Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 (27 May 2008)

Last Updated: 28 May 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99


FILE NUMBER(S):
40327 of 2007

HEARING DATE(S):
13 March 2008

JUDGMENT DATE:
27 May 2008

PARTIES:
Clint Pollard - Appellant
Baulderstone Hornibrook Engineering Pty Ltd - First Respondent
Bilfinger Berger AG - Second Respondent

JUDGMENT OF:
Mason P Beazley JA McColl JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20465 of 2004

LOWER COURT JUDICIAL OFFICER:
Hislop J

LOWER COURT DATE OF DECISION:
25 January 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 15

COUNSEL:
Ms S Norton SC with Ms M M Fraser - Appellant
Mr R A Cavanagh - Respondents


SOLICITORS:
RTW & Associates - Appellant
Moray & Agnew - Respondents

CATCHWORDS:
NEGLIGENCE — contributory negligence — plaintiff injured when slipped on wet metal rails of truck tyre wash bay — whether failed to take reasonable care for his own safety — held no — EMPLOYER’S LIABILITY — employer’s non-delegable duty of care to employees — plaintiff employee of labour hire firm injured at premises occupied and controlled by third party — employee required to work at multiple third party sites delivering concrete — employer’s system of work did not address risk to employee at such sites — assessment of employer and third party’s respective liability for purposes of s 151Z(2)(c) Workers Compensation Act 1987 — held — discharge of duty required employer to adopt measures by way of warning and/or training to require employee to report dangerous conditions and seek instructions — held employer’s notional liability 20 per cent — DAMAGES — past economic loss — incapacity — future economic loss – whether buffer appropriate where plaintiff had engaged in virtually no remunerative employment prior to obtaining employment with labour hire firm - held yes.

LEGISLATION CITED:
Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Occupational Health and Safety Act 2000
Suitors' Fund Act 1951
Workers Compensation Act 1987
Construction Safety Regulations 1950

CATEGORY:
Principal judgment

CASES CITED:
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189
Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Carey v Lake Macquarie City Council [2007] NSWCA 4
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
English v Rogers [2005] NSWCA 327
Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246
Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340
Forstaff Blacktown Pty Limited v Brimac Pty Limited; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) 4 DDCR 179
Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hornsby Shire Council v King [2005] NSWCA 67
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
K'mart Australia Ltd v McCann [2004] NSWCA 283
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Magnou v Australian Wool Testing Authority Limited [2007] NSWCA 357
Maricic v Dalma Formwork (Australia) Pty Limited (2006) NSWCA 174
McDermid v Nash Dredging & Reclamation Co Ltd [1986] UKHL 5; [1987] AC 906
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Moran v McMahon (1985) 3 NSWLR 700
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313
Penrith City Council v Parks [2004] NSWCA 201
Pollard v Baulderstone Hornibrook Engineering Pty Limited & Bilfinger Berger AG [2007] NSWSC 15
Rabay v Bristow [2005] NSWCA 199
The Owners - Strata Plan 156 v Gray [2004] NSWCA 304
Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
TNT Australia Pty Limited v Christie (2003) NSWCA 47
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Tran v Younis [2006] NSWCA 188
Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63
Victorian Workcover Authority v Esso Australia Ltd [1998] VSC 150
Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wilson v Peisley (1975) 50 ALJR 207
Wilsons and Clyde Coal Co Ltd v English [1937] UKHL 2; [1938] AC 57

TEXTS CITED:


DECISION:
1. Appeal allowed in part. 2. Set aside the primary judge’s assessment of damages of $229,150.08 and in lieu thereof substitute a verdict and judgment for the appellant in the sum of $260,976.48. 3. Respondents to pay 25 per cent of the appellant’s costs of the appeal and appellant to pay 75 per cent of the respondents’ costs of appeal, such orders to be set off one against the other. 4. Appellant to have a certificate under the Suitors' Fund Act 1951 if so entitled in respect of the issue of contributory negligence.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No: 40327/07

SC No: 20465/04

MASON P

BEAZLEY JA

McCOLL JA

Tuesday 27 May 2008

Clint Pollard v Baulderstone Hornibrook Engineering Pty Ltd and
Bilfinger Berger AG

Judgment

1 MASON P: I agree with McColl JA.

2 BEAZLEY JA: I agree with McColl JA.

3 McCOLL JA: Mr Clint Pollard, the appellant, was a concrete agitator truck driver whose services were provided to Pioneer Construction Materials Pty Ltd (“Pioneer”) by his employer, Dependable Personnel Pty Ltd (“Dependable”), a body hire company. He was injured on 16 March 2001 when he slipped and fell on the surface of a wash bay while cleaning the tyres of his truck after making a delivery of concrete to the M5 East Motorway Project. Baulderstone Hornibrook Engineering Pty Ltd (“BHE”) and Bilfinger Berger AG, the respondents, were the head contractors for that project. The appellant brought proceedings against the respondents alleging his injuries were caused by their negligence and breach of statutory duty. Hislop J found the respondents guilty of negligence and awarded the appellant $286,437.60, a sum net of a deduction for 10 per cent by way of contributory negligence and 20 per cent on account of Dependable’s notional liability calculated in accordance with s 151Z(2)(c) of the Workers Compensation Act 1987: Pollard v Baulderstone Hornibrook Engineering Pty Limited & Bilfinger Berger AG [2007] NSWSC 15.

4 The appellant appeals from that decision, challenging four aspects of the award of damages: the finding that he was guilty of contributory negligence, the assessment of Dependable’s notional liability, the assessment of his past economic loss at $64,726 and the award to him of $120,000 by way of a buffer in respect of his loss of future earning capacity.

Statement of the case

5 The respondents were the head contractors for the construction of the M5 East Motorway Project. The primary judge found that they had the care and control and were the occupiers of, a truck wheel wash bay at the Kingsgrove Road entrance to the project site. Pioneer supplied concrete to the site in concrete agitator trucks. The appellant was employed to drive such trucks.

6 The circumstances of the appellant’s injury were explained by the primary judge (at [5]ff):

“5. An unsealed road provided on site vehicular access from Kingsgrove Road. At that entrance the unsealed road was divided for a short distance by a concrete barrier. Vehicles entering the site proceeded to the left of the barrier, vehicles leaving the site proceeded to the right, (looking from Kingsgrove Road). A row of water-filled plastic barriers were located to the right of the concrete barrier and parallel to it. A large pile of what was apparently dirt and/or gravel marked the left hand edge of the road.

6. The wash bay was located between the concrete and plastic barriers. It comprised a pit approximately 5 metres wide by 6 metres long and 0.6 – 0.9 metres deep. A grid of transverse metal rails was on top of the pit. The rails were estimated to be about 50 millimetres wide and the gap between them 150 millimetres. The appearance resembled an enlarged cattle grid.

7. The plaintiff gave evidence that at the time of his fall there was a piece of wire mesh ‘about a foot, foot and a half’ attached to the rails where a driver would alight from his truck if stopped on the wash bay and a somewhat longer piece of mesh on the opposite side of the wash bay extending about half its length. Two photographs (exhibit A) taken approximately 3 months after the fall showed the whole grid covered by steel mesh.

8. There was evidence that, when the site was wet such that mud and debris could attach to the tyres and underside of vehicles, the vehicles would stop at the wash bay where the wheels and underside of the vehicle would be washed before leaving the site. The purpose of this was to avoid mud and other debris being tracked onto public roads. Water hoses and a high-pressure hose were located at the wash bay for this purpose. When conditions were dry it was unnecessary to stop at the wash bay before leaving the site.

9. The plaintiff gave evidence that during the month prior to his injury he had delivered concrete to the site on a number of occasions using the Kingsgrove Road entrance. His estimate of the number of such occasions varied from 6 to 12. He had been instructed by Pioneer that when the site was muddy he was to stop at the wash bay and wash the wheels. On occasions, designated personnel would be present to wash the truck wheels and the plaintiff would remain in his truck whilst this occurred. On other occasions the designated cleaning personnel were not present and the plaintiff had alighted approximately half a dozen times from the truck and washed the wheels himself. He had observed other truck drivers do the same. He had not been instructed that he should not wash the wheels of the truck at the wash bay nor was there any sign to that effect.

10. The plaintiff gave evidence that on 16 March 2001 the site was muddy. He had delivered a load of concrete and proposed to leave via Kingsgrove Road. He stopped his truck on the wash bay. There were no designated personnel present to wash the tyres. He decided to wash them himself.”

7 The appellant’s account of the accident was that he walked off the mesh onto the metal rails. He turned sideways to start washing the first back tyre, then stepped backwards. His foot slipped between the iron bars down to his knee, he fell backwards and was injured.

8 The primary judge found (at [23]) that the respondents were negligent in substance because the grid in the wash bay exposed the appellant to a risk of injury which was foreseeable, and which could have been obviated by reasonably practicable precautions. He rejected the appellant’s submission that his injury was caused by a breach of statutory duties imposed by reg 73(2) of the Construction Safety Regulations 1950, finding (at [31]) that the Regulation did not apply.

9 After finding that the respondents were negligent, the primary judge considered their argument that the appellant was guilty of contributory negligence because he attempted to wash the wheels on the grid knowing his boots were muddy and the grid was wet, muddy and slippery when he could have carried out that operation from beyond a concrete barrier: primary judgment (at [32]). He made the following findings:

“33 The onus is upon the defendants to prove contributory negligence. I make the following comments as to the allegations of contributory negligence:

(a) There was evidence from Mr Robinson that there were approximately 60 vehicle movements in and out of the Kingsgrove entrance per hour. Many if not most of the vehicles involved would have been large trucks. There was no evidence as to the precise distance between the concrete barrier and the pile of dirt and/or gravel. There was evidence that the distance between the concrete barrier and the water-filled barriers on the day of injury was such as to leave a relatively small distance on each side between the barrier and the plaintiff’s truck. The photographs (exhibit A) suggest the distance between the concrete barrier and the pile of dirt and gravel was approximately similar to the distance between the concrete barrier and the water-filled barrier. In those circumstances there was a risk of grievous injury to a person standing outside the concrete barrier if struck by a truck. I do not consider the action of the plaintiff in not washing the wheels from outside the concrete barrier establishes a lack of reasonable care on his part.

(b) The plaintiff had not been directly required by the defendants to clean the wheels of his truck but had been so directed by Pioneer. This direction accorded with Mr Robinson’s intent. The plaintiff had been given no instructions by the defendants, Pioneer or his employer as to what course was to be taken in the event the designated truck washers were absent. In these circumstances in my opinion the fact that the plaintiff attempted to clean the wheels of his truck is not incompatible with the conduct of a prudent and reasonable person and is not evidence of contributory negligence.

(c) However the defendant was well aware of the conditions in which he placed himself. He should have taken particular care in moving on the grid. The evidence establishes that he took one step backwards. He gave the following evidence:

Q. Whilst you were walking across these metal grids, Mr Pollard, shortly before your accident were you looking at the grids?

A. I was looking at the tyre. I may have - I may have looked at the grid when I had one step backward, yes.

Q. So do you say that you were looking at the grid as you walked backwards; is that right?

A. I may have looked to see where I was stepping, yes.

Q. I take it though you weren't paying particular attention to the structure of the grid?

A. No, sir, not before the accident.”

10 His Honour concluded (at [33]) that this evidence demonstrated lack of care on the part of the appellant which he assessed at 10 per cent for the purposes of s 5R of the Civil Liability Act 2002.

Contributory negligence: submissions

11 Ms S Norton SC, who appeared for the appellant on appeal with Ms Michele Fraser but not at trial, submitted that there was no contributory negligence on the appellant’s part. She argued that the wash bay was inherently dangerous and that the appellant was guilty of no more than momentary inattention. which was not a sufficient basis for a finding of contributory negligence.

12 Mr R Cavanagh, who appeared for the respondents at trial and on appeal, submitted that the appellant’s conduct was deliberate. He argued that the appellant had decided to turn around after having walked forward looking where he was going and then, as he moved along the grid, walked backwards without looking where he was going.

Contributory negligence: conclusion

13 At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act which provides:

“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.”

14 The words “reasonable person in the position of that person” in s 5R are equivalent to the words “a reasonable person in the plaintiff’s position”: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects “the expectation that, in general, people will take as much care for themselves as they expect others to take for them”: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).

15 The appellant was not the respondents’ employee. Different considerations arise in the case of contributory negligence on the part of such persons: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (at [40]). In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (at 310).

16 The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff’s position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ.

17 Mr Cavanagh drew the Court’s attention to the appellant’s evidence that he knew the metal rails on which he was walking were muddy and slippery and, too, that there was mud on his boots. However, the primary judge’s finding (at [33](b)) that the appellant was not guilty of contributory negligence in attempting to clean the wheels, even in such circumstances, was not challenged by the respondents. The question whether the appellant was guilty of contributory negligence is confined to the narrow issue of whether he failed to take reasonable care for his own safety in taking a step backwards in the conditions in which he then placed himself: primary judgment at [33](c).

18 In my view, with respect to the learned primary judge, the plaintiff’s conduct in taking a step backwards in circumstances where he “may have looked to see where [he] was stepping” but “was not paying particular attention to the structure of the grid” did not amount to a failure to take reasonable care for his own safety even judged against the standard required by s 5R. Immediately before he fell he had already cleaned the offside front wheel and was hosing the first set of rear tyres without incident. As far as the evidence revealed, there was nothing unusual in the step he took immediately prior to his fall. In circumstances where the primary judge concluded the appellant was not guilty of contributory negligence in embarking upon the exercise of hosing the tyres on a muddy, slippery surface while wearing muddy boots, the single step he took backwards, albeit without paying particular attention to the structure of the grid, did not in my view amount to a failure on his part to take reasonable care for his own safety within the meaning of s 5R.

19 In my view the primary judge erred in concluding that the appellant was guilty of contributory negligence. As that finding led to a deduction of $31,826.40 from the appellant’s award, he is entitled to have that amount added to his verdict.

Section 151Z(2) Workers Compensation Act

20 The appellant did not sue his employer or Pioneer. In their defence the respondents pleaded (primary judgment (at [34])):

“(6) In the event that, because of the provisions of the Workers Compensation Act 1987, the first and second defendants are not entitled to contribution from the plaintiff’s employer, the first and second defendants rely on s 151Z(2)(c) of that Act such that to the extent that the first and second defendants are not entitled to recover contribution from the plaintiff’s employer, the damages (if any) payable to the plaintiff are reduced accordingly.“

and, in support (primary judgment (at [36]):

“(a) Dependable, as the employer of the plaintiff, owed to him the employer’s duty of care;

(b) if the defendants were in breach of the duty of care owed by them then Dependable was in breach of its duty to the plaintiff;

(c) the injuries sustained by the plaintiff on 16 March 2001 did not result in a degree of permanent impairment of the plaintiff that was at least 15%;

(d) accordingly no damages could be awarded against Dependable – see s 151H of the Workers Compensation Act 1987;

(e) thus the amount of contribution that the defendants were entitled to recover from Dependable as a joint tortfeasor pursuant to s 151Z(2)(d) was to be determined at nil;

(f) the damages recoverable by the plaintiff from the defendants were to be reduced by:

... the amount by which the contribution which the person would (but for this part) be entitled to recover from the employer as a joint tortfeasor.

(g) the amount of contribution should be assessed at 25%.”

21 As the primary judge observed (at [37]) the appellant conceded pars (a) – (f), but submitted Dependable’s contribution should be assessed in the range of 5–10 per cent, rather than 25 per cent.

22 The primary judge made the following findings as to the respondents’ and Dependable’s responsibility for the appellant’s injury:

“23 In my opinion the plaintiff has established negligence on the part of the defendants for the following reasons:

(a) The defendants were responsible for the presence and maintenance of the wash bay. The grid of the wash bay created a risk of injury to persons walking on it either by reason of the gaps between the rails or the wet and muddy surface of the rails which rendered the grid slippery when the wash bay was in use.

(b) It was a matter of common sense to perceive that a person could step or slip into a gap between the rails and that the presence of water and mud on the steel rails would enhance the risk of a person slipping – Australian Oil Refinery Pty Limited v Bourne (1980) 28 ALR 529.

(c) The risk was foreseeable and one of which the defendants knew or ought to have known. It was not insignificant and if it eventuated serious harm could result.

(d) There were a number of reasonably practicable precautions which, if taken, would have obviated the risk of harm. In particular the grid surface could have been rendered safe by extending the steel mesh which was present at the time of injury for the length of the grid; by placing steel mesh over the whole grid as was done after the accident or by instructing drivers directly or by a sign at the wash bay that they were forbidden to wash the wheels of their vehicles and indicating the steps to be taken in the event designated wheel washers were not present. These precautions, I infer, would be relatively inexpensive.

(e) I accept the evidence of the plaintiff and Mr Beatty that on a number of occasions it was necessary for them to alight and wash the wheels and the underside of their trucks at the wash bay when the designated wheel washers were not present and that this was done by them whilst standing on the grid.

(f) It is thus apparent that the system put in place by Mr Robinson was not always adhered to. Mr Robinson’s evidence was that no vehicle would be allowed to leave the site with dirty wheels. He undoubtedly would have expected Pioneer to inform its drivers of this as Pioneer did in the case of the plaintiff and probably also in the case of Mr Beatty.

(g) In these circumstances it was foreseeable that if the tyres were muddy and no designated wheel washer was present the driver would himself wash the wheels and may do so from a position on the grid.

(h) The evidence went no further than that the wash bay had been in place for a month before the plaintiff’s injury. It cannot be inferred from the fact that there had been no prior complaint, report or incident that either the grid was not slippery or that drivers did not stop there. This is illustrated in the case of Mr Beatty who stopped to wash his vehicle’s wheels and slipped on the grid yet there was no complaint or report to the defendants of that incident.”

As to Dependable:

“39 The defendants were responsible for the construction and implementation of the usage of the wash bay. Dependable had no direct involvement in the site or the wash bay nor was it involved in the plaintiff’s day-to-day work. However it was the plaintiff’s employer and as such owed to him a non-delegable duty of care. The risk to the plaintiff only arose when the site was muddy and the designated wheel washers were not at their post. Although there was a risk of slipping if one walked on the rails in wet and muddy conditions the intermittent nature of the problem made it perhaps unlikely a site inspection by Dependable would have put it on notice of the risk. In such circumstances the plaintiff should have been instructed by Dependable that if he encountered site conditions that involved risk to him he should notify Dependable or Pioneer immediately. Had this been done it seems to me likely the risk would have been removed either by the plaintiff being instructed by Dependable or Pioneer not to leave his vehicle for the purpose of washing the wheels or as a result of discussions between Dependable and Pioneer and/or the defendants leading to an alternative solution.”

23 Pursuant to s 151Z(2), his Honour assessed Dependable’s contribution at 20 per cent. This had the effect of reducing the appellant’s damages by the same percentage.

Section 151Z: submissions

24 Ms Norton’s written submissions argued that the primary judge should have attributed no more than 5–10 per cent to Dependable’s liability in circumstances where:

“(a) The Kingsgrove Road site was one of very many destinations to which the appellant was required to deliver concrete.

(b) The appellant only needed to use the wash bay when the site conditions were muddy.

(c) The wash bay was usually attended by cleaning staff who did the washing, so that drivers were rarely required to wash the wheels themselves.

(d) It would be impracticable for Dependable to make itself aware of every facility associated with every site its employed drivers attended.

(e) Dependable did not know what conditions would be like at the site from day to day and could not be aware when cleaning staff would not be available to wash the truck.

(f) There was no evidence that the appellant had recognised the wash bay as a safety hazard prior to the accident.

(g) Mr Beatty, a yard delegate, had similar experiences of the wash bay as did the appellant and had not reported it to Dependable as a safety hazard.

(h) Even if Dependable was notified by the appellant of the hazard, it was not demonstrated that Dependable had any right or power to enter the defendant’s premises. Dependable’s contract was with Pioneer. The most Dependable could practically do would be to raise the issue with Pioneer. There is no evidence this would be effective in dealing with the risk.”

25 Somewhat contradictorily, however, she next appeared to contend that the primary judge ought not to have attributed any liability to Dependable, arguing that the case was analogous to Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338, where the appellant fell from a ladder which was fastened insecurely to a tanker and the employer was found not to have breached its non-delegable duty of care in circumstances where it had no opportunity to inspect the premises.

26 In oral argument Ms Norton contended that the respondents had not discharged its onus of proving what Dependable could have done to discharge its duty of care. In addition to the matters I have set out, she drew attention to the fact that there was no evidence that the appellant had any means of contacting Dependable or even that it had someone to whom complaint could be made.

27 Mr Cavanagh submitted that the primary judge’s apportionment of responsibility between joint tortfeasors was a discretionary exercise, interference with which would only be warranted if manifest error were demonstrated.

28 He drew attention to the appellant’s evidence to the effect that after Dependable sent him to work for Pioneer, no one from Dependable had contacted him prior to his accident to see how he was going and that he received no training or instruction from that firm. He submitted that Dependable owed a non-delegable duty of care to the appellant which it could not discharge by doing nothing. He contended that attributing 20 per cent to Dependable’s liability was consistent with the Court’s general approach to the liability of employers involved in the labour hire industry, referring to Maricic v Dalma Formwork (Australia) Pty Limited (2006) NSWCA 174 and TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1.

Section 151Z: conclusion

29 Section 151Z(2) of the Workers Compensation Act relevantly provides:

“(2) If, in respect of an injury to a worker for which compensation is payable under this Act:

(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect:

(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages...”

30 The calculations s 151Z(2)(c) requires the Court to undertake were explained in Forstaff Blacktown Pty Limited v Brimac Pty Limited; Brimac Pty Ltd v Johnston [2005] NSWCA 423; (2005) 4 DDCR 179 (at [74]) as follows (including the names of the first respondent, BHE, and Dependable to make the exercise clear):

“(a) Section 151Z(2)(c) provides for a reduction in the damages the plaintiff worker may recover from a tortfeasor (the non-employer) [BHE] other than the employer tortfeasor [Dependable] in the proceedings which the plaintiff worker has taken for damages against the non-employer [BHE]: Grljak no 1 (at 88); Clout (at [29]); the worker’s entitlement to recover from the employer tortfeasor [Dependable] either directly or indirectly is to be no greater than if the worker had sued the employer tortfeasor [Dependable] alone, but the net burden on the non-employer [BHE] is not to be increased; Grljak no 2 (BC9601317 at 7); Clout (at [29], [38]);

(b) The figure used in s 151Z(2)(c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer [BHE] would (but for Pt 5) be entitled to recover from the employer tortfeasor [Dependable] as a co-tortfeasor or otherwise at common law; (ii) deciding what is ‘the amount of the contribution recoverable’ within s151Z(2)(c) and s 151Z(2)(d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker’s common law damages from the non-employer [BHE] are to be reduced: Grljak No 1 (at 88 – 89) Clout (at [29] – [31]);

(c) Where step (b)(ii) leads to the conclusion that the employer tortfeasor [Dependable] would have been liable to pay no damages if the plaintiff worker’s damages were calculated under Pt 5, Div 3, the whole of the figure derived after step (i) is deducted from the plaintiff worker’s damages: Grljak no 1 (at 89); Grljak no 2 (BC9601317 at 7) Clout (at [34]);”

31 The respondents’ defence that the injuries sustained by the appellant did not result in a degree of permanent impairment of the plaintiff that was at least 15 per cent with the consequence that, by virtue of s 151H of the Workers Compensation Act, no damages could be awarded against Dependable, appears to have been accepted at trial. It was not challenged on appeal. Accordingly the primary judge had to determine the amount of the contribution BHE would (but for Pt 5) be entitled to recover from Dependable as a co-tortfeasor or otherwise at common law: step (b)(i). He did this by determining the percentage of the respondents’ and Dependable’s respective liabilities at common law.

32 Because the appellant brought these proceedings against the respondents alone and, to all intents and purposes, in the absence of or prior to the hearing of contribution proceedings brought by the respondents against Dependable, the respondents bore the onus of proving the elements set out in s 151Z(2)(c) in order to obtain any reduction of damages: Forstaff (at [5]) per Hodgson JA; approved in Maricic (at [71]) per Basten JA (Beazley and Ipp JJA agreeing).

33 An employer owes an employee a non-delegable duty of care because “[t]he employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters [with the] consequence ... in these relevant respects the employee’s safety is in the hands of the employer; ... [i]f [the employer] requires his employee to work according to an unsafe system he should bear the consequences”: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 (at 687 – 688) per Mason J; see also New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 (at [259]) per Gummow and Hayne JJ.

34 The non-delegable duty rests on the employer “whether or not the employer takes any share in the conduct of the operations” (Wilsons and Clyde Coal Co Ltd v English [1937] UKHL 2; [1938] AC 57 (at 84) per Lord Wright) and however the business is formed or structured: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 (at [34]) per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

35 A person subject to a non-delegable duty cannot escape liability if the duty has been delegated and then not properly performed: Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 (at 331) per Brennan CJ approving Lord Hailsham of St Marylebone’s statement in McDermid v Nash Dredging & Reclamation Co Ltd [1986] UKHL 5; [1987] AC 906 (at 910); see also Northern Sandblasting per McHugh J (at 367- 368); (at 395) per Kirby J where the latter explained, referring to Lord Brandon of Oakbrook’s speech in McDermid (at 919):

“The obligation in such cases was held to be a personal one to ensure that the duty was fulfilled. Although, of its nature, it might have to be performed by servants or agents, its discharge could not be escaped by delegation. The party owing the duty was liable both for its own personal negligence and for any negligence on the part of its delegate.”

See also TNT (at [46]).
36 An employer’s non-delegable duty is one “... of a special and ‘more stringent’ kind”: Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 (at 550) per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. The employer must ensure that the duty is carried out; if the duty is to take reasonable care of some person or property, the person must ensure that reasonable care is taken: New South Wales v Lepore per McHugh J (at [144]). The duty extends to giving employees directions in the performance of their work where directions might reasonably be thought to be required to secure them from danger of injury (Kondis (at 689) per Mason J) and to devise a method of operation for the performance of the task that eliminates the risk, or adequately safeguards against it: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (at [12]). As Mason P (with whom Foster AJA agreed) said in English v Rogers [2005] NSWCA 327 after referring to this passage from Czatyrko:

“73 ...This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue.” (emphasis added)

37 In deciding whether an employer has discharged its obligation to establish, maintain and enforce a safe system of work, the Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to its commands: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 (at 313).

38 The employer’s duty of care is not modified because its employees are sent to work for a client. Indeed, in such circumstances the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care to its employees: TNT (at [67]) per Mason P.

39 The employer’s independent obligation to satisfy itself of the safety of the system of work in which its employees were engaged notwithstanding its employees worked at another’s premises was emphasised in Andar Transport (at [57]). Andar, a sub-contractor company, employed the plaintiff as a driver. Brambles engaged Andar to provide a truck and driver to deliver laundry to hospitals. The plaintiff was injured in the course of that work when attempting to free a trolley jammed in his truck. Brambles directed the plaintiff as to how to undertake his tasks: see [2]. Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ held (at [54]) that Andar was obliged to develop, and maintain, a methodology or system which would ensure that the plaintiff could carry out the relevant activity in a safe manner. Their Honours contemplated (at [57]) that the steps Andar could reasonably have taken to reduce the likelihood of injury involved changes in the system of delivery devised by Brambles.

40 Many labour hire cases concern an employee sent to work at another’s premises where there is an opportunity for the labour hire firm to ascertain the system of work. Thus, in TNT the plaintiff was employed by an employment agency, Manpower Services (Australia) Pty Ltd which assigned him to work at a brewery operated by TNT. The plaintiff was injured when a walk-behind forklift (a “pallet jack”) he was using to pick up beer orders malfunctioned and moved backwards over his foot. The pallet jack was owned and serviced by Crown Equipment Pty Ltd and leased to TNT. Manpower paid the plaintiff’s wages when due. A Manpower representative came to the brewery once a week and was aware of the general nature of the plaintiff’s work, but the visits were primarily concerned with administrative matters: judgment at [5]. It appears that the fault in the jack was intermittent, was apparently repaired by Crown, but resurfaced without warning: judgment (at [74] – [75]). After the accident, the cause of the problem was identified as a faulty handle which was replaced: judgment at [90]. The trial judge held that Manpower owed the plaintiff a non-delegable duty of care due to the employer/employee relationship and, too, that TNT owed the plaintiff duties analogous to the duties of an employer having regard to the daily control and instruction that TNT gave him: judgment at [37]. He attributed 25 per cent responsibility to Manpower and 75 per cent to TNT: judgment at [27].

41 The trial judge reached that conclusion, in part, because he held that Manpower breached its duty of care in failing adequately to instruct and provide proper assistance to the plaintiff in the performance of his duties: see judgment (at [76]). Mason P observed (at [77]) that there was “much force in Manpower’s challenge to this conclusion, based upon the absence of evidence or specific findings referable to instruction by Manpower about the proper use of the jack, and the linkage (if any) between absence of such instruction and the injury”. However he concluded that the trial judge’s finding that Manpower was negligent in failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake his tasks was open to him in the light of Manpower’s non-delegable duty to the plaintiff: judgment at ([79] – [92]). In rejecting Manpower’s challenge to the primary judge’s apportionment of liability, Mason P emphasised (at [97]) his remarks about employment bureaus not being able to abdicate their continuing responsibility to their employees with respect to safe plant and equipment.

42 In Maricic the plaintiff was injured when he put his foot into a “penetration” in a concrete floor while working at a construction site. He was employed by Dee Why Enterprises Pty Ltd, which contracted out his services to a formwork subcontractor, Dalma Formwork (Australia) Pty Ltd which, in turn, was a subcontractor of Bovis Lend Lease Pty Ltd, the project manager of the construction site. Dalma had appointed a supervisor, Mr Uremovic, whose services were supplied by Dee Why. Mr Uremovic was responsible for ensuring that Dalma carried out its contractual obligations under the formwork sub-contract with Bovis: judgment (at [59]). Basten JA (with whom Beazley and Ipp JJA agreed) held (at [75]) that Mr Uremovic’s knowledge should be attributed to Dee Why because he was supplied by Dee Why to carry out that function. Although Basten JA was of the view that it was not clear what specific steps could reasonably have been taken by Dee Why, presumably to discharge its non-delegable duty, he concluded it was possible to infer that a senior manager from Dee Why might have inspected the site with Mr Uremovic during the two or three weeks between the time it took over the employment of the men and the date of the accident and that, had that step been taken, it might have been reasonable to expect that the penetration, and the potential risk it created, might have been identified: judgment (at [75]). In such circumstances an apportionment of 20 per cent liability to Dee Why was appropriate.

43 Two cases where the labour hire firm had apparently done nothing to familiarise itself with the conditions of the workplace to which it had sent its employee deserve mention. In Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63 the Victorian Court of Appeal (Ashley JA, Chernov JA and Mandie AJA agreeing) held that a labour hire firm which had sent its employee to work at Carrier without showing any interest or concern for his safety was 35 per cent responsible for his injury and the occupier 65 per cent. In Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203 a labour hire organisation, Challenge, sent an employee to work at Carrier’s warehouse. It did nothing to ensure safe working conditions at the warehouse, not even visiting the site to see what the working conditions were: judgment (at [47]). It promoted its labour-hire services by stating that it “is an essential requirement of our start of business with any client that we conduct an occupational health and safety audit and a risk assessment of the work site and practices of the host employer”: judgment (at [50]). The plaintiff was injured because a ladder on which he was standing was not properly secured. Giles JA (Beazley and McColl JJA agreeing) upheld the trial judge’s finding that that injury was caused by a failure in the system of work which was a breach of Challenge’s non-delegable duty of care and, too, that there had been a direct breach by Challenge in its failure to instruct the plaintiff as to the use of ladders: judgment (at [48]). In his Honour’s opinion (at [50]) “[i]nstruction may well have had a material effect on the plaintiff’s ascent of the ladder in the warehouse”.

44 TNT and Maricic were what might be called single-site cases, where it is apparent that the employer had had an opportunity to inspect the premises to which it had assigned its employee. In seeking to diminish Dependable’s notional liability, Ms Norton emphasised that the M5 East Motorway Project was one of many destinations to which the appellant was required to deliver concrete. She argued that it would be impracticable for Dependable to be aware of conditions at every site its employees attended.

45 It has been accepted that the question whether the employer’s non-delegable duty is discharged where an employee is working at a third party’s premises depends upon such matters as “the employer’s opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors”: Bourke v Victorian WorkCover Authority [1998] VSCA 24; [1999] 1 VR 189 (at [19]) per Winneke P (Brooking and Buchanan JJA agreeing).

46 The remoteness of the third party’s premises was a factor in determining the extent of the employer’s liability in Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246. The plaintiff, an employee of AFCO, a body hire firm, was injured when he fell from his bunk onto the hard floor in the sleeping quarters of a Bass Strait Oil platform operated by Esso. AFCO had the right to visit the premises and, if necessary, make recommendations if it believed that the safety of a worker was at risk: see at first instance, Victorian Workcover Authority v Esso Australia Ltd [1998] VSC 150 at [10] per Cummins J. The trial judge apportioned 80 per cent of liability to Esso and 20 per cent to AFCO, a conclusion upheld by the Victorian Court of Appeal (Winneke P, Tadgell and Chernov JJA agreeing). Winneke P held (at [21]) that the trial judge had not erred in concluding that Esso was primarily responsible for the plaintiff’s injury because it was the occupier and person in control of the premises where the injury occurred and the premises were not easily accessible to the employer for day to day inspection or observation of defects. Esso was reversed in Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520 but not on a point which affects this aspect of the case.

47 In Atkinson, the plaintiff was injured in Thailand, a destination to which he had travelled to seek to sell his employer Gameco’s gas burners to a Thai company. After having been there for a relatively short time, he fell off a ladder in the Thai company’s premises when the ladder became detached from a tanker to which it should have been secured. Ipp JA (with whom Giles JA and Hunt AJA agreed) accepted that the fact that premises are in the control of a third party will be a relevant factor in considering whether an employer has discharged its duty of care. He cited, with approval, the passage from Bourke (at [19]) to which I have referred. He held (at [20]) that Gameco’s duty of care did not extend to the Thai premises, in part because it had no opportunity to inspect those premises, had no knowledge of the particular danger and “virtually no capacity to shield [the plaintiff] from the danger that materialised”.

48 The fact that the plaintiff was injured at premises not controlled by the employer was also an important factor for the majority decision (Hodgson and Ipp JJA, Spigelman CJ dissenting) in favour of the employer in Estate of the Late M T Mutton by its Executors & R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340. In that case, the plaintiff, Mr Kelman, a truck driver employed by the respondent in a transport and haulage business which involved delivery of grain, fertilizers and gravel “to destinations ‘spread far and wide all up the eastern half of Australia’” (judgment at [76]) was seriously injured when, while off-loading grain on a farm owned by the appellants, his shirt was caught in an unguarded auger used in the off-loading process while he was attempting to roll back a tarpaulin he had left covering the load. He took proceedings against the appellants for the damages he sustained in consequence of his injuries. The appellants cross-claimed against the respondent for an indemnity or contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of any amounts (including costs) which they might be ordered to pay Mr Kelman. The cross-claim alleged that the respondent, as Mr Kelman’s employer, owed him a duty of care “to provide him with a safe place of work” which it had breached, alternatively that it had breached various provisions of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001. The particulars of the alleged breach were that the respondent had failed to instruct its employees to remove the tarpaulin from the back of the truck before off-loading the grain. The action between the appellants and the plaintiff settled. Sully J dismissed the cross-claim.

49 On appeal, all members of the Court regarded it as important that the accident did not occur at a property controlled by the employer. Ipp JA observed (at [146]–[147]):

“146 Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer’s own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, working conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work.

147 In the present case, it was not reasonably possible for the respondent to have devised and implemented a safe system of work dealing with the specific circumstances involving the appellant’s auger and the particular circumstances that obtained on the appellant’s farm. The respondent was not aware of those circumstances and, in my view, considerations of reasonableness did not require it to be aware of them. Additionally, the respondent had no control over the auger and was not in a position to take appropriate measures to guard it. That is not to say, of course, that the respondent did not owe Mr Kelman a duty of care in the general terms expressed in Czatyrko v Edith Cowan University at 842 to 843, [12]. The means by which the respondent was required to discharge that duty, however, must be determined by the particular circumstances.”

50 Hodgson JA (at [53]), who agreed with Ipp JA that the respondent was not guilty of negligence, also noted the importance that “the accident in this case occurred at a property not under the control of the employer, by reason of a danger also not under the control of the employer, of which the employer had no knowledge.” Spigelman CJ (at [8]) considered that the facts that the plaintiff undertook his work on premises, and with equipment provided by the a third party was “relevant, but not determinative.... on the issue of breach”.

51 Ipp JA was of the view (at [187]) that it was a sufficient discharge of the employer’s duty to the plaintiff for it to be satisfied that he was an experienced driver with considerable experience in working with augers, including unguarded ones. Hodgson JA (at [56] – [57]) concluded that as adopting the measure for which the appellants contended would still have left the plaintiff exposed to a similar risk upon which the appellants had not relied, the trial judge’s conclusion that the respondent was not negligent should be upheld. Spigelman CJ (at [12]) would have found the respondent guilty of negligence in failing to require drivers to pull back the tarpaulin prior to the progressive elevation of the trailer, a practice apparently adopted by other drivers undirected.

52 As I have noted, Mr Cavanagh submitted that the primary judge’s assessment of Dependable’s notional liability at 20 per cent was consistent with the Court’s general approach to the liability of an employer engaged in the labour hire industry. However notwithstanding the fact that that percentage has been found in such cases, it “should not be treated as a standard; rather the liability of the employer must be assessed on the facts of each case”: Maricic (at [74]) per Basten JA (Beazley and Ipp JJA agreeing). With that in mind I turn to consider the evidence.

53 When the appellant applied for work with Dependable in mid–2000 he was required to fill in an application form. Then, Dependable placed him with Pioneer to drive concrete trucks. Henceforth, leaving aside his wages which came from Dependable, all his dealings were with Pioneer. He could not recall anyone from Dependable discussing with him any difficulties he might be having performing his work nor gave him any training or instructions.

54 The appellant had been working for Dependable for 11 months before he was injured in March 2001. He started work at Pioneer’s premises at around 6.30am and, over a period of 10 hours, transported concrete to various locations and building sites. When he arrived at a location he would drive into position and unload the concrete he had carted. The first time he had attended the M5 site was a couple of weeks before his accident. When he entered the M5 site Pioneer’s yard delegate instructed him that before leaving the site he was to stop the truck and wash the wheels. He had visited the M5 site on about six occasions prior to his accident, on some of which he had not stopped to wash his wheels, on other occasions there had been personnel present ready to wash the wheels and on other occasions he had washed the wheels himself.

55 The appellant could not remember seeing anyone, or being approached by anyone from Dependable while he was on the M5 site. He also could not be sure whether or not he had met any occupational health and safety officer from Dependable. It was Pioneer’s yard delegate, Peter Beatty, who gave him instructions about what to do on leaving the sites, namely to stop the truck and wash the wheels. He was not given any instructions by anybody from the first respondent about what to do in that respect.

56 Prior to his accident, the appellant had not received any written or oral instructions about the wheel cleaning protocol at the M5 site, nor any instructions to the effect that he was not to get out of the truck to clean his wheels or was not to clean the wheels while occupying a position on the grid.

57 Mr Beatty gave evidence in the appellant’s case. He had delivered concrete to the M5 site on behalf of Pioneer during the calendar years 2000 and 2001. Although it appeared he had delivered concrete on a fairly regular basis to the M5 site, he said the routine at the Pioneer base was that drivers were allocated jobs each day and, as I understand his evidence, that there was no certainty that the driver might visit the same site again. Despite this it appeared he had delivered concrete to the M5 site every day over the period he had driven Pioneer agitator trucks. He had been given instructions that the wheels of the truck had to be cleaned before departure from the site, an instruction he said was “pretty common on most building sites”.

58 Dependable must have known that Pioneer’s system of work exposed the appellant to different site conditions throughout the day. In my view it was incumbent upon Dependable, in order to discharge its non-delegable duty of care to the appellant, to ensure that a reasonably safe system of work was devised which ensured that the appellant could carry out work of an ambulatory nature with safety. It was clearly foreseeable that there may be a risk of injury at any of the numerous sites the appellant could be expected to visit on any given day to deliver concrete. The fact that the appellant was required to visit so many construction sites and that Dependable could anticipate that there would be a variety of hazards at each site to which the appellant might be sent, underlined the necessity to give him adequate instructions and guidance about what to do if he encountered conditions which exposed him to a risk of injury. In my view to discharge its non-delegable duty of care, Dependable had to adopt measures by way of both warning and/or training to require persons such as the appellant to report dangerous conditions and to seek instruction as to what to do in the circumstances: TNT (at [67]). I discern no error in the primary judge’s inference (at [39]) that in such circumstances the appellant would have been instructed by Dependable or Pioneer not to leave his vehicle for the purpose of washing the wheels or that discussions between Dependable and Pioneer and/or the respondents would have led to an alternative solution being devised.

59 The solution the primary judge regarded as, in effect, the minimum discharge of Dependable’s duty of care to the appellant was a practical one, consistent with the sort of obligation Mason P anticipated, in TNT, would devolve upon an employer sending its employee to work at a third party site. The duty the primary judge identified did not cast an onerous burden on Dependable or the appellant. I cannot accept Ms Norton’s submission that the absence of evidence that the appellant had a means of communicating with Dependable undermined the primary judge’s conclusion in this respect. Leaving aside the opportunity the appellant had on the particular day of the accident to advise Dependable of the conditions at the M5 site, he had visited the site on many occasions prior to his accident, was familiar with the system by which the wheels were washed and could have informed Dependable on any one of those occasions of the risk to which he was exposed in having to wash the wheels according to the system the respondents had imposed.

60 Atkinson is distinguishable, in my view, as, too, is Mutton. In Atkinson the plaintiff had never visited the Thai company’s premises before. Further the danger was latent – it was not apparent until the ladder from which the plaintiff fell actually detached, that it was not properly secured to the tanker. Finally, the act of negligence was said to be a casual one, and not part of any system of work: see Atkinson (at [26]).

61 In Mutton, Ipp JA emphasised the absence of control over the farmer’s premises as militating against a conclusion that the employer had breached its duty of care, the large distances over which Mr Kelman undertook his tasks, and, too, the possibility that farmers could make changes without any notice to the employer and without any opportunity for the employer to exercise control. The respondents here do not suggest that Dependable’s negligence lay in not exerting control over their system of work. Rather, they direct their criticism at Dependable’s system, more properly the absence of any system which could reasonably have ensured the appellant was not required to work in situations of risk. A system which enabled him to report the risk to his employer and seek its assistance was a moderate requirement in the circumstances.

62 The appellant’s submission that the respondents have not discharged their burden of proving that Dependable failed to discharge its non-delegable duty of care should be rejected. Further, in my view, the primary judge did not err in attributing 20 per cent responsibility to Dependable. Although, as I have observed, there is not a standard tariff in such cases, it is not irrelevant to have regard to the range of percentages which have been attributed to employers in similar situations. That range shows that the figure of 20 per cent was well within his Honour’s discretion whereas the figure of 5 – 10 per cent which the appellant suggests is well below it. The appellant has not established any error on the primary judge’s part which would warrant interfering with his discretionary determination of that figure.

Damages

63 The primary judge dealt with the medical evidence as follows:

“63. Considerable medical evidence was placed before the Court. As is often the case there was a divergence of opinion between the experts. Neither counsel contended for the most extreme positions presented by the evidence. Each accepted the plaintiff had some pre-existing spinal pathology and that there was some ongoing partial incapacity attributable to the fall on 16 March 2001. The extent and impact of the ongoing incapacity was the subject of dispute particularly in respect of the plaintiff’s work capacity.

64. I have considered the evidence of the medical experts and associated health care professionals. I have had particular regard to the opinions of the treating specialist, Dr Maniam and Dr Bodel whose report was obtained by the defendants but relied upon by the plaintiff. I have also had regard to the evidence of the plaintiff and his mother and their demeanour when giving evidence. I have concluded, after weighing all of the evidence that the probabilities are as follows:

(a) the plaintiff has a pars interarticularis defect and a spondylolisthesis in the lumbar spine. These conditions pre-existed the fall on 16 March 2001 but were asymptomatic;

(b) there was no evidence the plaintiff had suffered a previous injury to his back or back pain other than in relation to a temporary muscle strain in 1996;

(c) in the fall on 16 March 2001 the plaintiff sustained damage to the L4/5 and L5/S1 discs. The damage presented radiologically as a mild disc bulge at L4/5 with a moderate disc bulge at L5/S1. There was an absence of neurological deficiencies on clinical examination. There was some aggravation of the pre-existing condition of the spine as well;

(d) the disc injuries were not severe but did give rise to pain in the back and legs which continues to some degree to the present time. The lesion at L5/S1 appears to be reducing in size which is a hopeful prognostic sign;

(e) the injury on 9 September 2003 exacerbated the condition which was the consequence of the injury on 16 March 2001;

(f) the aggravation which occurred on 9 September 2003 was of a temporary nature. I accept the plaintiff’s evidence he had returned to his pre 9 September 2003 condition within 12 months of that event;

(g) I accept the plaintiff was concerned and unhappy to have sustained injury and lost his job driving. The plaintiff did not seek any psychiatric assistance. I do not accept he has or is likely to suffer any significant psychiatric condition as a result of the fall;

(h) the defendant submitted the plaintiff exaggerated his symptoms and incapacities. This was the opinion of a number of medical and health professionals who had examined the plaintiff. I accept that submission. The plaintiff’s mother’s evidence was that for the first three months following the injury the plaintiff couldn’t do anything at all, he was pretty much bedridden on his back most of the time. The plaintiff gave similar evidence. He said it was very difficult to do anything other than lie on his back for the first three months, that he could barely walk or move during that time. This is to be contrasted with the objective facts revealed by Dr Eshrogi’s certificates and the fact the plaintiff on 3 April 2001 was representing himself to Pioneer as fit to resume his pre-injury employment. There was also confirmation in the fact that the plaintiff, on settling his Workers Compensation claim in March 2002 proceeded to buy a new 250cc motorbike which he enjoyed riding. This was contrary to the history he gave to Dr Maniam that his injuries precluded him from riding a motorbike and was inconsistent with the level of disability complained of;

(i) in my opinion the plaintiff was for all practical purposes totally unfit for work from the date of injury to 2 April 2001 and for approximately 12 months following the aggravation on 9 September 2003. Otherwise he has been fit to perform a wide range of employment duties including (as he conceded he has returned to his pre 9 September 2003 condition) work as a concrete agitator truck driver and most forms of light to moderate work, including, in particular, work as a courier, salesman and the like. He is however permanently unfit for employment which involves work of a heavy manual nature;

(j) there is a possibility that had the plaintiff not suffered the injury on 16 March 2001 the pre-existing condition ultimately would have incapacitated him for heavy manual work in any event;

(k) it is improbable the plaintiff will require spinal surgery as a result of the fall on 16 March 2001.”

64 I infer that the primary judge’s reference in (h) is to Dr Maniam’s report of 23 October 2003, which stated:

“In view of the multiple problems that are noted in the lumbar spine, I do not anticipate a recovery to be made. He will experience residual pains and stiffness and there will be a limitation of functional capacity and his ability to return to manual work.”

65 The reference (at [64]) to Dr Bodel’s report is to the report of 29 January 2002 stating:

“This patient had a fall at work on 16.3.2001 and clinically he has probably suffered a disc rupture at the L4/5 level and possibly at L5/S1. The patient’s complaints are not quite genuine. He has no evidence of nerve root irritability and therefore surgery is not required but the patient does require continuing exercise to strengthen the back and abdominal area and this will enhance function.

The patient should be able to contemplate a graded reintroduction to light duty work, initially on a part time basis. With improved physical fitness levels he may be able to return to his pre injury style of work which is not particularly heavy as I understand it.”

66 The primary judge assessed the appellant as 30 per cent of a most extreme case: s 16, Civil Liability Act 2002. Accordingly, he awarded him $98,000 for non-economic loss.

67 The primary judge noted (at [79]), and implicitly accepted, the respondents’ submission that, but for a period of eight weeks after the initial injury and a period of one year following an aggravation of his injury on 9 September 2003, the appellant should be assessed on the basis that he had a significant retained earning capacity. His Honour assessed past wage loss as follows (at [80]):

“(a) 17 March 2001 - 12 May 2001: 8 weeks at $615.00 per week: $4,920.00;

(b) 13 May 2001 – 26 June 2003 at $200.00** per week: $23,000.00;

(c) 27 June 2003 – 9 September 2003: no loss as employed by Adecco;

(d) 10 September 2003 – 10 September 2004: full loss for 52 weeks at approximately $675 per week = $35,100.00 less the Workers’ Compensation payments from Adecco $22,894.00: $12,206.00;

(e) 11 September 2004 – 25 January 2007: at $200.00 per week: $24,600.00;

(f) the total allowance for past wage loss is $64,726.00;

(g) interest on past loss of wages at 4.67%: $3,022.00;

(h) loss of past superannuation $5,502.00;

(i) interest on loss of past superannuation at 4.67%: $256.00.”

** As the appellant was earning $615 a week before the accident, the award of $200 per week indicates the primary judge was of the view that the appellant retained two-thirds of his earning capacity.
68 As to the appellant’s future earning capacity, the primary judge concluded (at [86]) that there were “sufficient imponderables to make it appropriate to award a cushion rather than to attempt a precise mathematical approach”, based on the following assessment of the appellant’s prospects:

“81. The plaintiff gave evidence he enjoyed his job as a concrete agitator truck driver and had intended to continue in that employment. I accept that evidence particularly having noted the contrast between his commitment to that job compared to his prior work record.

82. However whether, uninjured, the plaintiff would have continued in that work is uncertain. He was not directly employed by Pioneer. A dispute between Pioneer and Dependable could result in the job being lost. Similarly a downturn in the building and construction industry, ill health on his part or the loss of his licence (this had occurred on at least two occasions) or an altercation between him and Pioneer or Dependable among other possibilities could have seen the job lost. If the plaintiff had lost his job as a concrete agitator truck driver his employment record irrespective of injury may have resumed the appearance which it had taken prior to the 9 months he worked for Dependable. Regard must also be had to the usual vicissitudes in so far as such have not been referred to above. This, it seems to me, makes it difficult to accept the proposition that uninjured the plaintiff would have earned the wages of a concrete agitator truck driver from the date of injury to age 65.

83. There is also difficulty in determining what value should be placed upon the plaintiff’s retained future earning capacity. I have found he could do his pre injury job as a concrete agitator truck driver. If he obtained such a job he would suffer no loss of income. I have found he could do other jobs the income from which would be similar to that of a concrete agitator truck driver. If he obtained such employment he would suffer little or no financial loss.

84. However he has been out of the workforce for some time and may have difficulty finding employment. The job journal suggests this may be the case although the plaintiff’s motivation to find employment may well improve when this case is behind him. Nevertheless he lacks any formal job qualifications and will not be able to fall back upon heavy manual work should other employment not be available to him. If that scenario eventuates a not insignificant wage loss could result.

85. The situation is further complicated as there is the possibility the pre-existing back condition may result in incapacity in the future.

86. It is impossible to confidently predict what the plaintiff’s future may hold. There are sufficient imponderables to make it appropriate to award a cushion rather than to attempt a precise mathematical approach to this problem.

87. The defendant has submitted a cushion of $50,000 would be appropriate. In my opinion a somewhat higher assessment of the plaintiff’s possibility of loss is required. In my opinion the sum of $120,000 in which I would include the plaintiff’s entitlement to compensation for loss of future superannuation would be appropriate and I award that sum.”

Damages: submissions

69 Ms Norton submitted that the primary judge's approach to the assessment of the appellant's past economic loss was flawed because, she contended, his Honour should have given little or no weight to the evidence supporting the proposition that the appellant was fit to return to work in early April 2001. She submitted that while the appellant had believed he was capable of performing his pre-injury duties on 27 March 2001, in fact when he returned to work he had lasted only half an hour. She relied upon Dr Searle's statement, in the course of cross-examination in response to a question whether the plaintiff returning to truck driving in June 2003 was an indication that he was fit for that work, that "... patients consider themselves [sic, fit] for a lot of things they are not fit for."

70 Ms Norton also drew attention to the fact that the appellant had been certified unfit for work in about June 2001, a certification which appeared to continue spasmodically until January 2002 as reflected in medical certificates issued by Dr Zecevic. She contended the primary judge appeared to have overlooked these certificates.

71 Ms Norton drew attention to the fact that the appellant had applied for various jobs which did not involve driving but had not obtained them. She accepted that the appellant could do work which did not involve lifting. She relied upon the fact that it had not been put to the appellant that the reason he had not obtained employment was because he had exaggerated his injuries to putative employers or because he had not really been serious. She conceded that it had been put to the appellant that if he had applied for those jobs, he must have felt able to perform the tasks involved.

72 As to the future, Ms Norton conceded that the primary judge was faced with a difficult task, having regard to the appellant's erratic work history: he had left school at 15 and undertaken little employment until he obtained employment as a concrete truck driver. The appellant had accepted in cross-examination that after he left school he spent about as much time on the Newstart Allowance, as he had working prior to his employment with Dependable. However she contended that the appellant would have remained a concrete truck driver as that had apparently been his life-long goal, an ambition which could not be realised until he was 24 as, it appeared, it was not until that age that he could have been employed in that capacity. There was no independent evidence of this proposition, but it appears to have been accepted by the parties at trial.

73 Ms Norton also drew attention to the fact that the respondents had conceded in their schedule of damages at trial, that the appellant had lost 50 per cent of his earning capacity, that is to say, a wage loss of $300 per week, which was greater than the sum of $200 per week the primary judge had adopted without explaining why he had rejected the respondents’ concession. While she accepted that the primary judge was not bound by the concession, she complained that he had not explained why he had not accepted it.

74 Mr Cavanagh submitted that the primary judge did not err in his assessment of the appellant's loss of earning capacity at $200 per week. He argued that the primary judge was entitled to approach the case not merely by reference to the medical reports, or the respondents’ concession, but by assessing the evidence of what the appellant said he could do, and what he was doing.

75 He submitted the primary judge’s finding that the appellant retained two-thirds of his earning capacity was within the range of conclusions open to him on the evidence. He also drew attention to the fact that although the primary judge had awarded the appellant $200 per week for the period 13 May 2001 to 26 June 2003, the appellant had worked part-time for eight months from July 2002 in his brother's butcher shop, and had earned $7,000. He submitted that the evidence indicated that the appellant was fit for a wide range of jobs other than for the periods for which he was awarded full loss of income. Mr Cavanagh noted that the appellant's treating general practitioner said he was fit for normal duties as at April 2001, a month or so after he was injured, and that the appellant gave evidence as to his fitness for work at that time.

76 For the final period from 11 September 2004 to 25 January 2007, Ms Norton submitted that the appellant had demonstrated a loss of past earning capacity commensurate with his periods of unemployment because he had looked for a wide range of work and would do any such work if he could find it. Accordingly she contended his past economic loss for this period should have been assessed at $720 per week. As to this Mr Cavanagh contended that it was based on a factual premise, that the appellant had been totally incapacitated for all forms of work during this period, which premise was contrary to the evidence. He contended that the fact that the appellant was not able to find work for some period did not lead to the conclusion that he lacked all earning capacity.

77 Ms Norton also submitted that the primary judge erred in awarding the buffer of $120,000 for future wage loss, which was equivalent to 21 per cent of net average weekly earnings over his expected working life. She argued that the primary judge's assumptions included a finding that the appellant was capable of doing his pre-injury job, which was against the appellant's evidence and the weight of medical opinion. She contended that although the primary judge also found that the appellant's motivation to work might improve when the case was over, he did not find that any improvement in motivation would necessarily lead to employment. She relied on the primary judge's finding that "a not significant wage loss" could result if the appellant could not find employment other than heavy manual work. Further, Ms Norton noted that the appellant had been unable to find work other than heavy manual work, and that his attempts to do administrative work had led nowhere. This, she submitted, was consistent with the report written by Dr Maniam on 16 May 2005. She also relied on the following passage in Dr Maniam's report to support the contention that the appellant's injury was likely to cause absenteeism so as to render him an unreliable employee, and that there were prospects for early retirement:

"He seemed to be significantly disabled but is attempting to rehabilitate himself. He appears to be motivated and after attending the recent courses seems to have adopted a more positive attitude. However, in his present condition it will be unlikely for him to convince any prospective employer to give him a position. Should this eventuate, there will be periods of absenteeism when the pains are aggravated. On the long term, it would seem that there will be prospects for an early retirement. Hence his working life has been shortened somewhat."

78 Ms Norton contended that the primary judge should have assessed the appellant's loss of future earning capacity on the basis that the loss would be no less than 50 per cent of average weekly earnings less 15 per cent for vicissitudes.

79 Mr Cavanagh said that the respondents’ case on damages at trial was that the appellant had sustained an injury and consequent disability, but that he had exaggerated his continuing incapacity. They had argued that the medical reports did not accurately disclose the extent of the appellant’s incapacity when compared with what the appellant was actually doing. He submitted that the primary judge was entitled to, and did, reject the view of the appellant’s medical practitioners and decide the case on the basis of what the appellant said he could do, and when he was doing it. Thus he submitted it was relevant that the appellant had felt able to return to work soon after the accident. Further, he noted that once the appellant settled his workers compensation claim in March 2003, he bought a motorbike which he rode until 2004 when he had to sell it due to his financial position. He had felt well enough in July 2002 to commence employment in his brother’s butcher’s shop where he stayed for eight months. In June 2003 he had returned to work as a concrete truck driver with Adecco, a position he held until he aggravated his back injury doing labouring work.

80 Mr Cavanagh submitted that the primary judge had not erred in his approach to future economic loss, and that the approach the appellant contended for was merely an alternative approach to that which was open to the primary judge. He contended that the fact that the appellant had not been able to find work did not entitle him to a full loss of income.

Damages: conclusion

81 Damages for both past loss and future loss are allowed to an injured plaintiff "because the diminution of his earning capacity is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ. In order to determine a plaintiff’s lost earning capacity and determine what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained, it is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. What a worker earned in the past may provide useful guidance about what would have been earned if that worker had not been injured, but insofar as the future is concerned, the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] - [8] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

82 The setting aside of an award of damages in a trial where there is neither a challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence, should be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable: Wilson v Peisley (1975) 50 ALJR 207 (at 209) per Barwick CJ; see also Moran v McMahon (1985) 3 NSWLR 700; The Owners - Strata Plan 156 v Gray [2004] NSWCA 304 at [41] per Sheller JA, Gzell J agreeing. Requiring this level of error before appellate intervention is warranted reflects the fact that the task of assessing damages for lost earning capacity is "necessarily impressionistic": Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).

83 While it has been said that the Court is in a better position to determine the extent to which a loss of earning capacity "is or may be productive of financial loss" when considering the closed period between accident and trial (Tran v Younis [2006] NSWCA 188 at [12] per Handley JA, Hislop J agreeing), the fact of unemployment during that period is not determinative of the issue of past economic loss. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). However it is not incumbent upon the injured plaintiff to prove what employment he or she "is not incapacitated from performing". It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Rabay v Bristow [2005] NSWCA 199 (at [73]) per McColl JA (Handley and Bryson JJA agreeing); approved Magnou v Australian Wool Testing Authority Limited [2007] NSWCA 357.

84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

85 As both parties accept, the primary judge was not bound by the respondents’ concession as to the appellant’s loss of earning capacity. It was incumbent on his Honour to assess the evidence himself and arrive at his own conclusion. It would, with respect, have been desirable for him to have explained why he did not accept that submission. However as, in my view, his Honour did not err in reaching his conclusions about the appellant’s economic loss it is not necessary to take this point further.

86 The primary judge’s view that the appellant was fit to work from April 2001 until the aggravation of his back injury on 9 September 2003 while working for Adecco is arguably not supported by the medical certificates. While they demonstrate that the appellant was certified fit to resume his pre-injury duties on 2 April 2001, by June 2001 Dr Zecevic, certified that he was unfit to work from that date. On 20 July 2001 Dr Zecevic certified that the appellant was fit for suitable duties from 23 July 2001. He restricted those duties to ones not involving heavy lifting over 5kg. On a date which appears to be either 13 or 18 November 2001 Dr Zecevic certified that the appellant was not fit for his usual work and would not be able to work for at least eight hours a week or return to work within three months. A similar certificate was issued by Dr Irani on 27 April 2003 certifying the appellant unfit for the period 27 March 2003 to 3 May 2003, immediately prior to him resuming work as a concrete truck driver with Adecco.

87 These certificates must be compared with the nature of the work the appellant undertook prior to the accident and the activities in which he engaged afterwards notwithstanding medical opinions about the apparent limitations upon his physical capacity.

88 The appellant accepted that there was no physical exertion involved in the job of a concrete driver. The work was “pretty easy” and there was “nothing heavy about it”, although it did involve long hours. In cross-examination he accepted that he had been driving long distances most of the time since his accident. While he worked at the butcher shop he made deliveries. By the time he got his job with Adecco his condition had improved. He worked without any apparent limitation as a concrete driver at Adecco for almost three months before he aggravated his lower back undertaking labouring activities. He said he undertook that work on painkillers, but nevertheless he was able to work in what he agreed was a “pretty easy” occupation. He agreed that by September 2004 his back had returned to the position in terms of the levels of pain and disability that it was when he applied for the job with Adecco in June 2003. Nevertheless in his evidence-in-chief he said that he was unable to drive a heavy vehicle.

89 The appellant submitted that since his injury he had tried to go back to regular truck driving but had been unable to do so. Ms Norton drew attention to the fact that he had sought to undertake that activity in February 2004, that is, within a few months of aggravating his injury while at Adecco, but had been unable to do so. However, February 2004 was during the twelve months the primary judge allowed full economic loss to the appellant for the aggravation of the injury he had suffered in the present case and prior to him returning to his pre-aggravation state of health. There is no indication, as I read the evidence, that the appellant tried to go back to the “relatively easy” position of concrete truck driving after September 2004 when his back was in the condition it had been when he worked for Adecco for three months as a concrete truck driver. The primary judge was entitled to conclude (at [64](i)), in my view, that the appellant was fit for his pre-accident occupation and other forms of light to moderate work, but permanently unfit for work of a heavy manual nature.

90 It must be borne in mind that the primary judge’s view of what the appellant could do was, in part, demeanour-based. It is apparent that he concluded from that observation as well as the disparity between the evidence about what the appellant could do in fact and what he reported to medical practitioners, that the appellant was exaggerating his symptoms and incapacities. There was no incontrovertible evidence to the contrary. The primary judge was entitled to conclude that the impressions the medical practitioners formed were not based upon a true account of the appellant’s actual activities. In my view the primary judge was entitled to conclude that notwithstanding the long periods the appellant had been unemployed since the accident, his incapacity was not as great as that for which he contended.

91 I accept that the primary judge appears not to have taken into account in his assessment of past economic loss the periods the appellant was certified either unfit for employment, or fit only for limited duties in the periods in 2001, 2002 to which I have referred. This is explicable, in my view, by his conclusion that the appellant was exaggerating his incapacities, a view expressed by medical practitioners whose reservations as to the appellant’s incapacity his Honour was entitled to adopt.

92 Further it should be noted that the primary judge awarded the appellant damages for the period he was employed in the butcher’s shop in 2002. Even if his Honour had erred in relation to the period covered by the certificates to which he did not directly refer, the sums awarded for the 2002 period would broadly compensate the appellant. In such circumstances no substantial miscarriage of justice is apparent.

93 As to the future, this was, in my view, a clear case for the award of a buffer. The appellant had left school in 1991 aged 15. According to his evidence he had then worked as an apprentice cabinet maker for about a year, then did labouring work for a period which was not disclosed in the evidence, then worked for six months as an apprentice butcher with his father, then worked as a brick-layer’s labourer, again for a period which is not disclosed in the evidence. He then obtained labouring work in 1997 as a concreter.

94 The evidence did not disclose what the appellant had earned in the period up to the financial year commencing 1 July 1996. However the appellant’s tax returns for the period 1996-2001 were tendered. They disclosed that in the four years prior to obtaining work with Dependable, the appellant had engaged in virtually no remunerative employment but had drawn Newstart benefits. Further, as I have said, the appellant had obtained no employment after September 2004 despite his physical condition being that which had enabled him to apply for a position as a concrete truck driver and perform such duties in late 2003. In my view, the primary judge gave cogent reasons (at [82] – [86]) as to why this was a case where the difficulties in comparing the economic benefits the appellant derived from exercising his earning capacity before injury and that which he could derive from exercising it after injury were such that the assessment of his future economic loss should be compensated by a buffer rather than by attempting precise mathematical calculations.

95 The challenge to the awards for economic loss should be rejected.

Orders

96 In my view the primary judge’s assessment of damages should be varied insofar as he deducted 10 per cent from the appellant’s verdict for contributory negligence.

97 As to costs, the appellant has succeeded on only one of his four grounds of appeal. In my view it is appropriate that the respondents bear 25 per cent of the appellant’s costs, and the appellant pay 75 per cent of the respondents’ costs.

98 Ms Norton's written submissions also complained about the primary judge's calculation of superannuation. The nature of this complaint was not clear. Ms Norton was unclear about whether it related to the percentage his Honour used, or the figures to which he applied it. Mr Cavanagh understood it to be a derivative complaint, flowing from the appellant's economic loss complaint. There was no ground of appeal relating to superannuation, and I have not, accordingly considered it.

99 I propose the following orders:

1. Appeal allowed in part.

2. Set aside the primary judge’s assessment of damages of $229,150.08 and in lieu thereof substitute a verdict and judgment for the appellant in the sum of $260,976.48.

3. Respondents to pay 25 per cent of the appellant’s costs of the appeal and appellant to pay 75 per cent of the respondents’ costs of appeal, such orders to be set off one against the other.

4. Appellant to have a certificate under the Suitors’ Fund Act 1951 if so entitled in respect of the issue of contributory negligence.

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LAST UPDATED:
27 May 2008