Richards v Hill & Hill [2010] NSWSC 949 (24 September 2010)

NEW SOUTH WALES SUPREME COURT

CITATION:
Richards v Hill & Hill [2010] NSWSC 949

JURISDICTION:

FILE NUMBER(S):
2007/265307 (& 20648/09)

HEARING DATE(S):
Monday 16 to Thursday 19 August 2010 in WAGGA; and Thursday 26 August 2010 in SYDNEY.

JUDGMENT DATE:
24 September 2010

PARTIES:
Plaintiff - Mark Justin Richards
First Defendant - Anthony Robert Hill
Second Defendant - Diana Hill

JUDGMENT OF:
Studdert AJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Plaintiff - Mr KP Rewell SC with Mr R Harrington
Defendants - Mr Roberts SC with Mr A Black

SOLICITORS:
Plaintiff - Stacks, Taree, Solicitors
Defendants - Pogson Cronin Solicitors

CATCHWORDS:
Negligence – Whether breach of occupiers duty causing harm – If so whether contributory negligence – Action against person other than employer – Application of s 151Z of the Workers Compensation Act 1987 (NSW) – Assessment of damages

LEGISLATION CITED:
Civil Liability Act 2005 (NSW), s 15(2), (3), s 15C
Workers Compensation Act 1987 (NSW), s 151Z

CATEGORY:
Principal judgment

CASES CITED:
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Kallouf v Middis [2008] NSWCA 61
Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638
Miller v Galderisi [2009] NSWCA 353
Nominal Defendant v Lane [2004] NSWCA 405
Rabay v Bristow [2005] NSWCA 199
Sheridan v Borgmeyer [2006] NSWCA 201
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

TEXTS CITED:

DECISION:
1. Verdict and judgment for the plaintiff for $462,508.
2. Order that the defendants pay the plaintiff’s costs of the cause.

JUDGMENT:

1 HIS HONOUR: In this cause the plaintiff Mark Justin Richards is claiming damages from the defendants Tony Hill and Diana Hill in respect of injury allegedly sustained in an accident at the defendants’ property on 31 October 2005. Liability has been strenuously resisted and the case presents the following issues on liability:

2 At all times relevant to this action, the defendants were the owners and occupiers of a property which is located at Springvale near Cootamundra and which is known as “Hillview”. With his wife, the second defendant, the first defendant was conducting what he described as “mixed farming of cropping, sheep and cattle” at Hillview. As at 2005, there were 7,000 to 8,000 merino sheep on the property which occupies 2,500 hectares.

3 It is the plaintiff’s case that he was injured in the shearing shed on the property in the course of shearing activities.

4 The evidence disclosed that the shearing shed at Hillview was relatively new, having been constructed in 2003. This new shed had a raised board (or platform) on which the shearing took place. The platform accommodates six shearing stations, and is approximately 810 millimetres above the level of the concrete floor of the shed. At one end of the platform, there is a flight of stairs providing access to it from the floor of the shed.

5 The stairs leading down from the edge of the board are three in number. They are shown in photographs in evidence and I am satisfied are unchanged from 31 October 2005. The dimensions of the stairs in millimetres are as follows: the bottom step: the riser 214 millimetres and the going 263 millimetres; the second step: the riser 200 millimetres and the going 250 millimetres; the third step: the riser 200 millimetres and the going 240 millimetres; the top being the edge of the platform, the riser 200 millimetres. There is a handrail immediately adjacent to the edge of the stairs on the right hand side for a person descending the stairs. The stairs are constructed of timber. Along the edge of the board, and extending along the edge above the stairs is a yellow painted strip, emphasising the edge. (The measurements I have taken from the report of Mr Waddell (Exhibit B). In that report he describes the going as being “the horizontal parts of stair treads available for stepping on when descending. It is the horizontal distance between the nose of one step and the next”.)

6 During shearing operations there were located on the floor of this shed two tables to which fleece was moved after shearing. The first defendant is a registered wool classer and he classed the wool after it was placed on the tables. Whilst on the tables the fleece was skirted. After classing, first rate fleece was placed in a nearby press. Second rate fleece was placed in wool bins located adjacent to the tables.

7 The 31^st of October 2005 was a Monday. Shearing had commenced in the shed the previous week and there were five shearers engaged in the operation. These shearers were employed by a contractor trading as MF and DA Alchin. Michael Alchin was a member of this partnership with his wife, and he supervised and participated in the activities of the shearing team in the shed during shearing operations. The plaintiff was a member of this team and was employed as a wool presser.

8 Of course, of fundamental importance to the efficiency of the shearing operations was the need to keep the shearers fully occupied and to ensure that the shearers were not kept waiting for the arrival on the shearing board of sheep to be shorn. At the end of the board near the stairs mentioned earlier, there is a gate. When a shearer needed more sheep, the procedure was that he would call out “sheepo”, and somebody working in the area where the tables and the press were located would go up onto the board and through that gate to move more sheep into the catching pen or pens then requiring filling.

9 Sheep entering the shed for shearing were yarded inside the shed behind the shearing board. They were moved from there into catching pens behind each shearing station. From these pens the shearers drew sheep in the shearing process. The catching pens sloped downwards towards the board to facilitate the movement of the sheep to the shearing station. The timber grating in the catching pens was spaced and tapered so as to allow urine and sheep droppings to pass through. The shearing board was separated by the pens by a partition which had gates in it. A shearer wanting to start shearing the next sheep would access his sheep pen by means of his gate. Beside each gate there was an opening on the board leading to a shute. After completing the shearing of a sheep the shearer would push the shorn sheep down his shute into an area below the pens.

10 The timber grating in the catching pens by design runs at right angles to the board. The gates allowing access from the yard to the catching pens open at a 45 degree angle. This is designed to ensure the sheep do not baulk at the grating when they are being moved into the catching pens.

11 The layout of the shearing shed and the shearing process as I have endeavoured to describe it I am satisfied has been established by evidence introduced at the hearing.

12 It was Mr Alchin’s team which conducted shearing operations for the defendants after the new shed was introduced. Indeed Mr Alchin’s team had regularly conducted shearing operations at Hillview for many years, and his uncle and his father before that. By October 2005 the plaintiff had been a member of the Alchin team for approximately 2 years. As a wool presser the plaintiff’s duties required of him not only that he attend to the wool press but also to do general shed duties including skirting when he was not pressing. He was also called upon to do penning up, that being in the description of general shed duties.

13 This brings me to consider the plaintiff’s account as to what occurred on 31 October 2005.

14 Work in the shearing shed began at 7.30am and finished at 5.30pm. Actual shearing time was eight hours per day but there were rest periods, being two half-hour smoko breaks and a lunch break. It is the plaintiff’s case that he sustained injury during the first work period namely that from 7.30am to 9.30am. The plaintiff said that he was working on the morning in question with five shearers and two rouseabouts. He said Mr Alchin was also present. Mr Hill was working doing the classing. During the morning the plaintiff said that he had had occasion to go up onto the board and through to pen up behind the board on two earlier occasions before his accident. A shearer who wanted more sheep in his catching pen called out “sheepo”, and it was one of the plaintiff’s tasks to respond to such a call and to go up to put sheep in that shearer’s catching pen. The plaintiff said that the floor area behind the board was wet with urine and sheep dung. He said that after he had penned up he proceeded back through the gate separating the pen area from the board. The board is a little lower than the deck level on the pens’ side of the partition and the plaintiff said he “stepped down the little step onto the board”. He said he closed the gate, turned left, and then put his left foot forward, and then put his right foot forward “to steady myself for the descent down the stairs” (T37). He was asked these questions and gave these answers:

15 The plaintiff said he proceeded back to the wool press and tried to press some wool but his back was troubling him so he complained to Mr Alchin. He ceased working and Mr Alchin drove him back to Temora where he attended the medical centre and later the hospital to obtain an xray. The plaintiff did not resume work after that time.

16 The plaintiff felt nothing unusual under the sole of his right foot when he stepped out of the penning area (T61). The plaintiff was asked these questions and gave these answers at T42:

17 The plaintiff said that nobody helped him to get up after he had fallen (T120).

18 No eyewitness was called at the hearing who claimed to have seen the plaintiff fall. Mr Warren Walker was a shearer working on the board on 31 October 2005. Because he was left handed he was working at the shearing station nearest the stairs down which the plaintiff says that he fell. His evidence was that he was facing away from the steps during the shearing and I accept that this would be the case. He did not give any evidence of seeing the plaintiff fall.

19 The right handed shearers working on the board would have been in a better position to see the steps but of course they may have been individually focussing their attention on the sheep being shorn at the time the plaintiff says he fell. In any event none of the right handed shearers was called to give evidence.

20 The plaintiff was cross examined extensively. In the course of that cross examination he was asked why it was that he had to slow himself down when he was only in the course of completing his second step when he fell. I record cross examination as to this at T115-T116:

21 Two employees of the defendants were working at the shed on 31 October 2005. Mr Kevin Campbell was a farmhand who had been employed by the defendants for 22 years. He said that he was asked to take over the wool pressing after the morning smoko because Mr Alchin had taken the plaintiff into town. He said that earlier that morning he had arrived at the shed before the shearers and that with Mr Ralph Corby he penned up sheep and did some cleaning up. He said that he overheard a conversation between the plaintiff and Mr Corby when the plaintiff came into the shed that morning. He said he heard the plaintiff tell Mr Corby that he had a sore back and that Mr Corby made some comment about the plaintiff having “a shagger’s back”. He said that the plaintiff then laughed and walked off.

22 Evidence to the like effect was given by Mr Ralph Corby. Mr Corby said that he had penned up the sheep with Mr Campbell before the shearers arrived and that he recalled the plaintiff arriving at the shed. Mr Corby said that when the plaintiff walked in he said his back was playing up to which Mr Corby replied “what you’ve been shagging all night”. Mr Corby said the plaintiff did not respond. Later in the morning Mr Corby said that he responded to a “sheepo” call by a shearer. He left the wool table where he had been working and walked towards the stairs to the catching pens. He noticed the plaintiff went in front of him. He said that he followed the plaintiff into the yard and that he and the plaintiff proceeded to pen up sheep. Thereafter they proceeded back to the gate onto the board. He said that he stood at the gate whilst the plaintiff walked through it. He said that he then followed the plaintiff down the steps, although neither of them was on the steps at the same time. Mr Corby said that when he reached the bottom of the steps the plaintiff said that he had hurt his back. Then, after the plaintiff had left the shed, Mr Corby said he was called upon to help at the press and so far as he could recall this was something that not happened to him before.

23 Mr Alchin said that he recalled on the day in question the plaintiff was doing wool pressing and penning up and he said that the plaintiff was the only person penning up. That morning Mr Alchin said he heard a call of “sheepo”, that he looked around and that he saw the plaintiff going up the stairs to pen up. Later he said he saw him walking down the stairs and he said that he did so “just normally”. Then when he walked past the Mr Alchin the plaintiff said that he had twisted his back. Sometime later the plaintiff went back to Mr Alchin and complained he was in quite a bit of pain. It was after this that Mr Alchin drove the plaintiff into town and he has fixed the departure time from the shearing shed as being before 9.30am. According to Mr Alchin he drove the plaintiff to some relative’s place in town because the doctor’s surgery did not open until 10 o’clock.

24 In 2005 the plaintiff was in a defacto relationship with Melissa Manwaring. The relationship was continuing as at the hearing and by then had been in place for 15 years. Ms Manwaring’s evidence was that the weekend prior to 31 October 2005 was spent quietly by the plaintiff and herself and he made no complaint to Ms Manwaring about his back. On 31 October 2005 Ms Manwaring said that after taking her daughter to school and doing some shopping she visited her parents’ home in Temora. The plaintiff arrived by car outside her parents’ place. Ms Manwaring observed that it was Mr Alchin who was the driver, and the plaintiff entered the parents’ house and then complained: “I slipped at work ... I slipped off a step and hit my back on the step” (T172).

25 Ms Manwaring said that she then took the plaintiff to the medical centre and from there she took him to the hospital for xrays. The plaintiff was observed by Ms Manwaring to be “walking, like, hunched over: he wasn’t’ walking like a normal person” (T173). Ms Manwaring said the plaintiff was complaining about his lower back.

26 Dr Geri completed a medical certificate for WorkCover (Exhibit 6). This was completed on 31 October 2005 and identified the plaintiff as the worker and Mr Alchin as the employer. It detailed the injury that occurred: “whilst working he slip down stairs of (sic) the board”. The plaintiff’s signature appears at the foot of the document as nominating Dr Geri as his treating doctor. Apart from the plaintiff’s signature the rest of the document appears to be in the same handwriting.

27 There is a further medical record from Dr Geri in relation to the plaintiff for 31 October 2005 in Exhibit E. It is an entry timed at “12:41:19”. Under the doctor’s name it reads: “slipped down on the board whilst working. Very tender low back, no pins and needles. Given Panadeine F immediately. Reassess if not improving. Check WC medical certificate.”.

28 According to Mr Alchin the plaintiff presented a medical certificate to him either on 31 October 2005 or the next morning. Mrs Alchin went to an insurance agency and collected workers’ compensation forms. Mr Alchin took them around to the plaintiff’s place and explained to him how to complete the form which was introduced into evidence as Exhibit C. Mr Alchin gave the plaintiff some assistance in filling in the employee’s compensation claim form. On this form the accident as described by the plaintiff occurred thus: “slip down stairs”. In the form the plaintiff asserted injury to “lower back”.

29 Mr Alchin completed an employer’s report of injury form (Exhibit D) and described the injury thus: “slipped on stairs – back injury”.

30 I now turn to review the competing submissions as to the first of the issues on liability.

Review of competing submissions as to whether the plaintiff was injured in the matter in which he claims

31 I review the submissions of counsel in the order in which counsel addressed the Court.

32 Mr Roberts submitted that the plaintiff was not to be believed on his version of events. It was submitted that his account was implausible because it involved him not only falling a distance of .8 of a metre, but falling forward about the same distance in order to land clear of the steps. It is submitted that this is highly unlikely to have occurred when the plaintiff had taken but 2 steps from a standing position.

33 Mr Roberts next submitted that it is highly unlikely that the fall would have gone unnoticed by the 4 shearers who were facing his way, as well as by the rouseabouts, the defendant, Mr Alchin, Mr Campbell and Mr Corby.

34 Next Mr Roberts drew attention to the inconsistent histories which the plaintiff gave to 2 of the doctors who examined him and whose reports were tendered by consent. According to Dr Nicholls, orthopaedic surgeon, who saw the plaintiff on 9 May 2007 for the purposes of a report dated 14 May 2007, the plaintiff told that doctor that “he was descending some steps in the shearing shed when he slipped and landed heavily onto his buttocks and back with his right leg twisted underneath him. He required help to get up”. Dr Frank Breslin saw the plaintiff on 15 July 2008. The plaintiff gave a similar history that “he was on some steps in the shearing shed and he slipped and landed on his buttocks and back and twisted his right leg in the process. He needed help to get up”. The plaintiff denied in evidence giving those histories.

35 Next Mr Roberts submitted that the plaintiff’s credit is seriously in issue and a number of reasons were advanced for this:

The plaintiff gave evidence (at T60) that his average earnings with Mr Alchin were “close to $1,000 per week”. He also said that on occasions he was paid in cash (T61). In cross examination, however, he agreed that in the year ended 30 June 2005 he only received $19,400 from Mr Alchin and in the previous year $17,300. These figures were borne out by the plaintiff’s taxation returns, Exhibit 1 and Exhibit 8. The plaintiff said he was paid in cash by some farmers (T62) and he said he did weekend work (T62). He was cross examined on his tax returns which disclosed some modest earnings from other farmers, wool pressing, and he agreed at T66 that all his income was earned from wool pressing in the year ended 30 June 2005. He said that he did not disclose for taxation purposes all the cash receipts and the cross examination directed to the taxation return for 30 June 2005 continued (at T67):

37 I address this submission at once. The evidence that the plaintiff gave as to his income prior to October 2005 was both unsatisfactory and untruthful and I can only conclude that it was given in an endeavour to inflate the damages claim which the plaintiff was presenting in this Court.

A report (Exhibit 2) was introduced into evidence from Dr Kurtser who was the plaintiff’s treating doctor for a period prior to April 2009. This was in effect a letter addressed to the plaintiff stating the doctor’s reasons for deciding he could no longer treat the plaintiff. In this report it was recorded, that on 22 December 2008 the plaintiff was admitted to Temora Hospital with a suspected reaction to some medication that had been prescribed for muscular pain. Urinary drug screening was undertaken and this revealed the presence of Amphetamines, Cocaine and Cannabis in the plaintiff’s system. The plaintiff in evidence said he was unaware of the drug screen test result but when asked whether he had been using Cannabis, he denied it (T93). When asked if he was using Cocaine he said “not that I know of” and suggested somebody might have spiked his drink. Further he said that he did not use speed.

39 Mr Roberts submitted that I should find that evidence denying drug use to be unsatisfactory. That is a submission I accept.

The plaintiff gave evidence (T70) that he used a walking stick to get into and out of bed but that he did not use it for walking. Then he said at (T71) that he did use it for walking, but only inside the house. He agreed that he did not use the walking stick when he went to visit the doctors. He did not however agree that he did not need to use a stick to walk (T72). Again I accept the submission that this evidence was unsatisfactory.

The plaintiff gave evidence at T75 that he did not recall needing to have his wife shave him in the period since the accident (T75). However he was then further questioned and gave the following responses at (T76).

42 The occupational therapist Ms Tchan, whose lengthy report forms part of Exhibit E, recorded in September 2009 that the plaintiff’s wife “shaved his head and beard”.

43 Again I accept Mr Robert’s submission about the evidence the plaintiff gave as to the need for assistance in shaving, and the extent of this need. I considered his evidence as to this issue to be both evasive and unconvincing.

The plaintiff gave evidence as to the static condition of the shearing shed which Mr Roberts submitted I would find to be incorrect and untruthful. Evidence to which this submission was directed concerned:

The plaintiff denied that there was a handrail beside the board. I refer to his evidence at T119:

Mr Hill gave evidence as to the existence of the handrail from the time that the new shearing shed came into operation. I consider Mr Hill to have been both a truthful and a reliable witness. Moreover it emerged in his cross examination that he had taken photos inside the shed when it was first used in October 2003. Mr Hill produced those photos to the Court and they became Exhibit 9. One of those photos, Exhibit 9A, clearly shows the handrail. The photos disclose the date on which they were taken in October 2003. This photographic evidence afforded conclusive support for the evidence given by Mr Hill and Mr Alchin as to the existence of the handrail. The plaintiff’s evidence reviewed above is plainly incorrect. Moreover the plaintiff was familiar with the interior of this shed by reason of the number of times he had worked in it, and it seems to me that he could not have been mistaken in giving the evidence which he gave. I conclude that the evidence in point was untruthful.

The plaintiff gave evidence that the board in the shearing shed was varnished. His evidence was that it was in a different condition at the time of trial and on the view that occurred during the trial than what it was in at the time he was injured. He said that the floor board on the shearing board was varnished just as the facia board was. I note in considering this submission that the plaintiff also told Mr Waddell that the floor service was varnished at the time of his fall (p 6 of Mr Waddell’s report).

47 The evidence that only the facia of the board was varnished is convincing. I accept the evidence that Mr Hill gave as to this. The only lacquer was on the facia board and that was put there to stop the rouseabouts’ clothes grabbing when they went to the edge of the board. I accept the evidence that Mr Hill gave that no oil had been put on the boards and that they remain as laid.

48 The photographs in Exhibit 9 taken at the time the shed was first used depict an unvarnished working board surface. Mr Alchin said that there was no lacquer on the board; so to did Mr Campbell and Mr Corby. Their evidence as to this issue accords with that of Mr Hill and I accept it.

49 Once again it seems to me that this is not something about which the plaintiff could be mistaken and I conclude that his evidence about the board was untruthful.

The plaintiff gave evidence as to the shiny nature of the surface of the board. He said it was very shiny and very slippery (T23). He said the condition was different at the time of trial, and that it was not as shiny as it was at the time of the accident. Once again I am satisfied having regard to the evidence given by Mr Hill that the appearance at trial is as it was from October 2003. I accept the evidence of Mr Campbell to the like effect. I do not accept the contrary evidence from the plaintiff, which evidence is at best to be considered unreliable.

The plaintiff described the shearers’ board as quite slippery (T23). He also said that the shearers’ used a coarse paper to roughen the surface of their shearing stations (T23). Mr Walker gave evidence that he roughed the board up with emery paper and that the board was shiny but I was not impressed by Mr Walker as a witness. Mr Hill received no complaint that the board or the steps were slippery and he had not seen any shearers rough up the board. Mr Alchin gave evidence to the like effect. Mr Campbell had never heard a shearer complain the board was slippery. Mr Corby said he never noticed that the board was slippery. He never saw a shearer roughing up the surface and he never heard a shearer complain that the board was slippery. I prefer the evidence contrary to the plaintiff as to this and again I accept the submission that the plaintiff’s evidence on this matter was at best incorrect.

52 Mr Roberts submitted that I would not find the plaintiff to have been a truthful witness and that the plaintiff has not proved he slipped and fell in the manner claimed.

53 Mr Rewell presented written submissions and addressed these in his oral submissions. Mr Rewell submitted that there was nothing inherently improbable in the plaintiff’s description of his slip and fall and he referred to the evidence of Mr Waddell opining that the surface of the shearing board above the top step did present a risk of slipping particularly if the plaintiff had urine or excrement on the sole of his right shoe. This, Mr Rewell submitted, was likely bearing in mind his exposure to the area of the catching pens and the area outside those pens. Mr Rewell drew attention to Mr Waddell’s explanation from an ergonomic point of view that the plaintiff slowed down his forward motion when he put his right foot down. This would have increased the risk of slipping and there was nothing improbable about the trajectory through which the plaintiff claimed his body travelled when he slipped. Mr Rewell submitted that there was no cross examination of the expert to suggest that the plaintiff’s version of events was inherently improbable. I do note however that the history taken by Mr Waddell was not that the plaintiff cleared all steps but that his low back struck the bottom step.

54 Mr Rewell submitted that the account of events given by the defendant’s witnesses was inherently improbable. If Mr Campbell and Mr Corby are correct and the plaintiff hurt his back before starting work, it was improbable Mr Rewell submitted that the plaintiff could have worked without apparent difficulty for some 90 minutes. There is no suggestion that anybody saw the plaintiff having any problem before he first complained, before ceasing work. Moreover Mr Rewell submitted, if the plaintiff arrived at work with disc damage later disclosed radiologically, it is unlikely he would have been capable of operating the wool press or penning sheep or doing the other labouring work he was required to do on 31 October 2005.

55 As to Mr Corby’s account of the joint activity in the pen area just before the plaintiff fell, it was submitted that this was not to be believed. It was improbable that the plaintiff would make a complaint of having hurt his back in the absence of any explanation for having done so.

56 Further Mr Rewell submitted that it was improbable that the plaintiff would fabricate a version of having slipped from the shearing board and having fallen to the floor if this did not occur, because he did not need to fabricate such a version in order to obtain compensation.

57 Mr Rewell submitted that it is explicable that nobody saw the plaintiff fall because everyone in the shed was busy at his task.

58 Mr Rewell submitted that I ought not to accept the evidence of Mr Campbell and Mr Corby about the exchange they claim occurred before the plaintiff commenced work on 31 October 2005. It was submitted that I should regard the evidence of Mr Campbell and Mr Corby as reconstruction rather than actual memory, probably fostered by discussion between themselves and Mr Hill.

59 Mr Rewell submitted that the clinical notes of Dr Geri for 31 October 2005 are critical, particularly those recording the time of the consultation on that day.

60 There then followed on the same date the WorkCover Medical Certificate (Exhibit 6) to which I have made an earlier reference.

61 Further, it was submitted that it is improbable that Mr Alchin would have signed the workers’ compensation claim form and the employers’ report of injury form in the terms of the documents Exhibits C and D if he knew the documents to be untrue. Mr Alchin’s evidence was to the effect that he accepted the plaintiff’s account of events, but it was submitted that it was inherently improbable he would have done so if he had believed the plaintiff did not slip or fall. I was reminded that Ms Manwaring gave evidence that the plaintiff did not engage in any strenuous activity on the weekend before 31 October 2005 and was showing no sign of back pain or discomfort up to the time that he left for work that day. Mr Rewell submitted that the issues as to the condition of the shearing board and whether shearers roughed the board up were peripheral issues. In a sense that is so, but they give rise as to consideration as to the credit of the plaintiff as addressed by Mr Roberts. So also do incorrect matters of history given by the plaintiff to Mr Waddell. The plaintiff told Mr Waddell that:

62 Notwithstanding Mr Rewell’s submissions to the contrary I do not conclude that the evidence given by Mr Campbell and Mr Corby ought not to be accepted. I think each of these witnesses was both honest and truthful and I do accept their evidence that when the plaintiff arrived at the shearing shed on 31 October 2005 he made a complaint about his back. The making of this complaint does not however exclude the possibility of a subsequent fall having occurred.

63 It seems to me after much reflection on this issue that the evidence introduced by the defendants does not eliminate the possibility of the plaintiff having fallen as claimed. It must have been Mr Alchin’s conclusion that nothing that he had seen excluded such a possibility. Otherwise he would not have completed Exhibit D, the Employers’ Report of Injury Form, in the way in which he did. I do not reject Mr Corby’s evidence that he went to the pen area with the plaintiff that morning, but a fall could have occurred on a later trip to the pen area. The plaintiff claims the fall happened after his third visit that morning.

64 Whilst I regard the plaintiff as a most unsatisfactory witness and as having been untruthful in respects I have identified, the medical record from Dr Geri fixes the time that the doctor saw the plaintiff on the day in question as having been shortly after 12.40pm when the history then recorded was one presumably given by the plaintiff at the time of that visit. No other source of the history was suggested. The history as recorded was that the plaintiff “had slipped down on the board whilst working”.

65 I consider there is substance in Mr Rewell’s submission earlier reviewed as to the significance of this history particularly having regard to the time at which it was taken. For the purposes of advancing a claim for workers’ compensation benefits it mattered not from the plaintiff’s point of view how he hurt his back, as long as it was a work related event. It is unlikely in the extreme that when he first visited the doctor’s surgery, so soon after leaving work, that the plaintiff would have been thinking ahead to a possible common law claim for damages in which it would be to his advantage to fabricate a fall.

66 This history recorded by Dr Geri in Exhibit E is not in precisely the same terms as the history in Exhibit 6, recorded by Dr Geri that same day. However I do not consider the difference is significant. Exhibit 6 recorded that the plaintiff “slipped down stairs of the board”. Again for this document I conclude that the plaintiff must have been the source of the history taken.

67 Xrays of the plaintiff’s back were taken on 31 October 2005: a CT scan was performed on 4 November 2005; and an MRI procedure was carried out on 5 December 2005. The results of these procedures are conveniently summarised in the report by the orthopaedic specialist, Dr Nicholls, dated 14 May 2007. Dr Nicholls summarised the findings of the various procedures thus:

“31.10.2005	Xrays of the lumbar spine show narrowing of the lumbosacral disc with slight similar changes at the L3-4 and L4-5 levels. There is a slight lumbar spine tilt towards the right.
04.11.2005	CT examination of the lumbar spine shows moderate posterior disc bulge at the lower three disc levels with no obvious nerve root involvement.
05.12.2005	MRI of the lumbar spine shows a degree of degenerative change and annular disc bulging at the lower three lumbar spine levels, most marked at the lumbo-sacral level with no obvious nerve root involvement.”

68 Dr Nicholls considered the plaintiff had pre-existing lumbar spine disease before 31 October 2005 but accepting the history given to him that the plaintiff’s condition was asymptomatic prior to that date, Dr Nicholls attributed the plaintiff’s symptoms following 31 October 2005 to the fall described.

69 The plaintiff’s comment to Mr Corby before he started work on 31 October 2005 indicates that the plaintiff’s back was not altogether pain free before he engaged in his work on that day but I think it probable that something happened at work in the course of the morning which rendered him incapable of continuing. A fall such as the plaintiff described seems to be a likely explanation for the onset of acute low back pain and disability, particularly having regard to the pre-existing pathology in the plaintiff’s lumbar spine.

70 Ultimately, I find myself persuaded on the balance of probabilities that the plaintiff did fall when he was endeavouring to descend the stairs from the shearing board.

71 As the occupier of the shearing shed the defendants owed a duty of care to the plaintiff although he was not their direct employee.

72 Mr Rewell drew attention to the decision of the Court of Appeal in Sheridan v Borgmeyer [2006] NSWCA 201. It was a case in which a shearer was injured when he fell from a shearing board, injuring his back. It was found that the occupier of the shearing shed was negligent in failing to provide a guard rail around the shearing board. The occupier’s appeal failed and in the course of his judgment Tobias JA said at para [56]:

73 The issue as to whether there ought to have been a guard rail along the edge of the board did not arise in the present case. It was the plaintiff’s case that he fell when seeking to use the stairs, and the presence of a guardrail would not have prevented the plaintiff’s fall. It is not suggested, nor could it be suggested that there ought to have been a guardrail across the stairs such as would have impeded their use.

74 The defendants as the occupiers of the shearing shed were under a duty to provide to those working in the shed, including the plaintiff, a place of work which was reasonably safe. The defendants were under a duty to provide means of access to the board which were reasonably safe.

75 I do not understand the nature and extent of the duty owed by the defendants in this case to be in issue. The issue is whether there has been a breach of duty.

76 Mr Rewell submitted that having regard to the nature of the operations being conducted in this shearing shed the defendants ought reasonably to have appreciated that there was a foreseeable risk of a worker slipping at the edge of the shearing board and falling down the steps. Moreover he submitted that this risk ought to have been addressed by the application of a non slip strip to the edge of the shearing board, the same width and in the same location as the yellow line where it crossed the top of the steps.

77 Mr Rewell relied upon the evidence of Mr Waddell, the ergonomist who attended at Hillview on 19 November 2007 for the purposes of preparing his report dated 21 February 2008.

79 In his evidence Mr Waddell said that whilst he had not costed it, he thought it would be reasonably inexpensive to place non slip material along the yellow line painted on the board at the top of the stairs. The witness was asked these questions and gave these answers at T152:

80 In cross examination Mr Waddell acknowledged that non slip strips were more prone to having foreign matter adhere to them, making it more difficult to clean them. Mr Waddell was asked about friction tests he carried out on the relevant bare wood area. The average of the readings he took for bare wood was .422, and for the painted strip .472.

81 Mr Waddell acknowledged that the testing he did was not precisely that specified in the Australian Standards, but nevertheless provided a reasonable estimate of the co-efficient of friction. His results had a margin of error according to Mr Waddell of “5 to 10% more like 5%” (T153).

82 The testing Mr Waddell carried out provided a lowest reading for the bare wood surface of 0.38, and the average of readings for bare wood was .422 and for the painted strip .472. The witness agreed that under the 2004 Australian/New Zealand Standard relating to “slip resistance measures of existing pedestrian surfaces” the shearing board area complied with what that standard referred to as being “slip resistive”.

83 At the conclusion of his cross examination Mr Waddell was asked these question and gave these answers at T163-T164:

84 Mr Waddell opined that the co-efficients of frictions as per the standards on which he was cross examined were designed for normal pedestrian conditions, and he considered the conditions in the shearing shed were somewhat abnormal, by reason of the risk factors identified in the evidence (as set out (at para 79) above).

85 Mr Waddell’s evidence was that the application of a non slip strip of the same width as the yellow line along the edge of the board above the stairs would have afforded a much greater co-efficient of friction than there existed – “beyond .9 or 1 which means very very low possibility of slipping” (T149).

86 Mr Hill’s evidence was that he engaged a shed builder, Mr Peter Smith, to construct the new shed. Mr Hill, Mr Corby and Mr Campbell afforded manual assistance in the construction. Mr Hill was guided in the construction by a publication entitled “WorkCover Publications - Health and Safety at Work Shearing - Guide 2002 by WorkCover NSW (see Exhibit 15). When the shed was completed he arranged for the WorkCover representative to inspect the building. Mr Hill’s evidence was (at T209) “that no shearer ever complained that the board was slippery or that the stairs were slippery”. Mr Hill said no complaint was made by any non shearer to that effect, nor did anybody complain that the stairs were too shallow or too steep.

87 In cross examination Mr Hill was questioned about the concept of a non slip strip (T226-T227):

88 In addressing the issue of breach of duty Mr Roberts referred to the WorkCover Health and Safety at Work Shearing – Guide (Exhibit 15). At page 21 of this publication there is reference to the need to install properly designed stairs and to install appropriate hand rails. At page 28 the publication advises on the need to clearly identify the edge of the board visually with paint, or tape or the installation of a guard rail. Mr Roberts submitted those measures referred to were addressed in the construction of this shed by the painting of the edge of the board. Further, Mr Roberts submitted that what was constructed complied with relevant standards:

Section 4 of this standard deals with stairways and Mr Roberts submitted that this section was complied with. I accept this submission, focusing on 4.1 to 4.3.

89 Whether or not the defendants complied with the various standards which Mr Roberts has addressed is a relevant consideration but such compliance does not necessarily satisfy the duty of care owed. As in Sheriden v Borgmeyer (supra) it is here relevant to address the issue posed by Mason J in the much cited passage in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

90 The reasonable person is to be put in the position of the defendants as the occupiers of the shearing shed with a full appreciation as to the nature of the shearing activities and the activities associated with them. The evidence establishes that the shearing operation was not only a busy time for the shearers themselves but for other persons working in the shearing shed. Associated activity included regular use of the stairs in order to gain access to the area behind the board. Response to a call of “Sheepo” required a worker to enter the area behind the board to move sheep into the catching pens. The evidence was that the regular procedure was that sheep were emptied out before entering the shearing shed building. Nevertheless, as Mr Hill acknowledged, some sheep failed to empty out completely and he agreed that it was inevitable that when a large number of sheep were in the shed for the purpose of shearing there would be excrement and urine which dropped onto the timbers (T239). It seems to me that there was a foreseeable risk that those entering the pen area would leave that area with contaminant on their footwear, and would carry that contaminant onto the board and the stairs.

91 I conclude that it was reasonably foreseeable having regard to the nature of the activities being conducted in the course of the shearing operation that a worker might slip at or near the edge of the shearing board, after moving sheep into the catching pens behind it. I am persuaded by the evidence of Mr Waddell and by Mr Rewell’s submissions that the exercise of reasonable care in the circumstances called for the provision of a non slip strip on the edge of the board immediately above the stairs which would have been a relatively inexpensive measure and an effective one to eliminate the risk of slipping. In so concluding I accept the uncontradicted evidence Mr Waddell gave as to the effect that the placement of the non slip strip there would have had.

92 Mr Hill agreed that the placement of such a strip would have been safer than having merely a yellow line. Whilst Mr Hill thought that the cleaning of the non-slip strip would be a disadvantage he did acknowledge that he did not know if it would be more difficult to clean. It does not seem to me that any extra cleaning effort associated with the placement of a non slip strip would have imposed an unreasonable demand upon the defendants, particularly in view of the very limited area in which the placement of the non slip strip was rendered desirable. For the reasons stated I find that negligence has been proved.

94 There was a hand rail in place immediately beside the stairs as clearly depicted in the photograph Exhibit A3. It is submitted that the plaintiff’s failure to use the hand rail amounted to contributory negligence.

95 Mr Rewell submitted that the defence ought to fail because the hand rail was not available to the plaintiff, in the sense of being within reach, at the time and place that the plaintiff’s foot went from under him. I do not accept that submission.

96 The plaintiff’s explanation for not using the hand rail was that it did not exist. In evidence to which I referred earlier in this judgment the plaintiff said that if a hand rail had been there he “would have grabbed it”. The hand rail was immediately adjacent to the right hand edge of the steps and plainly within reach. The plaintiff could have, and I find should have, used it. His failure to do so I am satisfied contributed to the plaintiff’s fall and the harm occasioned by it.

97 In the circumstances of this case I consider it to be just and equitable that the plaintiff’s damages should be reduced by reason of his contributory negligence by 15%.

Apportionment of responsibility between plaintiff’s employer and the defendants

98 The plaintiff has received benefits from his employer pursuant to the Workers Compensation Act 1987 (NSW). By reason of the findings I have made the plaintiff is entitled to damages against the defendants. In these circumstances, the operation of s 151Z of the Workers Compensation Act 1987 (NSW) is enlivened, and indeed the defendants pleaded reliance upon the section in their amended defence.

99 By reason of the employer-employee relationship the plaintiff’s employer owed to the plaintiff a non delegable duty of care. The employer was relevantly required to exercise reasonable care in relation to the system of work which it provided and in relation to the place of work at which the employer required the plaintiff to work. I am satisfied that the evidence establishes that the employer was in breach of the duty of care owed to the plaintiff in the circumstances of his fall. It is common ground that I should so find, and the issue presented is how responsibility should be apportioned pursuant to s 151Z of the Workers Compensation Act

100 Mr Rewell submitted that I should adopt the same apportionment as was determined in Sheriden v Borgmeyer, and that I should find that the employer was 25% to blame and that the occupier was 75% to blame. It was submitted that the employer was not in a position to install a non slip strip and was not in a position to safeguard the plaintiff against the risk that materialised. Mr Roberts on the other hand submitted that in this case I should determine the extent of the employer’s responsibility to be greater than 50%. Mr Roberts submitted a finding of fault against the defendants based upon the failure to provide a non slip strip at the top of the stairs did not warrant the sort of apportionment that was made in Sheriden at first instance and which was not the subject of scrutiny on appeal. Mr Roberts submitted that a non slip strip was not a requirement spelt out in the relevant standards, by reference to which indeed the board from which the plaintiff slipped was slip resistant. Looking at the position of the employer with the non delegable duty, the employer should have been alert to any potential slip hazard and was in a position to control the speed at which the plaintiff was required to work and the number of persons provided to assist him. Hence, Mr Roberts submitted that the employer should be regarded as being at least two thirds responsible for the plainitff’s injury.

101 I do not consider that the decision in Sheriden v Borgmeyer prevents me from determining what I consider to be an appropriate apportionment in the circumstances of this case. What happened in Sheriden was that there was an apportionment by the District Court Judge before whom the proceedings were brought and there was no appeal against the apportionment made by the Trial Judge. The circumstances in Sheriden were distinguishable from those in this case. It is to be noted that in Sheriden one of the occupiers acknowledged in his evidence the possibility of somebody falling from the platform and being injured was a risk and earlier he had put a guardrail around the platform. He decided not to replace the guardrail when the shearing shed was rebuilt. Foreseeablity of harm occurring by reason of the absence of the guardrail was specifically acknowledged. The speed at which work was being carried out by the employer in the subject shearing operation was one of the factors that influenced Mr Waddell to conclude that a non slip strip was warranted. The pace of work and the disposition of manpower were matters within the employer’s control. Having reflected on the competing submissions and the facts in this case I consider it appropriate to apportion responsibility as follows: 1/3^rd to the employer and 2/3^rds to the defendants.

103 The plaintiff was born on 19 June 1978 so that he was 27 years of age when the accident happened and he is presently 32 years old.

104 By way of background, the plaintiff left school after year 9 and did some work felling trees for the Forestry Commission. He did this work for approximately 12 months and then he worked for his uncle doing care taking duties associated with a caravan park. Then the plaintiff worked on his father’s farm doing labouring work. His next position was with MF and DA Alchin. He joined Mr Alchin’s shearing team in 2002. He started work as a wool presser and continued to do that work until the date of his accident. He has not worked since.

105 The plaintiff was in a long standing defacto relationship. There were two children of this union as at the date of the plaintiff’s accident. Since that date Ms Manwaring has had a further child the plaintiff regards as his own.

106 All the medical evidence in this case has come before the Court in report form. At the time of the accident Dr Geri was the plaintiff’s general practitioner. Dr Geri referred the plaintiff to an orthopaedic surgeon, Dr Hillier. Dr Hillier first reported to Dr Geri on 12 December 2005 when he recorded that the plaintiff stated conservative treatment up to that time had failed. Dr Hillier commented on the MRI performed the week prior to the doctor’s report. He said that the procedure raised the possibility that (the plaintiff) “has developed quite significant multiple disc bruising and possible discogenic pain”.

107 The only treatment which the plaintiff has had to date has been of a conservative nature but Dr Hillier did conclude that arthroplasties at L4-L5 and L5-S1 were warranted. The proposal to undertake these arthroplasties was apparently not greeted with enthusiasm by the employer’s workers compensation insurer nor indeed by the plaintiff and the procedures were never undertaken.

108 Dr John Grant, a neurosurgeon, saw the plaintiff for the workers’ compensation insurer on 1 November 2006. Dr Grant considered that the plaintiff had “a wide spread conversional hysterical response on the history given and following physical examination”: Dr Grant noted loss of motor power on clinical examination but observed the plaintiff was able to walk without evidence of weakness in his lower limbs. At that time Dr Grant considered the plaintiff to be unfit for work and thought his prognosis for future work activity was doubtful. Dr Grant did not support the artificial disc replacement procedure contemplated by Dr Hillier.

109 As mentioned earlier the plaintiff saw Dr Nicholls, orthopaedic surgeon, on 9 May 2007. At that time the plaintiff was complaining of constant pain in the lower lumbar spine which was significantly aggravated by physical activity or movement. There was also a complaint of referred pain to the right lower limb. The plaintiff complained to Dr Nicholls on 9 May 2007 that he was unable to do any significant domestic chores or to take part in caring for the 3 children. The plaintiff told Dr Nicholls of no previous back symptoms.

112 It was Dr Nicholls’ assessment at that first consultation that the plaintiff was totally unfit for work and he thought his prognosis was very much in doubt. Dr Nicholls saw the plaintiff again in March 2008 and considered there had been no significant change since the earlier consultation. Addressing the plaintiff’s long term prognosis on 26 March 2008 Dr Nicholls wrote:

113 Dr Burgess, an orthopaedic surgeon practising in Bathurst assessed the plaintiff on 23 September 2009. I note that the plaintiff told Dr Burgess that his wife largely looked after him including shaving him and helping him with self care. He complained that he could not help with the heavy housework and that he could not skylark with his children, that he was no good with yard maintenance and outdoor jobs. Dr Burgess expressed his opinion after this consultation in the following terms:

114 Dr Frank Breslin assessed the plaintiff in July 2008 in his capacity as a specialist urologist. The plaintiff was making complaints of urinary problems. Dr Breslin found no neurological damage either on clinical or radiological examination. Dr Breslin considered it unlikely that the plaintiff had a neurogenic bladder but that this needed further assessment.

115 Although the plaintiff has persisted in complaints of a urological nature Mr Rewell very properly acknowledged there is no evidence which links complaints of this type with the fall at work.

116 The only other medical evidence from a specialist source is a report from Dr Brian Burke dated 17 September 2008. Dr Burke is a psychiatrist and he saw the plaintiff on 15 July 2008 not to treat him but to provide a medico legal report. Dr Burke expressed the following opinion:

117 Whilst Dr Burke obtained a history that the plaintiff had not been seen by a psychiatrist for treatment the plaintiff’s evidence was that he did see a psychiatrist six times. The plaintiff was unable to name this doctor, and no such doctor has been identified in the evidence.

118 Dr Kurtser undertook responsibility for the plaintiff’s care as a general practitioner in February 2008. This emerges from the doctor’s records produced under subpoena and which became Exhibit 13. On 13 January 2009 Dr Kurtser referred the plaintiff to Dr Sheehy for a neurological assessment and in the referral letter Dr Kurtser informed Dr Sheehy inter alia:

119 No report from Dr Sheehy was introduced into evidence. Dr Kurtser’s remarks in the concluding paragraph of the letter of referral to Dr Sheehy are indeed noteworthy, since Dr Kurtser saw the plaintiff many times during the period that the plaintiff was under his care.

120 Dr Kurtser ceased to treat the plaintiff in 2009 and I referred earlier at para [38] to his report of 22 April 2009 notifying the plaintiff of that decision and of his reasons for it. Dr Kurtser was concerned that the plaintiff had abused the use of Oxycontin, that the urine sample taken in December 2008 had revealed the presence of illicit drugs and that the plaintiff had given a false reason for obtaining prescriptions for Oxycontin.

121 The plaintiff has been seen by Dr Allnutt, a psychiatrist. The consultation with that specialist was arranged by the defendants. No report has been introduced into evidence from Dr Allnutt.

122 The task of assessing the medical evidence in this case is a particularly difficult one. It is made more difficult by reason of the dependence of the doctors who have examined the plaintiff upon histories that have been given by the plaintiff and I found the plaintiff to be an unsatisfactory witness for reasons I identified earlier in this judgment and also in the evidence he gave as to the nature and extent of his disability. The history of complaints expressed by the plaintiff and the assessment of their reliability must be approached with extreme caution.

124 The plaintiff gave evidence that Dr Geri treated him immediately after his fall by a regime of bed rest and pain killers. Dr Geri then referred the plaintiff to Dr Hillier and the plaintiff said he saw Dr Hillier 2 or 3 times. Surgery was discussed but did not take place. According to the plaintiff he spent most of the first 6 months after his fall in bed. The plaintiff said at that time he was experiencing pain in his lower back and there was pain in the groin shooting down the inside of the right leg. He was so immobile, the plaintiff said, that he even had a bed pan so that he could remain in bed. The plaintiff said that after 6 months he was scared about his future and that of his wife and the children.

125 The plaintiff was living at the time of his accident in a rented house. He said he shared household chores with his wife, although his wife did more of the household chores because she was working only part time and the plaintiff had a full time position.

126 The plaintiff and his family have moved twice since his accident, on each occasion to rented accommodation. The more recent move was from Temora to Young some 14 months prior to the hearing in Wagga.

127 According to the plaintiff he was unable to make any meaningful contribution to the household chores for over 2 years. Since living in Young the plaintiff has done more in the house and helps with the children and does minor household chores. He says that he is unable to stand over the sink to do the washing up because that hurts his back.

128 The plaintiff said that his wife stopped work within 2 or 3 months of the accident.

129 According to the plaintiff there has been no improvement in his condition since the fall. He still has pain in his lower back. The pain in the groin and the right leg is not as persistent as it was.

130 Currently the plaintiff said he is on pain killers. He has a Fentonil Patch applied to his thigh and the patch is replaced every 3 days. He also uses a muscle relaxant and anti depressants.

131 The plaintiff said he is cranky with the children and his relationship with his wife has been placed under stress. His sleep is interrupted by pain.

132 The plaintiff has a car and he does drive but he said it scares him to do so. He said his legs go numb. I referred earlier to the complaints made to Dr Nicholls about sensory loss, and to that doctor’s comments about them. I do not accept that the plaintiff has been incapable of driving regularly since this accident.

133 In cross examination the plaintiff said that he could not even shower or dress himself without assistance for the first 6 months. He told Dr Nicholls in March 2008 that he spent most of the day in bed. I referred earlier to the unsatisfactory evidence he gave about having his wife shave him. The plaintiff said that even in September 2009 when Ms Tchan visited him, he needed assistance in dressing, putting on his jeans, shoes and socks. He said that even in September last year, his wife shaved him “to help him out”. He did not recall telling Ms Tchan that he only showered every 2 or 3 days because it was too much of an effort to have a shower.

134 The plaintiff referred to having seen a psychiatrist 6 times in Temora but he could not remember the psychiatrist’s name.

135 The plaintiff complained about urinary problems. The evidence does not link them to the back injury.

136 The plaintiff was given medical advice by a Dr Todhunter to do a pain management program. The plaintiff said he did not start the pain management program because he did not find it of use at the time it was offered.

137 I considered the evidence which the plaintiff gave referrable to his pain, his symptoms and the level of his disabilities to be unconvincing.

138 Ms Manwaring said that prior to the accident the plaintiff was a very energetic person but following the accident spent a lot of time in bed and he gave no assistance in the house. According to Ms Manwaring her husband spent all day everyday in bed and that had only changed in the last few months before the Court hearing. He complained to her that he could not feel his legs and that he was constantly in pain. The relationship with Ms Manwaring has been disturbed. Ms Manwaring has said that she has contemplated leaving but she felt she could not leave the children.

139 According to Ms Manwaring she still assists the plaintiff with his dressing and bathing.

140 Ms Manwaring said that prior to the plaintiff’s accident she was working as a nursing assistant at a retirement village doing on average 5 hours work per week (T181) but she abandoned this work after the plaintiff told her he would never work again. The plaintiff said this to her after the CT scan was performed on 4 November 2005. I accept that the plaintiff made this assertion, but I am of course unable to determine if anyone had said this to the plaintiff. If so it would have been an irresponsible remark.

141 The evidence from the orthopaedic specialists, and in particular from Dr Nicholls discloses that not all the plaintiff’s complaints can be accounted for on an organic basis. I accept the opinion of Dr Burke that there is a chronic adjustment disorder which so far has remained untreated. However I regard the plaintiff as an unreliable witness who has exaggerated the extent of his disabilities. Notwithstanding the evidence given by Ms Manwaring, I am unable to accept that the plaintiff has been disabled to the extent claimed since his accident. I do not find her evidence to be a reliable indicator of the plaintiff’s disabilities, past or present.

142 Nevertheless I do accept as Dr Nicholls opined that the plaintiff sustained a serious injury to his back in which there was present pre-existing lumbar pathology. I accept the medical evidence that the plaintiff has been unfit to work since the accident and I accept that disability referable to the back injury will continue in the future.

143 I also accept that the accident has led to significant interference in the plaintiff’s ability to enjoy life, albeit by no means to the extent claimed.

144 The plaintiff may well benefit from treatment at a pain management clinic as advised and he may well benefit from psychiatric treatment of the type referred to by Dr Burke. A more positive attitude by the plaintiff may well lead to improvement in his condition but nevertheless his future is uncertain.

145 The assessment of damages in this case is governed by the Civil Liability Act 2002 (NSW). For the purposes of arriving at an allowance of damages for non economic loss I assess the severity of the plaintiff’s loss as being 40% of a most extreme case and accordingly I allow for this head of damages the sum of $189,600.

146 The parties have agreed on the figure to be allowed for past economic loss. The agreement is that the plaintiff should be awarded $130,000 under this head of damages, that being the total amount he has received by way of periodic workers’ compensation benefits to date. I include this agreed figure in my assessment.

147 There is also agreement as to past out of pocket expenses in the sum of $27,717 and that sum I include in my assessment.

148 Mr Rewell has submitted that the claim for future economic loss warrants an allowance based upon a finding that the plaintiff is unlikely to be able to work in the future by reason of the effects of his injury. Mr Roberts on the other hand has submitted the plaintiff has a residual capacity to so some part time work, and that I should measure the ongoing economic loss at a figure of $250 net per week.

149 When he addressed this issue in May 2007, Dr Nicholls regarded the plaintiff as totally unfit to resume work in his pre-injury capacity or in “any other occupation he could reasonably be expected to follow”. He went on to opine:

150 He then considered that the prognosis was that significant lower back symptoms would persist in the long term whether the plaintiff had surgery or non operative treatment. The position was unchanged in Dr Nicholls opinion when he saw the plaintiff again in March 2008. I accept what Dr Nicholls said, and was influenced by his opinion in making my assessment of damages for non economic loss.

151 The more recent assessment of the plaintiff by Dr Burgess in September 2009 casts no doubt on the prognosis entertained by Dr Nicholls. Dr Burgess thought the plaintiff would benefit from pain management support. Dr Burgess concluded that the plaintiff was “no longer fit to work in the wool shed in any way or in any job that places specific stresses on his back.”

152 I conclude that the plaintiff has been left with chronic back disability caused by the effect that the fall produced, on a back that had underlying degenerative changes as revealed in the xrays, the CT and the MRI described in Dr Nicholls’ first report. I accept that the work of a wool presser was heavy work and I am satisfied having regard to the plaintiff’s employment history that he has no qualifications for work other than of a manual type. His level of education is very limited and there is no evidence to indicate that he would be suited for retraining in clerical work or other light work. No evidence has been introduced by the defendants directed to proving some residual work capacity. Of course the onus is on the plaintiff to prove the extent of his loss of earning capacity but it seems to me that it has been established on the balance of probabilities that this plaintiff will be incapable of returning to work in the future.

153 Had he not been injured I consider it most likely that the plaintiff would have continued to work as a wool presser. Mr Alchin gave evidence that the plaintiff was a good worker and that he was a regular member of Mr Alchin’s shearing team. In completing Exhibit D, Mr Alchin recorded the plaintiff’s gross weekly rate as at the time of his accident at $1,000. On the basis of this evidence Mr Rewell has invited me to quantify the measure of the plaintiff’s ongoing economic loss as $700 per week net. That figure Mr Rewell submitted is a true reflection of the measure of the plaintiff’s loss of earning capacity.

154 Because the plaintiff is to be compensated for diminution of his earning capacity it is relevant to consider the extent to which the capacity lost may have been productive of financial loss (see Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 particularly the dicta of Dixon CJ and Kitto and Taylor JJ at 347; see also Rabay v Bristow [2005] NSWCA 199 and Kallouf v Middis [2008] NSWCA 61.

155 Though Mr Alchin referred in his evidence to a gross weekly rate of $1,000 the plaintiff did not earn $700 week net prior to his accident, or anything like it. I referred earlier to the plaintiff’s income tax returns and the income disclosed in them. The plaintiff was not paid in cash by Mr Alchin and I am satisfied that the returns in evidence record precisely what the plaintiff received by way of income whilst he worked with Mr Alchin. Shearing is seasonal work and the shearing program can be affected by weather. Whatever the explanation for the difference between the net income disclosed in the plaintiff’s tax returns and the evidence of Mr Alchin to which I have just referred I treat the figures disclosed in the plaintiff’s tax returns as establishing what he was earning at the time he was injured. The plaintiff’s total income for the year ended 30 June 2005 was stated in his tax return to be $25,177. Of that income $19,400 gross was received from the Alchins. The balance of the income came from seven other sources. In the year ended 30 June 2004 the plaintiff’s tax return shows that he earned a total income of $23,724. Of that sum $17,333 came from the Alchins and the balance came from nine other sources. The plaintiff’s evidence was that he worked for other farmers and this is reflected in those income tax returns. The plaintiff said that all his income came from wool pressing. Although the plaintiff said in evidence that he received cash payments, ultimately his evidence in cross examination was that his income tax returns disclosed his true income, and I proceed on this basis.

156 Mr Alchin gave evidence that farmers paid by cheque and where the Alchin shearing team went to properties where the farmers paid the workers they did so by cheque. Mr Alchin was asked (T282):

158 It seems to me on the evidence that has been presented that to measure the plaintiff’s ongoing loss of earning capacity in the relevant sense at $700 per week would be to measure it too highly. No doubt there has been some increase in earnings in the shearing industry since 2005, if only to keep pace with inflation. Mr Roberts submitted what the tax return completed by the plaintiff for the year ended 30 June 2005 evidenced was net weekly earnings of $412. Mr Roberts invited an allowance of a 20% increase over the past 5 years bringing what the plaintiff would now have been earning to $511 net per week.

159 With the increasing demands which a growing family would have placed upon the plaintiff it seems to me not unlikely that the plaintiff would have intensified his work activities to some extent had he not been injured. In the circumstances of this case I measure the compensable lost capacity for work currently in the sum of $575 net per week. But for the accident I think it probable that the plaintiff would have worked for another 33 years. The lump sum presently required to compensate for a loss of $575 per week for that period on the 5% tables is $492,200.

160 That allowance must be adjusted for the vicissitudes of life. In this case I consider that an appropriate discount for the vicissitudes is 20% bearing in mind the plaintiff’s pre-exisiting degenerative changes. The plaintiff had been off work in 2001 having hurt his back whilst cutting firewood. He had low back pain at that time which affected his ability to work for a few months (T59). I accept also that the plaintiff claimed to be suffering some minor pain on arrival at work on 31 October 2005, accepting as I do Mr Corby’s account of his conversation with the plaintiff that morning. Had this accident not happened the plaintiff would have been dependent for his earnings upon performance of manual labour and his vulnerability by reason of the pre-existing pathology warrants the increased deduction for the vicissitudes.

162 The plaintiff makes a claim for lost superannuation benefits, linked of course to his claim for damages for future economic loss. Mr Rewell submitted that it is appropriate to allow 11% of the amount awarded for future economic loss and I accept this submission having regard to s 15C of the Civil Liability Act 2005 (NSW). Hence I allow for lost superannuation benefits the sum of $43,313.

163 Mr Rewell submitted that provision should be made for future medical expenses and that it would be appropriate to allow “a buffer” of $50,000 in respect of this claim.

164 The evidence in point is extremely meagre. Dr Burke provided some costings for the psychiatric consultations he contemplated. The costs he stated to be $275 per consultation, and he thought that 20 consultations over a 2 year period were warranted. Anti depressant medication would cost $30 to $60 per month over that period. The total cost of this treatment would be $6,250, if the plaintiff undertakes it.

165 The plaintiff provided costings for the medication he is taking at present. Fentonil costs $376 for a box of ten patches and one patch lasts three days. He takes muscle relaxants: he takes two tablets per night and a box of 100 tablets costs $10. He also takes an anti depressant, but of course if he undertakes the treatment suggested by Dr Burke the cost of medication has been provided for in Dr Burke’s calculations.

166 There is no satisfactory evidence as to what the cost of pain management treatment would be or as to the cost of such medication as the plaintiff may reasonably require in the long term. There is no satisfactory evidence from the plaintiff as to his willingness to undertake pain management treatment in the future. There is evidence he was unwilling to submit to such treatment when it was proposed in the past.

167 I am not persuaded that the evidence supports the making of an allowance in the amount for which Mr Rewell contends. I am however influenced by Dr Burke’s report to allow for the regime of psychiatric treatment the doctor has proposed and I am mindful of the fact that the plaintiff has seen a psychiatrist in the past and I infer that he would be willing to do so in the future. I consider it reasonable to make some allowance for medication and medical consultations as well as provision for the psychiatric treatment advised. In all I allow for future out of pocket expenses the sum of $12,500.

168 The plaintiff makes a claim for provision of domestic assistance both past and future. For the past the amount claimed has been calculated precisely at $59,445. For the future the claim advanced is for an allowance of $327,035. For the quantification of both claims the plaintiff relies upon the content of the report of the occupational therapist, Ms Tchan. This claim has been strenuously resisted and Mr Roberts has submitted that no allowance should be made in respect of this head of damages either for the past or for the future.

169 In the past the assistance provided and to which this claim relates was provided by Ms Manwaring. There has been no care provided from commercial sources; it has all been provided gratuitously.

170 It is of course for the plaintiff to prove this claim in respect of gratuitous care services and to satisfy the requirements of s 15 of the Civil Liability Act 2005 (NSW) and in particular, subss(2) and (3):

171 The plaintiff gave evidence that he shared household tasks with Ms Manwaring before his accident. He said that he did all the cooking and the garden and he acknowledged that Ms Manwaring probably did “a bit more” than he did in relation to the domestic tasks because Ms Manwaring was at home more than he was. Ms Manwaring said in her evidence in chief that prior to the plaintiff’s accident the housework was shared 50/50. However, it emerged in cross examination that Ms Manwaring only worked five hours per week and the plaintiff was absent at work all day. Contrary to the plaintiff’s assertion, Ms Manwaring said that she normally prepared the evening meal and Ms Manwaring acknowledged in cross examination that the plaintiff’s working hours prevented him from doing nearly as much as Ms Manwaring around the house.

172 It seems to me to be probable that Ms Manwaring did the majority of the domestic chores prior to the plaintiff’s accident and this was likely to have continued to be the position had the plaintiff not been injured. This is a material finding for the purposes of s 15(2)(c) of the Civil Liability Act.

173 Has the plaintiff proved a reasonable need for the services provided by Ms Manwaring since his accident? If so, has the need arisen solely because of the injuries sustained by the plaintiff?

174 The only specialist doctor whose report was introduced into evidence and to whom the plaintiff was referred for treatment was Dr Hillier. Dr Hillier did not see the plaintiff after 8 May 2006 but I note that when Dr Hillier saw the plaintiff in May 2006 he considered that the plaintiff was then able to walk freely and did not then require “direct nursing care or help from his family”. As to home activity Dr Hillier commented that at that time he would have expected the plaintiff to have had trouble “coping with normal household tasks, particularly those that require a degree of physical labour such as moving rubbish or mowing lawns or doing any heavier lifting tasks”.

175 The remaining specialist doctors whose evidence was introduced at the hearing saw the plaintiff only for medico legal purposes. Dr Nicholls recorded the plaintiff’s complaints but did not specifically address the issue of the plaintiff’s capacity to undertake the various tasks arising for consideration on this claim.

176 Dr Burgess took a history from the plaintiff that his wife had “largely“ cared for him including shaving him and self care. The doctor did not however address the plaintiff’s capacity for activity other than work related activity when expressing his opinion and prognosis.

177 Dr Burke saw the plaintiff once in July 2008 and understandably his focus was on the area of his own expertise.

178 The evidence upon which the plaintiff relies is essentially that which he gave, the evidence of Ms Manwaring and the evidence of Ms Tchan, whose expertise is that of an occupational therapist.

179 Ms Tchan has provided a very lengthy report dated 23 September 2009 following her attendance at the plaintiff’s home a few days earlier. I do not propose to record an exhaustive review of the content of her report which extends over 46 pages. Plainly, Ms Tchan has been largely dependant on what the plaintiff told her in structuring her report and in determining the plaintiff’s need for care and the time it has taken to address these needs in the past.

180 Ms Tchan has addressed the need for care in the past during specific periods:

181 In the “maximum care” period Ms Tchan quantified the hours required at over 35 hours per week; in the “high care” period over 23 hours per week; in the “high to moderate” care period over 16 hours per week; in the “moderate care” period over 10 hours per week and in the “moderate to low” care period at over 8 hours per week.

182 The evidence given by the plaintiff and by Ms Manwaring does not fit comfortably with Ms Tchan’s classification of the various care periods. In his evidence the plaintiff asserted that his back has not improved at all since the accident (T50); and Ms Manwaring said that until two months before the hearing in Wagga the plaintiff spent virtually all day every day in bed and that she had to do everything in the house (T184).

183 I have read and re-read the plaintiff’s evidence about what he claims he has been able to do and what he claims he has been unable to do since October 2005 and I am unable to accept that he has been disabled to the extent claimed. I consider he has grossly exaggerated the nature and extent of his disabilities. In coming to this conclusion I have not ignored the evidence of Ms Manwaring, but I do not accept that there has existed a reasonable need for her to have performed all that she claims to have done for the plaintiff.

184 It seems to me to be reasonable that the plaintiff may have required some personal assistance in the period immediately after his fall. Further it would seem to be reasonable to expect the extent of any need would have tapered off with the passage of time. However, the plaintiff is required to establish a need and the provision of services to meet that need for at least 6 hours per week and for a period of at least 6 consecutive months.

185 Taking the period of “high to moderate care”, that commenced according to Ms Tchan’s report on 18 February 2006, somewhat less than 4 months after the fall, (para [180(c)] above) Ms Tchan has provided in her costings for this period nearly 4 hours assistance per week for what is categorised as personal and attendant care. This includes toileting, pain relief, showering and dressing over this period. I am not satisfied that by February 2006 the plaintiff was unable to fully meet his own personal requirements in the areas addressed by Ms Tchan. I do not accept that there was an ongoing need for assistance for the plaintiff in showering, shaving or dressing. Indeed I am not satisfied that by February 2009 there was any aspect of personal or attendant care which the plaintiff was unable to deal with himself.

186 For this same period Ms Tchan has quantified the need for domestic and general household care at nearly 11 hours per week. This involves all aspects of housework: the cleaning, the laundry, food preparation and purchasing.

187 It seems to me that Ms Manwaring would have been doing the majority of this work in any event, even if the plaintiff had not been injured. Moreover, by February 2006 I am not satisfied that the plaintiff was unable to make a meaningful contribution to the performance of household chores, except that he may have had difficulty with specific chores involving heavy lifting and tasks exposing his back to heavy stress. I do not accept that there was a measurable need amounting to nearly 11 hours per week or anything like it.

188 The extent of the need outdoors has been quantified at 1.7 hours for this period. This includes heavy gardening and I would accept lawn mowing and heavy gardening would have been activities to be avoided. I accept also that those sort of activities are activities which the plaintiff would have performed and not Ms Manwaring, had the plaintiff not been injured.

189 Considering overall the claim presented for general household care and outdoor maintenance I do not consider that the plaintiff has proved a compensable need that satisfies the requirements specified by s 15(2) and (3) of the Civil Liability Act for this period.

190 It is not contended that the extent of required care was constant from 18 February 2006 onwards. Rather it is treated as having tapered in the later periods addressed in Ms Tchan’s report. The categories of care considered by Ms Tchan remained the same for the various periods after February 2007. Having considered each of the periods specified in paragraph [180] above, I am not satisfied that the plaintiff has met the requirements of s 15(2) and (3) in respect of any one of them.

191 Dealing with the claim for current and future care addressed on page 10 of Ms Tchan’s report the need is quantified at 8.5 hours per week which includes 1.9 hours for personal care. Consistently with the findings above expressed, I am not satisfied that the plaintiff lacks the capacity to meet for himself any of the needs here considered. In dealing with the items listed “domestic – internal” again I find that the majority of these services would in any event have been provided by Ms Manwaring. The plaintiff has the capacity to do light housework. I am not satisfied that the plaintiff is unable to do the washing up as he contends and I am not satisfied that the plaintiff would be unable to cook if he wanted to do so. Outside the house I accept that the plaintiff would be unable to do the lawns and activities imposing heavy stresses on his back.

192 Considering Ms Tchan’s analysis of current and future care as set out on page 10 of her report I do not find that the plaintiff has established a current and prospective need for care of at least 6 hours per week.

193 I am not satisfied that the plaintiff has proved an entitlement to an allowance for the services that have been provided for him in the past by Ms Manwaring, having regard to the statutory restraints imposed concerning this head of the plaintiff’s claim. Nor am I satisfied that there is a future need for care at the level and of the nature presented on page 10 of Ms Tchan’s report. The claim in respect of gratuitous care fails for the past as does the claim in respect of gratuitous care for the present and for the future.

195 Mr Rewell submitted that provision should be made for future care at commercial rates. It was submitted that it is unlikely that Ms Manwaring will continue to provide for the plaintiff’s needs having regard to the strain the relationship has been under by reason of the plaintiff’s disabilities.

196 Section 15 of the Civil Liability Act 2002 (NSW) does not of course preclude the making of an allowance for the provision of care in the future at commercial rates provided the evidence warrants such allowance. The restraints imposed by s 15(2) and (3) do not apply in respect of a need for future commercial domestic assistance. In Miller v Galderisi [2009] NSWCA 353 Allsop P and Basten and Macfarlan JJA said in their joint judgment at [18]:

197 I referred earlier to evidence by Ms Manwaring to the effect that on a few occasions she had contemplated leaving the plaintiff – either with or without the children – but the relationship has improved since then, and I think it more likely than not that Ms Manwaring will remain with the plaintiff in the future and will continue to provide household assistance as she has done in the past.

198 It is not unreasonable to expect that the psychiatric treatment recommended by Dr Burke and for which provision is made in the assessment of damages will benefit the plaintiff, and stimulate in him a more positive attitude than that which he has adopted in the past. The conclusion of this litigation and the award of damages the plaintiff is to receive can also be expected to ease tensions in the personal relationship between the plaintiff and Ms Manwaring.

199 No evidence has been given in this case of any intention to engage a commercial source to provide domestic assistance in the house after this litigation has concluded. Ms Manwaring did however give evidence that she has arranged for somebody to come to the house to mow the lawn and he is paid for his services. His services are provided monthly at a cost of $50 per visit. Ms Manwaring’s evidence was that the plaintiff was unable to mow the lawn and Ms Manwaring has enough to do without performing this task (T178). Ms Manwaring’s evidence to this effect was not challenged and I accept it.

200 I accept on the balance of probabilities that the plaintiff is unable to do heavy gardening work and this includes mowing the lawns. The evidence does not establish when the lawn mowing service was first engaged nor how much has been paid for this service to date but I consider it reasonable to make provision for the cost of having gardening services provided in the future.

201 Prior to and since the accident the plaintiff has lived in rented cottage accommodation. I think it likely that the plaintiff will continue to live in a cottage in the country indefinitely and that the need for gardening services will continue indefinitely. The plaintiff has a life expectancy of 52 years, but it is unlikely that the plaintiff had he not been injured would have continued to maintain a lawn and gardens for 50 years. I allow for gardening services until the plaintiff attains the age of 70 years, but the allowance for that period is to be discounted for the vicissitudes, having regard in particular to the pre-existing degenerative changes which may have prevented him from gardening at some time in the future. Rounding my calculation off I allow $8,300 for the provision of future lawn mowing services (based on a cost per visit of $50).

202 I am satisfied that the plaintiff is unable now and in the future to perform heavy household duties because of the effect of the compensable injury to his back. Had he not been injured, it is likely that the plaintiff would have assisted in performing the heavy household duties which I conclude he is now unable to perform. Based on Ms Tchan’s analysis it is reasonable to conclude that it would take an able bodied person two hours per week to carry out the heavy household chores I presently have in mind. If tomorrow Ms Manwaring became unavailable to carry out such work then the plaintiff would have to engage commercial services at $38 per hour and this would cost him $76 per week. Arriving at this cost I adopt the hourly rate to that effect from Ms Tchan’s report. As with the lawn mowing services, I do not think if the plaintiff had remained uninjured that he would have continued to do such heavy household work until the age of 84 years, but rather that he would have ceased such work in any event by the age of 70 years. The lump sum presently required to provide for $76 per week on the 5% tables for 38 years is $68,628. That sum would require discounting for the vicissitudes and I would adopt a 20% discount for the same reasons as influenced the provision made for future gardening services. This would have reduced the allowance to be made on the hypothetical basis I have been considering to $55,000 in round figures.

203 Because Ms Manwaring is presently meeting the need for those services gratuitously this claim does not attract that hypothetical allowance. It is possible that the plaintiff’s relationship with Ms Manwaring may break down at some time in the future and it is possible that Ms Manwaring may become unable to cope with carrying out all the household duties at some future time. Is the possibility of this occurring fanciful or so slight as to make it merely speculative? If so I should ignore it in my assessment: Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638.

204 I consider that the plaintiff’s situation in this case is distinguishable from that of the plaintiff in Miller v Galderisi and I conclude that there is a real possibility that the plaintiff may have to pay for those household services I have just considered at some future time and in recognition of this I propose to include an allowance of $11,000 in the award of damages in this case.

Damages for non economic loss	$189,600
Out of pocket expenses
Past	$27,717
Future allowance	$12,500
Past economic loss	$130,000
Future economic loss	$393,760
Lost superannuation benefits	$43,313
Provision for future gardening assistance	$8,300
Provision for possible future domestic care	$11,000
TOTAL	$816,190

206 The plaintiff’s damages are to be reduced to bring into account the finding of contributory negligence. Hence the damages are to be reduced to $693,762 omitting cents.

207 That figure is to be further reduced to bring into account the impact of s 151Z of the Workers Compensation Act 1987 (NSW) and the finding I have expressed at paragraph 101 above.

209 No submission to the contrary having been advanced it seems to me that in this case costs should follow the event.

Supreme Court of New South Wales

Richards v Hill & Hill [2010] NSWSC 949 (24 September 2010)