross-examination of Mr Connell, that is in fact the quantum of the claim, but Mr Connell appears to have regarded the making of such a claim to be, in some unspecified way, dishonest, or greedy, or both. The extraordinary circumstances of Mr Connell insisting on accompanying the plaintiff to see the doctor and passing on medical advice of his own (such as telling the plaintiff not to have a fusion because someone in his family had not been helped) is also corroborative of this.
3. Dr Takyar records the plaintiff as telling him: "The boys were saying I was faking it - the bloke I was working with knew I wasn't faking it, but the leading hand, bosses and supervisors [sic].…[T]hey would tell him 'there is nothing wrong with you'. (CB 147).
4. The response of an employer to an injured worker's rehabilitation can play an important part in that worker's recovery. Mr Morgan noted the delay in agreeing to surgery (and the criticism of this by the plaintiff's treating doctors: CB 242 - 257; it took contested proceedings in the Workers Compensation Commission for the surgery to be funded by the insurer: CB 623). Mr Morgan also drew my attention to the impact of Mr Connell's attendance with the plaintiff at his doctors' appointments, despite the plaintiff (and on at least one occasion, his wife) asking him to wait outside or leave, as well as giving opinions about the desirability of surgery (submissions, paragraph 143).
5. As to causation generally, where it is to be claimed that a pre-existing condition impaired the plaintiff's functioning pre- or post- injury, the defendant bears the evidentiary burden of establishing same: Watts v Rake (1960) 100 CLR 158; Purkiss v Crittenden [1965] 114 CLR 764; Shorey v PT Limited [2003] HCA 27.
6. Mr Todd did not address the issue of causation in his written submissions but referred briefly to the issue of previous psychological problems arising from the bullying, and cross-examined the plaintiff about these. The plaintiff responded that he had been able to cope with his work before the injury, and I accept this evidence.
7. I have accepted Mr Morgan's submission (paragraph 145) that the delay in surgery contributed to the poor outcome that the plaintiff has suffered. I also consider that the conduct of the plaintiff's fellow workers (including Mr Connell) exacerbated the plaintiff's psychological issues, as did the pain and suffering he was going through as a result of his injuries and consequent disabilities. I am satisfied that the defendant has not discharged the burden of establishing causation issues.

"Theoretical earning capacity"

1. There is a degree of similarity between the facts of this case and Mead v Kerney [2012] NSWCA 215, where the plaintiff had an impressive work history which involved working and living in a small country town. The question predetermination was whether there was a theoretical earning capacity of no value where there was no reasonable prospect of obtaining work to utilise it. However, Mr Kerney was in a better position than the plaintiff in these proceedings, in that he was aged 35 at the time of the accident (and 45 at the date of hearing) and was a Telstra senior technician, which meant that he had a reasonable level of literacy and numeracy skills. The first instance judge determined his "theoretical work capacity" (at [18]) but noted the following were relevant to the determination of the plaintiff's labour market skills: 1. The plaintiff was unemployed for a long time and was now 45, with an employment history in one field with one employer. 2. The field in which he was skilled, namely telecommunications, had undergone technological change to a marked extent over the period of time he had been unemployed. Without retraining, work in the field would not be open to the plaintiff. 3. The plaintiff had at all relevant times resided in a small country tow and it could not reasonably be expected that he would move away the purpose of finding employment. Nor was there anywhere within a reasonable driving distance, which was relevant as driving was a difficulty.
2. In those circumstances, there was effectively no residual incapacity of any value, and the plaintiff was entitled to the entirety of his standings by way of economic loss from the time of the accident up until judgment.
3. In the course of dismissing an appeal from this finding, Macfarlan JA stated that the evidence showed a series of unsuccessful attempts to obtain employment over a period of nearly 4 years prior to the trial, in circumstances where there was nothing to suggest the position would be any different in future. There was no evidence of practical job opportunities available to the plaintiff of which he had failed to avail himself and in those circumstances, "to a tribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation" (at [37]).
4. I note similar observations in Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 at [253], concerning the ongoing effects of complex physical and psychiatric injuries and the impact of the pain which the plaintiff in those proceedings suffered.
5. All of these factors can be seen here. The plaintiff has put himself forward in a series of jobs organised by the insurer, with no success. Although it is put to me that he could acquire computer skills of the kind he was able to use in 1999, the same difficulties in terms of technological change which applied to Mr Kerney would apply in these proceedings with considerably more force, in that the period of time since the plaintiff used equipment of this kind is double that of Mr Kerney, and the plaintiff does not have Mr Kerney's advantage of having technological skills (even out of date skills) in the first place. The first instance judge's conclusion that the capacity could not be utilised effectively amounts to a finding that the plaintiff does not have any residual earning capacity at all.
6. It is not in dispute that if the plaintiff had not been injured, he would have spent the rest of his working life in the employment of the defendant. Nor is there any challenge to the net earnings if he had continued in full-time employment up until retirement age. No dispute as to estimate increases of the likely earnings of the plaintiff if he had not been injured has been raised.
7. There is also the psychological element, which was a significant factor for Mr Kerney and is a significant factor here.
8. Mr Morgan draws to my attention that I should take into account that in the event that the plaintiff is awarded damages, by reason of s 151 of the Workers Compensation Act 1987 (NSW), liability under the compensation scheme ceases and costs and expenses associated with retraining will not be borne by the insurer, and must instead be borne by the plaintiff. In circumstances where exhaustive inquiries have been made by the workers compensation insurer to find the plaintiff employment over the past seven years, without success, that is a heavy burden to cast upon the plaintiff.
9. Taking all of the above into account, I accept the plaintiff's reports and reject the opinion of Mr Hunter. In particular, I accept Dr George's most recent opinion that the plaintiff is totally incapacitated: "7. Your opinion as to the worker's fitness for work as a result of his impairment. • He does not appear to have any capacity for work." (Exhibit A, p. 175)
10. I am satisfied that the medical and vocational evidence demonstrates the same total loss of earning capacity as that demonstrated in Mead v Kerney.

The quantification of damages

1. Sections 151G and 151A of the Act provide: 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are - (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897. … 151A Effect of recovery of damages on compensation (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case) - (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act. (2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation - (a) the amount of any weekly payments of compensation already paid in respect of the injury concerned, (b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned. (3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death - (a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker. (4) If a person recovers motor accident damages (other than damages to which Part 4 of the Motor Accident Injuries Act 2017 applies) from the employer liable to pay compensation under this Act - (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation. (5) If a person recovers damages to which Part 4 of the Motor Accident Injuries Act 2017 applies from the employer liable to pay compensation under this Act - (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any of the following compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation - (i) weekly payments of compensation, (ii) permanent impairment compensation and pain and suffering compensation, but limited to the amount of any damages recovered for non-economic loss.
2. Interest is calculated according to s 151M.
3. In assessing loss, it must be borne in mind that the quantum of the loss is not a loss of income of itself, but the loss of a capacity to earn income which, because of the diminution of the plaintiff's earning capacity is, or may be, productive of financial loss. The plaintiff's economic loss should be assessed by reference to the actual loss of wages occurring up to the time of trial and then, having regard to the plaintiff's condition at the time of trial, to attempt an assessment of his future loss. I note the observations of Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [31]: "As the applicant correctly stated, a combination of sub-ss (1) and (3) required the assessor to identify and state the assumptions about future earning capacity and other events on which the award was based. In Livaja, the Court noted at [41]: "The assumptions or events upon which a baseline may commonly be calculated include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtained promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment, and (f) the possibility that the employment would not have been continuous.""
4. The correct approach to assessing whether a plaintiff has a theoretical work capacity requires a determination as to whether a plaintiff can, as a practical matter, utilise such capacity to obtain work. That is not the case here, and I note the observations of Macfarlan JA (set out above) in Mead v Kerney about the undesirability of "mere speculation". Mr Morgan also draws my attention to the observations of Leeming JA in Hutchison construction services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135 at 109: "109 There is a high degree of inevitable imprecision in all such calculations. As Hutchison observed, these amounts are often assessed in a broad brush fashion by way of a cushion. However, in my view there is a logical inconsistency between the assessment of an absence of any past residual earning capacity that was practical as opposed to theoretical, and the allowance to be made in the future. The primary judge rightly regarded Mr Fogg as a man with a strong employment history, notwithstanding his limited educational achievements. He had been continuously out of work since the injury, some six years prior to the trial. The reasons of the primary judge do not provide a basis for distinguishing between the absence of any practical residual earning capacity for the previous six years and the modest allowance for the future. Moreover, the onus of demonstrating a failure to exercise a residual earning capacity, whether past or future, lies on the defendant: Mead v Kearney [2012] NSWCA 215 at [16] and [25]. The conventional allowance for vicissitudes addressed the ordinary uncertainty relating to future contingencies."

The calculations prepared by the parties

1. Each of the parties has provided a schedule of damages. The plaintiff's schedule of damages is as follows: Date of injury: 11 March 2014 Date of birth: 29 December 1967 (54.25 years of age) Retirement age: 29 December 2034 (12.75 years) Multiplier1: 495.2 Earnings preinjury: $1,565 gross - $1,184 net per week Likely earnings 2022: $1,849 gross - $1,368 net per week PAST ECONOMIC LOSS 12/3/2014 - 8/4/2019: totally and partially incapacitated 9/4/2019 - 25/5/2021: totally incapacitated Total past loss per attached schedule: $449,839 Lost superannuation (at 11% of net loss) $49,483 Fox v Wood $54,541 FUTURE ECONOMIC LOSS Totally incapacitated Loss of $1,368 net per week x 495.2 x 0.85 $584,074 Lost superannuation at 14.16% 10% of $1,848 per week x 495.2 x 0.85 $82,705 Sub Total $1,220,643 Less weekly compensation paid ($272,707) TOTAL $947,936
2. The defendant provided the following schedule of damages: "Plaintiff's DOB 29 December 1967 (54 years old) Multiplier 502.3 Past economic loss Period one (while employed by defendant) 172 weeks (12/3/14-30/6/17) (Base rate at $1000.00 plus CPI of 2.7%) Loss approximates $32,500.00 247 weeks (1/7/17-date) (Base rate $1200-residual capacity $300 (15hrs x $20/h) Loss $900 x 247 = $ 222,300.00 Plus superannuation of 11% =$ 24,453 Past loss $ 279,253 Future loss $1200- $460 ($23/h x 20 hrs as service station attendant-vocational capacity report) Loss $740pw x 502.3-15%=$315,946.70 plus 12% superannuation ($37,913.60) =$353,860.30 Plus Fox v Wood $26,000.00 Sub-total $664,596.30-20% contributory negligence=$531,677.04 Less WC payments ($282,733.47) $215,713.76 Plus schedule 7 costs"

Calculating the sum

1. I have accepted all of the plaintiff's medical and vocational evidence. This is a very clear case of total loss of earning capacity. It really would be "mere speculation" for me to reduce the sums so carefully set out by the plaintiff in the Schedule of Damages, which I propose to award in full.

Concluding remarks and final orders

1. As set out above, I have found the defendant liable and I have not found that there is any basis for an assessment of contributory negligence. I have found that the plaintiff has been effectively totally incapacitated for any form of employment since his employment with the defendant was terminated such that he is entitled to judgment, or the amount set out in the plaintiff's schedule of damages.
2. Both parties asked me to grant liberty to bring in Short Minutes of Order reflecting the mathematically agreed calculation of the amounts in question, as there will be additional adjustments to be made to these sums sought in the schedules for the short period of time during which I have reserved this judgment.
3. As Mr Morgan notes in his submissions at paragraph 191, questions in relation to entitlement to costs and interest must await my judgment, conformably with the provisions of the Act.
4. I thank Mr Morgan and Mr Todd for their courteous and well-prepared preparation and presentation of the evidence, as well as for their helpful written submissions.

Order: 1. Judgment for the plaintiff, with liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum. 2. All other issues, including costs and interest, reserved, with liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2022