District Court New South Wales Medium Neutral Citation: Julie Walker v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust; ; Shear Away Pty Limited v Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust [2021] NSWDC 147 Hearing dates: 16-18 November 2020 Date of orders: 23 April 2021 Decision date: 23 April 2021 Jurisdiction: Civil Before: Weinstein SC Decision: Judgment for the plaintiff in proceedings 2018/166427 and 2018/357572 Catchwords: Negligence – occupier's liability – employer's liability – duty of care – foreseeability of risk – causation – causation – damages – non-delegable duty – economic loss – gratuitous attendant care service Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946 Workers' Compensation Act 1987 Cases Cited: Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649 Avopiling Pty Limited v Bosevski [2018] NSWCA 146 Clifton & Ors v Lewis [2012] NSWCA 229 Coleman v Barrett [2004] NSWCA 27 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Davie v New Merton Board Mills Ltd [1959] AC 60 Dell v Dalton (1991) 23 NSWLR 528 Dib Group Pty Limited v Coles [2009] NSWCA 210 Kwanchi Pty Limited v Kocsis (1996) 40 NSWLR 270 Moran v Nominal Defendant [2008] NSWSC 804 Southgate v Waterford (1990) 21 NSWLR 427 State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 at [88] Strong v Woolworths Ltd [2012] HCA 5 Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25 Category: Principal judgment Parties: Julie Walker (Plaintiff in proceedings no 2018/166427) Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust (Defendant/Cross-Claimant in proceedings no 2018/166427) Shear Away Pty Limited (Cross-Defendant in proceedings no 2018/166427) Shear Away Pty Limited (Plaintiff in proceedings no 2018/357572) Top Hut Banoon Pastoral Co Pty Limited trading as Trustee the Wakefield Family Trust (Defendant in proceedings no 2018/357572) Representation: Counsel: Plaintiff in proceedings no 2018/166427: Mr B Dooley SC Defendant/Cross claimant in proceedings no 2018/357572, Defendant in proceedings no 2018/166427: Mr J Sleight Cross Defendant in Proceedings no 2018/166427, Plaintiff in proceedings no 2018/357572: Mr P Rickard Solicitors: Plaintiff in proceedings no 2018/166427: Don Cameron & Associates Defendant/Cross claimant in proceedings no 2018/357572, Defendant in proceedings no 2018/166427: HWL Ebsworth Cross Defendant in Proceedings no 2018/166427, Plaintiff in proceedings no 2018/357572: Stiles Lawyers File Number(s): 2018/166427 2018/357572 Publication restriction: N/A Judgment 1. The plaintiff filed a Statement of Claim in 2018, alleging negligence against Top Hut Banoon Pastoral Co Pty Limited t/a Trustee for the Wakefield Family Trust, who was the occupier of premises at Banoon she was attending as a shearers' cook. The defendant occupier, who admitted three breaches of duty during the course of the trial, filed a Cross Claim against the plaintiff's employer Shear Away Pty Limited alleging a breach of duty of care, and in particular a failure on the part of the employer to inspect the premises of the occupier prior to the arrival of his employees at those premises. The occupier seeks a contribution or an indemnity pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (the Main Proceedings). The employer denies that it was negligent as alleged in the Cross Claim. 2. In separate proceedings that were heard at the same time as the Main Proceedings, the employer seeks recovery of the payments made to the plaintiff of workers' compensation pursuant to the section 151Z(1)(d) of the Workers' Compensation Act 1987 (the WCA) (the Recovery Proceedings). There was an order made prior to the hearing that evidence in the Main Proceedings be evidence in the Recovery Proceedings and vice versa. 3. There was no dispute that the plaintiff had at least 15% whole person impairment, and thus had an entitlement to modified common law damages in the event that the employer was found negligent pursuant to section 151H of the WCA. 4. The Civil Liability Act 2002 (the CLA) applies with respect to the claim against the occupier, but it does not apply when considering any case against the employer. Rather, the common law applies with respect to the negligence of the employer, and any damages awarded are to be assessed on a modified common law basis pursuant to the provisions of the WCA. 5. In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: section 142 of the Evidence Act 1995. 6. Facts 7. There were two lay witnesses called in the proceedings. The first was the plaintiff who was the only witness called in her case by Mr Dooley. The second was the plaintiff's nominal employer Mr Wayne Godde. His wife is the owner and director of the employer, but it is he who carried out all the shearing contract duties on behalf of the company and controlled all its employees on site. He was called by Mr Rickard on behalf of the employer. Mr Sleight, who appeared on behalf of the occupier, called no witnesses. 8. It was not in dispute that the plaintiff fell off a step at the occupier's premises whilst in the employ of her employer as described by her in her evidence. She walked up and down the step when she walked in on a first occasion to get her toiletries. She then walked out and back, after having showered. It was only on the third occasion when the plaintiff was walking out of the premises, that the step moved and fell apart and she fell onto the ground. 9. There was no dispute that the plaintiff suffered the following injuries:- 1. An injury to the lower back; 2. An injury to the right wrist; 3. An injury to the left ankle; 4. An injury to the right knee; 5. A psychiatric injury formulated as an Adjustment Disorder; and 6. An exacerbation of her type 1 diabetes mellitus. Evidence of Ms Julie Walker 1. The plaintiff, Ms Walker, gave evidence before me. She began working as a shearers' cook only in about 2014, although she has worked on and off in various roles throughout her life. The shearers' cook job involved cooking for approximately 15 – 20 people. Her day would start at about 4:30 am, and she began cooking breakfast at 5 am. After breakfast, she cooked morning tea at about 9:30 am and then cooked lunch. She would later make an afternoon tea consisting of sandwiches, cakes or hot food. Finally, she would cook dinner. Throughout the day she would clean the dishes and the kitchen. She would finish work at approximately 10 or 10:30 pm. Ms Walker described the work as "constantly busy". She stated that the job sometimes involved lifting heavy pots and pans, and that it could involve bending and lifting when packing and moving things from one shed to another. 2. Ms Walker has had various medical issues throughout her life. She was diagnosed as diabetic in 1999 and her treatment involves multiple daily injections. She told the court that because of the incident, she has been unable to exercise and has gained lot of weight. She has had to increase her dosage of injections to 5 a day as well as taking Metformin tablets. She now takes more insulin due to the weight gain and has become insulin resistant. She had a sensor put into her arm which is connected to the Royal Adelaide and the Queen Elizabeth hospitals in South Australia, so that they can see whether her insulin needs to be adjusted. She said that she put on over 30 kilograms after the incident, but in the last three months she has lost 9 kilograms. The plaintiff previously suffered from left shoulder bursitis and chronic post‑traumatic stress disorder (PTSD). 3. Between the ages of 9 to 13, Ms Walker was subject to sexual abuse. The perpetrator was tried in 1993. This caused her to suffer PTSD. She stated that due to her anxiety and PTSD she cannot work in the city, that she struggles to be around a lot of people and that her PTSD can be triggered if she sees someone who looks like the perpetrator. She said that she has become antisocial since the trial of her abuser. Ms Walker said that it can impact her as often as once a day or every second day, depending on the trigger. Although she trained as a nurse's aide, the longest she has ever been able to work was for 5 months. Ms Walker said that doing her job as a shearers' cook eased the post‑traumatic stress to the extent that she stopped having anxiety attacks and bad depression. It was her evidence that this was the first time she had ever felt comfortable at work. 4. On 28 July 2015, the plaintiff arrived at Banoon station at dusk. The plaintiff used the steps outside the accommodation hut several times without incident. That evening, after the plaintiff had a shower, she was returning to her room when she put her foot on a step, and as she was bringing her other foot down, she felt it tilt and she was then on the ground screaming out for help. She said that she noticed that the step had broken and one side had come "loose of the wood" and had torn completely off, the other side was "hardly attached but there". A shearer came over and helped her. When asked about lighting, she said that she could see the step with the reflection from the kitchen light. She had not missed her footing or mis-stepped. After the accident she said that she was in "shocking pain" and that it felt like her right forearm was broken. She had a twinge in her back and her left ankle was very painful. 5. The next day, 29 July 2015, she tried to cook breakfast but was in so much pain that she drove herself to Mildura Base Hospital. She returned to the station on crutches. The farmer on whose land the incident occurred apologised, and got her a big chair to sit on while she did the dishes and prepared meals. He also got an old man to help her that day. He said to her words to the effect of: "I'm very, very sorry that this has happened to you" and he apologised profusely. He immediately fixed the step, by nailing it back in place and then he sent his brother up to Top Hut to get a light for outside. She kept doing her job with crutches and help, but she had trouble standing and had continuing pain in her hand. 6. As soon as she got back to her home in Adelaide, Ms Walker had an x-ray taken of her foot and right wrist. She was told that she could have an operation but was advised against it because of her diabetes. She said that her ankle recovered in about five to six weeks. She stated that although she had a fractured bone in her foot, she did not want to let her boss down. Mr Godde asked if she had a friend who could help out, and so she returned to work with a friend. However, Ms Walker could not stand on her foot. She had pain in her hand and back, and was struggling so much that on 18 August 2015 she had to quit her employment. She started physiotherapy and hydrotherapy. She had a CT scan performed of her back and an MRI of her wrist. She had her wrist in a brace and was doing therapy every week, but there was little improvement to her wrist. She currently takes Insulin, Metformin, Somac, cholesterol and blood pressure pills, Tramal, Panadeine Forte and Panadol Osteo. 7. Before the incident, Ms Walker said that she had intended to look for a full-time position on a cattle station. Her intention was to work until her late 60s. 8. In cross-examination, Ms Walker stated that she loved working as a shearers' cook and that it suited her PTSD. She told Mr Sleight that her wages varied depending on how many people she cooked for, but was roughly about $980 net per week. She had been on a disability support pension since 2009. In the tax year ending 30 June 2012, she worked as a nurse's aide earning $4,017 and that was the only job she had. In the tax year ending 30 June 2014 her only employment was with Doily Bett Discretionary Trust, where she earned $4,730. Her first year as a shearers' cook was in 2014. In the tax year ending 30 June 2015, she secured employment as a shearers' cook for a total of eight weeks. Prior to her injury, she was planning to go with Mr Godde to regional New South Wales and work as a shearers' cook at other remote stations. 9. After the accident, she went to a doctor regarding pain in her hips. She saw a hand specialist and an orthopaedic surgeon. She stated that in 2017 "WorkCover had stopped" because she had no capacity for work and therefore was not entitled to hydrotherapy. 10. The plaintiff was not cross examined on the mechanism of her injury or any aspect of liability. She was cross examined only on economic loss and her need for care and assistance. The occupier's plea of contributory negligence was properly abandoned after cross examination. 11. No person was called to give evidence on behalf of the occupier. Neither did it tender any medical evidence. Evidence of Mr Wayne Godde 1. Mr Wayne Godde was called to give evidence on behalf of the employer. He has been a shearing contractor for his wife's company Shear Away Pty Ltd for 25 years. The job involves extensive regional travel, from Culcairn to Mildura, and from Nimbin to Cooma. He said that Ms Walker began working for the company in 2015. At that time, they employed six shearers as well as six other staff. After initially shearing at Top Hut, everyone moved to a property known as Banoon, also owned by the Top Hut Banoon Pastoral Company. They travelled to Banoon on 28 July 2015 and arrived at around 5 pm. Banoon comprises a row of huts: primary accommodation, a separate cook house and another lot of separate accommodation. This was the third occasion that Mr Godde had stayed there, having previously stayed in 2013 and 2014. There had not been any prior issues at Banoon. Mr Godde said that if there were minor issues, he would talk to the farmer and ask for repairs to be made for the following year. There had been no discussion about problems with any steps or stairs. 2. When they arrive at a new location, Mr Godde stated that everything must be organised for the following days. They put the stores in the mess, cart the wool press, and set up the shed for the next day. They lift the stores out of the trailer and complete various other jobs. On 28 July 2015, he arrived at about 5 pm, which he described as dusk. He passed and glanced at the step at various times whilst performing his unloading work from the kitchen door, and did not notice anything amiss. 3. At about 7 pm, Mr Godde became aware of Ms Walker's injury when another employee informed him that she had hurt herself. He came over and saw Ms Walker on a chair and she showed him her swollen ankle. He observed that the steps, the subject of this incident, were two bits of timber put on a plank which were neither nailed nor screwed down. After the plaintiff's accident, the timber came apart. Mr Godde noted that the lighting was very dim, and that although there had been a sensor light, it was not working well. 4. The following day, Mr Godde had a conversation with the owner of the property Mr Wakefield. Mr Godde explained that the property was not adequately set up and that when Ms Walker had come down the steps, the two bits of timber had come apart. Mr Wakefield responded, saying "my son-in-law was supposed to fix all these sort of things before the shearing." The step was then screwed into place and fixed. Mr Godde went back to the property in 2016, and he observed that all the steps had been replaced with new steel steps. 5. In cross-examination by Mr Sleight, Mr Godde stated that each year he has conversations with property owners about the state of the shearers' accommodation. He said that he sometimes permits his employees to go into a shearing shed and use the equipment without inspecting it first, and that his industry was so 'backwards' that if they did not do the job, they will be replaced. He stated that he believed that it was the occupier's job to upkeep the equipment. He acknowledged that landlords are often reluctant to make improvements in shearing sheds. He must cart this own shearing motors around due to the 'state of the industry'. He stated that there is a reluctance on the part of landowners to spend money on accommodation which is used only twice a year, and that there can be defects with accommodation. Mr Godde agreed with Mr Sleight that it would be prudent to inspect the accommodation to ensure that it is safe for employees. However, he said that he could not be expected to go around and inspect and tap every piece of timber throughout the quarters and shearing sheds. 6. In cross-examination by Mr Dooley, Mr Godde said that it is routine to finish work at one station, to send the shearers on in advance, and then to pack up and arrive at the next station. It is also usual to arrive late in the afternoon or early in the evening as they have to pack up and clean the previous shed. When they arrived that day in July 2015, it was dark. He said that Ms Walker had already walked up and down the stairs several times and that he had a clear sightline to the step which looked "perfectly normal and fine". He said that the only way he could have discovered the step was unsafe, was to have physically attempted to raise the step with his hand or kick it with his foot. If that was required, he said that he would have had to do that to hundreds of steps throughout the huts. 7. Mr Godde stated that his wife looks after the rate of pay but that if the cook is cooking for over 13 people, the rate goes up per person. Being a shearing cook includes free food and free accommodation. The main chef is employed for 30 weeks a year. They may get another cook to do other jobs, or employ a second cook if they are using a couple of sheds. 8. There was no suggestion that the plaintiff was anything other than an exemplary employee. 9. Jones v Dunkel 10. There were several witnesses who could have given evidence on material issues. The occupier Mr Wakefield was not called by the defendant. Neither was the plaintiff's son Travis or friend Allan, on the question of care and assistance. I find that their evidence would not have assisted the defendant's and plaintiff's cases, respectively. 11. Findings on demeanour 12. I found the plaintiff to be an honest and impressive witness. She appeared to be candid in her responses and made appropriate concessions about her previous employment and pre-existing medical conditions in cross-examination. In my view, she did not exaggerate the extent of her injuries or her disabilities. She appeared stoic. I accept her evidence in its entirety. 13. In making this finding, I acknowledge the "fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom": see Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) [1999] HCA 3 at [88]. 14. Similar comments can be made about Mr Godde. Whilst he clearly did not enjoy his courtroom experience, and was not shy about expressing himself, I thought he gave his evidence in a forthright manner, and I accept his evidence without hesitation. 15. Liability of the Occupier 16. On the first day of hearing, the occupier admitted three breaches of duty. On the second day of hearing, it filed an Amended Defence, which admitted that it had a duty of care to lawful entrants onto its property and that it breached its duty of care, in particular because it owed Ms Walker a duty to take reasonable care to avoid a risk of injury and that it ought to have taken such precautions in response to a risk of injury that a reasonable person in the defendant's position would have taken. It admitted that it failed to provide safe access to the plaintiff's accommodation, by providing a plank resting on two blocks which had not been secured as access and failed to warn the plaintiff of the risk of injury in the circumstances. 17. It was agreed by Mr Dooley on behalf of the plaintiff and by Mr Sleight on behalf of the defendant, that the relevant risk of harm was the risk of the plaintiff stepping on to a timber step which was not affixed. I accept this formulation for the purposes of the CLA. 18. It was further accepted that the timber step was not affixed as it ought to have been, and that this was the cause of the accident. There was no dispute that the incident caused the plaintiff harm which sounds in damages. 19. So far the relevant provisions of the CLA are concerned, I am satisfied that the risk of harm was foreseeable, that the risk was not insignificant, and that a reasonable person in the defendant's position would have taken precautions against the risk of harm by ensuring that the step was affixed, taking into account the significant probability of the harm occurring if care were not taken, the likely seriousness of the harm and the minimal burden of taking precautions to avoid the risk of harm: see sections 5B and 5C of the CLA. No submissions were put otherwise. 20. So far as section 5D of the CLA is concerned, I find that the negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the defendant's liability to extend to the harm so caused. Section 5D(1) of the Act is a statutory restatement of the "but for" test of causation: Strong v Woolworths Ltd [2012] HCA 5 at 18. The determination of factual causation requires the plaintiff to prove that she would not have suffered the particular harm but for the defendant's negligence. I am so satisfied, and again, no submissions were put otherwise. 21. In the event, I find that the occupier breached its duty of care, and in so doing caused harm to Ms Walker. I assess her damages below. 22. Cross Claim/ Liability of the Employer 23. Duty of Care 24. In its cross claim, the occupier seeks a contribution or indemnity from the employer on the basis that the employer is a joint tortfeasor. 25. It is well established that an employer has a non-delegable duty to take reasonable care. In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Hayne J said at [98]: The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury. 1. In Dib Group Pty Limited v Coles [2009] NSWCA 210, Basten JA, (Beazley JA and McColl JA agreeing), said as follows: "51 The modern case law with respect to the duty of employers which despatch employees to other places or premises, may be seen to commence with the judgment of Lord Denning in Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, where his Lordship stated: 'Notwithstanding what was said in Taylor v Simms & Simms (1674 LT 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work …; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances.' … 54 The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises? 55 These questions are analogous to the approach to be adopted with respect to the acquisition of plant and equipment discussed in Davie. In such a case, it is not sensible, nor consistent with the requirement to take reasonable care, to treat the employer as "delegating" its duty to provide safe equipment to the manufacturer or supplier. So long as it has acted reasonably, the employer will not be liable for injury to its employee resulting from a defect in equipment or plant not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture." 1. It was submitted by Mr Sleight that the employer did not discharge its duty to provide proper plant and equipment, and that the supply of safe accommodation by analogy falls within that obligation. He further submitted that an employer cannot discharge his duty by making inquiries of an independent third party occupier. Indeed, Mr Sleight submitted that Mr Godde ought to have attended the site before his employees, as the defect would have been apparent from a cursory inspection. He submitted that given persons only utilised the premises every six months, Mr Godde should have devised a safe system of work that would have revealed the defect in the step. Mr Sleight said that as he failed to do this, reasonable care was not taken and the procedures he undertook were insufficient. In my opinion, this argument bears the hallmarks of hindsight bias. 2. When pressed in argument as to what would have been a sufficient inspection, Mr Sleight stated that the employer (Mr Godde) should have kicked the very step itself, or looked at it closely enough to see whether there were screws attaching it securely. He accepted that it was unclear whether the screws could be seen from the top of the steps or whether he would have had to look underneath the step. However, Mr Sleight insisted that this failure was an actionable breach. 3. Mr Rickard submitted that Mr Godde acted reasonably given the circumstances. This was the third occasion that the employer had been shearing in the shed provided by the occupier and staying in the accommodation provided by it. It was Mr Godde's evidence that he had not observed any problems with the premises previously and that no complaints had been made to or by him in relation to the step. Mr Godde's evidence was that he arrived at about 5:00 pm on 28 July 2015, which he described as being dusk. He said that he had observed the step at various times whilst carrying out his unloading work and that he saw nothing amiss. Mr Rickard submitted that to become aware of the issue with this single step, Mr Godde would have had to physically examine it and would therefore have had to touch and test every other step in both the accommodation and the shearing shed provided by the occupier. 4. In my opinion, the content of the employer's duty of care did not extend to Mr Godde arriving prior to his employees, and conducting an inspection of each and every step in the accommodation, shearing shed and the surrounds. In my view, it was unreasonable to expect Mr Godde to have conducted a separate investigation as suggested by Mr Sleight. The duty owed to the plaintiff by her employer was to do what was reasonable. Mr Rickard relied on the case of Davie v New Merton Board Mills Ltd [1959] AC 60, in aid of his submission that so long as it acts reasonably, an employer will not be liable for injury to its employee resulting from a defect in equipment or plant, not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture. I agree. 5. Breach of Duty 6. Much argument was made by Mr Sleight on behalf of the employer that the material breach of duty was a failure to undertake an inspection which would have revealed that the step was unattached. 7. The risk of harm was the risk of the plaintiff stepping on to the timber step which was not affixed and that the step might detach. It was submitted by Mr Rickard that the plaintiff's employer had no reason to know of the risk of harm or to in any way appreciate the risk of such harm. In any event, in my opinion, a reasonable inspection would not have discovered the detached step (see below). In my view, Mr Godde on behalf of the employer had a duty to cast his eyes over the premises to ensure that it appeared safe, but he did not have an obligation to manipulate each step as suggested by Mr Sleight. This must be seen in the context of Mr Godde's previous attendance at the premises and his contact with the occupier. It is not as if Mr Godde did nothing. He observed the step whilst he was unloading his trailer and carrying items to the kitchen. In my opinion, to have conducted an inspection in any greater detail than that carried out by Mr Godde would have been unreasonable. 8. I note that Mr Sleight put the breach in two ways. First, Mr Goode had a duty to kick the step or conduct an inspection which would have revealed the defect and that this duty was non-delegable. Second, Mr Sleight submitted that the supply of the accommodation to the plaintiff was within yoke of the employer's duty, and that the employer had to ensure that the third party occupier also took reasonable care. To this end, it was submitted that the employer had to ensure the safety of accommodation premises by arriving early and inspecting it thoroughly in the way that I have already described. I reject these arguments for reasons already stated. 9. In my opinion, there has been no breach of duty on the part of the employer as particularised by the cross claimant occupier. 10. Causation 11. So far as causation is concerned, I do not accept that even had Mr Godde gone ahead of his employees and inspected the premises, an inspection of the step, cursory or otherwise, or a kick of the very step would have revealed the defect. The plaintiff, who weighted approximately 93 kilograms at the time of the incident, had walked across the step on at least two occasions prior to the incident and it had not collapsed. Indeed any inspection, in my view would likely have only identified a step being in a reasonable condition. 12. In Dib Group at [56], [60] and [63] the court held that whilst the employer had an obligation to carry out a site inspection, in that case a reasonable inspection would not have disclosed the risk of injury. Thus, there was no causal connection between the breach of duty of the employer and the injury suffered by the plaintiff. The same can be said in the instant case. 13. In the event I am not satisfied that the occupier has proved on the balance of probabilities that the employer was negligent. 14. Damages 15. As I have found that the occupier alone was negligent, damages are to be assessed in accordance with the provisions of the CLA. 16. It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, the plaintiff is entitled to damages reflecting her reasonable, as opposed to optimal needs. In this case, there were some disputes about the plaintiff's reasonable needs assuming causation was made out. As to the whether or not the plaintiff has suffered the harm she alleges she suffered as a result of the incident, I note below the plaintiff's evidence as to her injuries. 17. As to the plaintiff's reasonable needs, I observe that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that "the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff", and at 662 that "the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment". In arriving at judgment on those issues, a court "must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be": see Moran v Nominal Defendant [2008] NSWSC 804, where the principles were briefly collected by Hislop J at [38]. 18. These are the principles which must be applied when determining the plaintiff's damages. 19. I observe that the parties conducted the trial without calling expert medical witnesses for cross-examination. Whilst the medical evidence was entirely uncontroversial, it cannot be said that every report was uncontentious. Mr Sleight cross-examined the plaintiff about her need for care, but chose not to cross-examine the occupational therapist qualified in her case. The occupier did not tender an occupational therapist's report in response. Notwithstanding that due to the Covid-19 pandemic, AVL facilities are now readily available and have eased the burden of calling expert witnesses for cross-examination, no such request was made to cross-examine the occupational therapist during this trial. 20. Actuarials 21. The plaintiff was born on 2 March 1961, and at the date of trial was 59 years of age. She has recently turned 60 years of age. Her life expectancy is 28 years. It was agreed at trial that the appropriate multiplier taking into account the plaintiff's life expectancy was 796.6. At the date of trial 274 weeks had passed since the date of the accident. 22. Non-economic Loss 23. The principles with respect to the awarding of non-economic loss damages are well known. An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the CLA speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (considering the like provision of section 79 of the Motor Accidents Act 1988) is therefore relevant. More recently, the Court of Appeal considered those words in Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25. 24. In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum, but suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss: 1. consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages; 2. conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and 3. award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case". 1. In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63: Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression `a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by `a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others." 1. I note that the statutory maximum for non-economic loss under the CLA is currently $687,000. 2. The undisputed evidence discloses that the plaintiff suffered injuries to her right wrist and hand (it being the dominant hand), left foot and ankle, lower back and neck. In evidence, the plaintiff described the impact the injuries have had on her life, and on which she was not cross-examined. When describing her wrist pain she said that it is still painful, especially when she moves her thumb. The swelling is permanent. She cannot bend her hand or carrying anything that is not light. She has a special kettle, has to buy pre-cut vegetables because she cannot chop, she cannot twist a jar open and it hurts when she holds a pen to write. Her back pain has "changed her whole lifestyle." She cannot walk a distance without a walking stick, she cannot engage in leisure activities, she changed her car, she struggles to get out of bed and cannot peg washing on the line. No person suggests that she is otherwise but permanently unfit for any work because of her injuries. It is not in dispute that she suffers from an Adjustment Disorder with Depressed Mood. It is also not in dispute that the injuries have exacerbated her type 1 diabetes mellitus. There is no doubt that the injuries have had and continue to have a significant impact on the plaintiff's ability to enjoy her life and have caused her a significant loss of amenity. 3. The plaintiff submits that she should receive an award of 40% of a most extreme case, i.e., $275,000.00. The defendant submits that damages should be at 30% of a most extreme case, i.e., $151,500.00. I allow 35% of a most extreme case, which yields the sum of $240,500. 4. Past out-of-pocket expenses 5. The parties are agreed that past out-of-pocket expenses are $58,347.19 and it is conceded by the defendant that they have been reasonably incurred. I allow $58,347.19 in past out-of-pocket expenses. 6. Future out-of-pocket expenses 7. The parties are agreed that the plaintiff is entitled to general practitioner review at the cost of $6.15 per week and the cost of medication at $29.50 per week, each x 796.6, which totals $28,399. 8. There is a dispute about what equipment the plaintiff will require in the future. Mr Dooley submitted that she requires the items already provided to her by the workers' compensation insurer on an ongoing basis, but does not claim the initial cost. He also claims the initial and recurring cost of a grab rail for the shower and a handheld shower grabrail. The initial cost of the former is $250 and the latter is $183. The recurring cost of all equipment is said to be $788 per annum or $15.15 per week x 796.6, which totals $12,069. With the initial cost of the grabrails, the cost of equipment is $12,502. Thus the plaintiff claims $40,901 for past out-of-pocket expenses. 9. Mr Sleight submits that the plaintiff is not entitled to the cost of any equipment as she has no reasonable need for any of it. 10. The plaintiff relies on a report of Karen Laverack, occupational therapist dated 22 September 2019. Mr Laverack conducted a four and a quarter hour assessment in the plaintiff's home on 30 August 2019. At pages 58 and 66-72 of her report, Mr Laverack made recommendations for equipment, which in her opinion was reasonably responsive to the plaintiff's needs. Ms Laverack's expertise was not challenged and she was not cross-examined. The defendant did not serve or rely on an alternative occupational therapist's report. In the circumstances, in my opinion I would need to have a good reason to reject Ms Laverack's recommendations on this point, as the provision of adaptive equipment is entirely within the purview of an occupational therapist. 11. In evidence, the plaintiff said that she has been provided with and uses a walking stick, a tilt chair, a four wheeled walker, a bedrail, bed blocks, a raised toilet seat, a long handled sponge, a long handled reacher, a slouch chair, a long handled dustpan and broom, a one handed jar opener, a long handled duster, and a buggy. Her evidence was that all these items assisted her in her activities of daily living. In keeping with the straightforward manner in which she gave evidence, the plaintiff said she had no use for a dressing stick, a special knife, long handled gardening tools, a laundry trolley or a wedge ramp (all of which were recommended by Ms Laverack). She said that grabrails (which were recommended by Ms Laverack) would assist her in the bathroom when getting in and out of the shower. 12. In my opinion, all of the equipment ultimately claimed is reasonable and necessary, and I allow the recurring cost of those items in addition to the initial cost and recurring cost of the grabrails. I allow the $433 plus the recurring cost of $15.15 per week. 13. I allow $40,901 in future out-of-pocket expenses. Mr Sleight submitted that this sum should be discounted by reason of Ms Walker's pre-existing conditions, being PTSD and some shoulder bursitis. In my opinion, the future out-of-pocket expenses ought not to be discounted. There was no evidence about the possible consequences of the plaintiff's pre-existing conditions upon the need for future out-of-pocket expenses. 14. Past economic loss 15. Ms Walker gave evidence that she loved working as a shearers' cook and that it suited her PTSD, as it was largely solitary in nature. While it is agreed that she had a varied work history, the plaintiff submits that her past earnings are not reflective of her true past economic loss since the incident. It was submitted by Mr Dooley that the plaintiff had finally found a job which she enjoyed and was capable of performing. She seized the opportunity, which she intended to pursue to her late 60s, but the opportunity was cut short by injury. I accept the evidence of the plaintiff. She spoke wistfully of her employment, and her sadness when it was taken away from her. Mr Sleight noted that the plaintiff's longest pre-injury employment was 5 months, and that she was always trying to find full-time work. In my opinion, after many years of struggling to find suitable employment, the plaintiff finally found a job that suited her skills and temperament. Some people bloom later in life. In my view, the plaintiff is amongst those persons and such is the tragedy of the instant case. After many years struggling with PTSD, and having trained as a nurse's aide, the plaintiff found that she struggled to be employed in situations where she had to be amongst many people. After working as a cook at roadhouse, she fortuitously found the work as a shearers' cook. I note that in his evidence, Mr Goode did not say anything negative about the plaintiff's performance at work and he was not cross-examined by Mr Sleight on this topic. 16. I find, therefore, that the plaintiff was a good employee who would have continued working as a shearers' cook as long as she was able. There was evidence that a full-time chef was employed by Mr Goode in his business for 30 weeks a year at a rate of approximately $60,000 per year including room and board. The plaintiff gave evidence that she had looked for work as a shearers' cook by making telephone calls and looking at Facebook pages and that she had the intention to work as a full-time cook on a cattle station. I do not doubt that word of mouth would also have assisted her, and that in the years since the incident, she would have been employed as a shearers' cook for say 26 weeks of the year, as the evidence suggested that the work was seasonal and that each contract lasted between three to five weeks. 17. It was conceded that in the years prior to her employment as a shearers' cook, the plaintiff had not earned much from personal exertion. Indeed the plaintiff's tax returns and payment summaries clearly demonstrate that in the five years prior to her injury, she never earned more than approximately $5000 net in a single year from personal exertion. 18. The plaintiff was in fact earning $920 net per week at the date of the injury which equates to $47,840 net per annum. She received free food and board. There was no evidence that the plaintiff would have given up her rental accommodation whilst working or what the value was of her free accommodation. Neither was there any evidence of the value of the free food. In the circumstances, I can make no allowance for either the accommodation or the food. 19. Mr Sleight submitted that the plaintiff's average earnings from personal exertion income in the year before her injury was $252 per week. Her earnings from personal exertion income in the three year prior to her injury was $84 per week. In the tax year ending 30 June 2012, the plaintiff worked for a nursing agency and she earned $4,000. The rest of her income that year came from the disability pension of approximately of $18,334. She had no job at all in 2013. She worked for Pycroft for approximately three weeks during the winter of 2014 (July, August or September). She then worked for Richardson Shearing for five weeks. Those were the only two jobs that she had in the next year ending 30 June 2015. There was no dispute that the plaintiff was constantly looking for work. Mr Sleight submitted $252 per week (at the maximum) was the likely reflection of her past economic loss. Therefore he submitted her past economic loss is $25,548. 20. I do not agree. For the reasons I have stated, in my opinion the plaintiff was likely to work as a shearers' cook half of the year, which amounts to $460 per week net. 21. I allow half of $920 per week (for 26 weeks per year) until the date of trial: 920/2 = $460 per week x 274 = $126,040. By consent, I allow $136,758 to the date of judgment. 22. Past superannuation loss 23. I allow past loss of superannuation at 11%: $126,040 x 11% = $13,864. By consent, I allow $15,043.38 to the date of judgment. 24. Future economic loss 25. As I have said, after many years of looking for suitable employment, the plaintiff found work as a shearers' cook. It suited her pre-existing PTSD and she was good at her work. She looked forward to performing this kind of work into her late 60s, which is the usual retirement age. I accept the plaintiff's evidence in that regard, and I find on the probabilities that she would have continued in this seasonal employment for 26 weeks per year and earned approximately $920 per week net, averaging out to $460 per week over the year. 26. At the date of trial the plaintiff was a little more than 59.5 years of age. I allow future economic loss for 7.5 years until the age of 67, which yields a multiplier of approximately 325. I propose to discount this sum by 30% to reflect adverse contingencies, on the basis of the plaintiff's pre-existing PTSD which had previously had an impact on her employability. 27. I allow $460 per week x 325 = $149,500 x .70 = $104,650. By consent, I allow $99,626.80 to the date of judgment. 28. Future superannuation loss 29. I allow future superannuation at $104,650 x 13.56 = $14,191. By consent, I allow $13,509.39 to the date of judgment. 30. Past domestic assistance 31. The plaintiff gave evidence that at present (and for many years), her son Travis cooks her meals or she eats frozen dinner packs. Her son also helps with the cleaning, washing and ironing. She said that Travis provides assistance between 10 am and 3 pm each Saturday (5 hours) cleaning the plaintiff's home. This includes cleaning the house, scrubbing the bathroom, changing the linen and washing the car. The plaintiff's evidence was that Travis did this work each Saturday and took no breaks, so that he could spend the balance of the day with his daughter. She stated that before her injury Travis did not help out. In cross-examination, the plaintiff conceded that in fact he occasionally helped out, for example changing lightbulbs. When asked if they would socialise and have chats during the time he assisted, Ms Walker said Travis does the job continuously until he finishes because he wants to get home to his daughter. 32. I accept the plaintiff's evidence. 33. The plaintiff also gave evidence that Travis took her shopping every Sunday between the hours of 11 am and 3.30 pm (4 and 1/2 hours). When she arrives at the grocery store, the plaintiff goes off and does her own shopping. Travis then assists her with her groceries and takes her home. Of this 4 and ½ hours, I allow 1.5 hours in direct assistance to the plaintiff. In addition, the plaintiff gave evidence that Travis assists with meal preparation throughout the week, and I allow 1.5 hours for assistance with preparation of the evening meals. This weekly assistance totals 8 hours, and it is in my opinion entirely consistent with the descriptions of the plaintiff in the medical evidence, and the evidence of the plaintiff herself. 34. This assistance has been ongoing since the incident and the 8 hours easily satisfies the threshold set out in section 15 (3) of the CLA. I am satisfied that there has been a reasonable need for these services to be provided and that the need is entirely attributable to the injury that the plaintiff suffered. 35. In the earlier years, when the plaintiff required assistance attending medical appointments, including a psychologist, she received assistance from her friend Allan who drove her to and from appointments. The plaintiff claims 6 hours per week for the assistance. Doing the best I can on the evidence, from the date of injury to about November 2018, when the plaintiff stopped active treatment, I allow 4 hours additional assistance from Allan. 36. Although I restricted the use of the principal occupational therapist report pursuant to section 136 of the Evidence Act 1995, so that the history contained in that document was not received as evidence of the truth, in fact the plaintiff's evidence largely corroborated the history she gave to Ms Laverack, bearing in mind the limitations on giving evidence about matters that were difficult for the plaintiff to recall with precision. It is not as if she was expected to keep a diary of every minute that any person had assisted her in the years following her injury. Some estimation is inevitable. However, in my opinion the plaintiff did not exaggerate. Her description of Travis's Saturday activities, for example, resonated with common sense human experience. 37. Mr Sleight submitted that the threshold in section 15(3) was not passed. He submitted that the only things that the plaintiff cannot do for herself are the bathroom, the changing of the bed, the heavy washing and the outside yards and the shopping, which he submitted would not take four and a half hours. I note again that the defendant served no evidence at all from either a rehabilitation expert or an occupational therapist. 38. I reject the defendant's submission. 39. Doing the best I can, I allow the following: 40. (i) From 28 July 2015 to 1 November 2018 (170 weeks) x 12 hours per week x $30 per hour (being an approximate average of the rate for gratuitous care during those periods) = $61,200; and 41. (ii) From 2 November 2018 to the date of trial (106 weeks) x 8 hours per week x $32 per hour (being an approximate average of the rate for gratuitous care during those periods) = $27,136. 42. I allow $88,336 under this head of damage. 43. Future commercial care 44. It is agreed between the parties that the cost of commercial care is $43.50 per hour. Mr Laverack says that the plaintiff currently requires 8.5 hours of commercial assistance. 45. The plaintiff gave evidence that she would avail herself of commercial assistance, in particular because her son Travis, who has been providing her with the great majority of the gratuitous assistance, is a single father of a young daughter. I accept that the plaintiff would like to relieve Travis of his duties. Mr Sleight submitted that the plaintiff required 2 hours per week of commercial assistance, but no more. He could not say why he settled on this prescription, in spite of Ms Laverack's opinion. As I have said, he did not challenge her expertise or call her for cross-examination. I reject Mr Sleight's submission. 46. In a supplementary report of 31 March 2020, Ms Laverack noted that the plaintiff's condition may deteriorate due to the nature of her injuries, and that as she ages, and if her condition deteriorates, she will require increased care. In her opinion, from the age of 65 years the plaintiff's care needs will increase from 8.5 hours per week to 13 hours per week. In particular, Ms Laverack expressed the view that the plaintiff's need for assistance with cleaning will increase from 2 hours per week to 3 hours per week, that her assistance with laundry tasks will increase from 1 hour per week to 1.5 hours per week, and that the assistance she requires to provide evening meals will increase from 4 hours per week to 7 hours per week. 47. I accept Ms Laverack's prescription for commercial care in the future at 8.5 hours per week which in my view is entirely reasonable. However, without specific medical evidence setting out the reasons why the plaintiff's "condition" will likely deteriorate, I am unable to accept her opinion that care will increase in the manner she has suggested in her supplementary report. 48. I therefore allow 8.5 hours per week x $43.50 = $370 per week x 796.6 = $294,742. 49. I was invited by Mr Sleight to discount this sum by 40% on the basis that the plaintiff will likely become frail in age, and would have required this assistance in any event: Avopiling Pty Limited v Bosevski [2018] NSWCA 146. Whilst I accept that the plaintiff, like every person who lives to an advanced age will become frail and likely need some assistance, in my opinion there has been nothing advanced in the defendant's case to allow me to make a discount of this magnitude. Indeed the overwhelming evidence in this case is that the 8.5 hours of future commercial assistance which the plaintiff requires has been occasioned only by the defendant's negligence. In the event, I will discount this sum by 15%, by way of vicissitudes, against the possibility that other events will intervene, and in particular on the basis that the plaintiff's PTSD may contribute to her need for assistance in the future: Avopiling at [153]. 50. I allow $294,742 x .85 = $250,531. 51. Fox v Wood 52. The parties at hearing were agreed on a sum of $44,815.00. That sum has no doubt changed, and I allowed the parties an opportunity to provide me with an up to date figure, which is $49,313.60. 53. I set out a table of damages below:- NON ECONOMIC LOSS $240,500.00 PAST OUT OF POCKET EXPENSES $58,347.19 FUTURE OUT OF POCKET EXPENSES $40,901.00 PAST ECONOMIC LOSS $136,758.00 LOSS OF PAST SUPERANNUATION $15,043.38 FUTURE ECONOMIC LOSS $99,626.80 LOSS OF FUTURE SUPERANNUATION $13,509.39 PAST DOMESTIC ASSISTANCE $88,336.00 FUTURE COMMERCIAL CARE $250,531 Fox v Wood $49,313.60 TOTAL $992,866.34 1. The final sum of damages was still to be determined. Damages have been assessed pursuant to the CLA, as in my opinion the employer has no liability. On 30 April 2021 the parties brought in Short Minutes of Order reflecting my findings with respect to the calculations. 2. The Recovery Proceedings 3. As I am satisfied that the employer was not negligent and that the plaintiff's damages have exceeded the payments made by the employer pursuant to the WCA, I will make the substantive order sought by the employer pursuant to section 151Z (1)(d) of the WCA. 4. A demand was apparently first made to the Mr Wakefield on behalf of of the employer for the recovery of the payments of workers' compensation on 4 July 2016. Proceedings were commenced by the worker against the occupier on 28 May 2018. In the exercise of my discretion, as by that date the occupier ought to have known of its liability, I allow interest from that later date: see Kwanchi Pty Limited v Kocsis (1996) 40 NSWLR 270. 5. As workers' compensation payments have continued since the hearing, I allowed the parties an opportunity to provide the court with up to date calculations. 6. I make the following orders in the Main Proceedings:- 2018/166247 1. Judgment for the plaintiff against the defendant in the amount of $992,866.36 2. The cross claim is dismissed. 3. The defendant is to pay the plaintiff's costs on the ordinary basis. 4. The cross claimant is to pay the cross defendant's costs of and incidental to the cross claim on the ordinary basis. 1. I make the following orders in the Recovery Proceedings:- 2018/357572 1. Judgment for the plaintiff against the defendant in the amount of $380,758.29. 2. I allow interest from 28 May 2018 in the amount of $12,814.44. 3. The defendant is to pay the plaintiff's costs on the ordinary basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2021