District Court New South Wales Medium Neutral Citation: Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50 Hearing dates: 6, 7, 8 and 15 December 2021 Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: See paragraph [297] for orders. Catchwords: TORTS – negligence – injury on building site – carpenter (not employed by defendants) was injured when responding to a call to assist other workers to lift and stow a 200kg metal clad door – alleged negligence of building contractor and sub-contractor – alleged contributory negligence – application of Pt 1A of Civil Liability Act 2002 – non-application of s 151Z of the Workers' Compensation Act 1987 (NSW) – determination of proportionate liability between defendants; DAMAGES – assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1A, s 5B, s 5C, s 5D, s 5E, s 5R, s 5S, s 16, s 35(1) District Court Act 1973 (NSW), s 44(1), s 51(2)(b) Evidence Act 1995, s 60 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Uniform Civil Prodecure Rules 2005 (NSW), r 32.23, r 31.27(1)(c), Sch 7 cl 3(1)(e) Workers' Compensation Act 1987 (NSW), s 151Z Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420 Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 569; [2005] HCA 26 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Amaca Pty Limited v State of New South Wales (2003) ALJR 1509 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker(1961) 106 CLR 340; [1961] HCA 48 HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 James Hardy & Co Pty Limited v Roberts [1999] 47 NSWLR 425 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jurox Pty Ltd v Fullick [2016] NSWCA 180 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Larson v Commissioner of Police [2004] NSWCA 126 Macquarie Pathology Services Pty Ltd v Sullivan, NSWCA, unreported (29 March 1995) Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Musa v Alzreaiawi [2021] NSWCA 12 Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 Paff v Speed (1961) 105 CLR 549 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Penrith City Council v Parks [2004] NSWCA 201 Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 Richards v Cornford [2010] NSWCA 99 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62 Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65 Category: Principal judgment Parties: Alan Monahan (Plaintiff) Bellevarde Constructions Pty Ltd (First defendant/second cross-claimant) L'Officina by Vincenzo Australia Pty Ltd (Second defendant/first cross-claimant) Allianz Australia Limited (Third defendant) Representation: Counsel: Mr R Goodridge (Plaintiff) Mr B Hull (First defendant/second cross-claimant) Mr R Gambi (Second and third defendants/first cross-claimant) Solicitors: Firths (Plaintiff) Holman Webb (First defendant/Second cross-claimant) Moray & Agnew (Second and third defendants/first cross-claimant) File Number(s): 2020/119363 Publication restriction: None Judgment Table of Contents Nature of case [1] – [2] Parties and relevant entities [3] – [4] Claims, defences and cross claims [5] – [15] Facts not in dispute [16] – [19] Disputed facts to be determined [20] Issues to be determined [21] Evidence overview and reliability of testimony [22] – [133] Documentary evidence [23] – [27] Evidence of the plaintiff [28] – [46] Evidence of Mr Rolfe [47] – [51] Evidence of Mr Chui [52] – [57] Evidence of Mr Lea [58] – [68] Evidence of Mr Petrie [69] – [75] Evidence of Mr Vincenzo Botte [76] – [93] Evidence of Mr Luciano Botte [94] – [109] Potential witnesses not called to give evidence [110] – [122] Expert ergonomic safety report of Mr Adams [123] – [132] Issue 1 – Findings on relevant factual matters [134] – [157] Issue 2 – The relevant risk of harm [158] – [159] Issue 3 – Duty of care, scope and content [160] – [163] Issue 4 – Whether the defendants were negligent [164] – [179] Issue 5 – Causation of harm [180] – [184] Issue 6 – Alleged contributory negligence [185] – [198] Issue 7 – Section 151Z(2) of the WC Act [199] – [215] Issue 8 – Cross-claims and proportionate liability [216] – [227] Issue 9 – Assessment of damages [228] – [292] Plaintiff's pre-injury circumstances [229] Plaintiff's most likely circumstances but for his injury [230] – [231] Injuries and treatment [232] Medical and allied reviews [233] – [234] Reliability of medical opinions [235] – [256] Disabilities that remain [257] – [258] Non-economic loss [260] Past economic loss [261] – [264] Past loss of employer funded superannuation benefits [265] Future economic loss [266] – [276] Future loss of employer funded superannuation benefits [277] Past domestic assistance [278] Future domestic assistance [279] – [283] Future treatment expenses [284] – [290] Past out-of-pocket expenses [291] Summary of damages assessment [292] Disposition [293] – [294] Monetary jurisdiction of the Court [295] Costs [296] Orders [297] Nature of case 1. On the morning of Saturday 17 November 2018, the plaintiff, Mr Alan Monahan, a tradesman carpenter, was working on a residential building site located at the corner of Esther and Raper Streets, Surry Hills NSW ("the site"). He responded to a call from another workman employed by a different employer to assist in the manual lifting, and moving of a heavy metal clad door weighing approximately 200kgs (known to all concerned as Door 115), to load it onto the back of a tabletop truck parked outside the premises. 2. In those events the plaintiff sustained a debilitating musculo-ligamentous straining injury to his lumbar spine. This case concerns the compensation consequences of that incident. He brings these proceedings claiming damages for alleged negligence against three defendants. The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) ("CL Act"). Parties and relevant entities 1. The relationship of the parties and the relevant entities is as follows: 1. The plaintiff is now aged 33 years. At the date of his injury, he was aged 30 years. At that time, he was employed by Taylor Carpentry Holdings Pty Limited ("Taylor") through a labour hire arrangement. Taylor is not a party to these proceedings. At the time of the incident the plaintiff was working in Sydney on a sponsored working visa. Due to his inability to continue working, he has been required to resume his former residence in the Republic of Ireland; 2. The first defendant, Bellevarde Constructions Pty Ltd ("Bellevarde"), a building contractor, was the head contractor in possession of the site and co-ordinated all building work on the site. Bellevarde had subcontracted Taylor to carry out certain carpentry services at the site. In November 2018, Taylor assigned the plaintiff, and another employee, to do carpentry work on the site; 3. The second defendant, L'Officina By Vincenzo Australia Pty Ltd, the trading name of ITC Eco Pty Ltd (which has been deregistered since 27 September 2019), had a subcontract arrangement with Bellevarde for the manufacture, supply, delivery, and installation, of specialised custom-made doors and windows for the site. L'Officina has acquired the assets and liabilities of that deregistered company. For convenience, in these reasons, that group of entities will be referred to as "L'Officina"; 4. The third defendant, Allianz Australia Limited ("Allianz") is the insurer for the former entity ITC Eco Pty Ltd, the deregistered company. 1. The second and third defendants have common representation in these proceedings pursuant to an agreement having the effect that, in the event L'Officina is found liable to the plaintiff for damages, as the responsible insurer, Allianz will meet that liability. Claims, defences and cross-claims 1. The plaintiff's claim and the defendants' defences are reviewed below. Plaintiff's statement of claim 1. The plaintiff's statement of claim filed on 21 April 2020 alleged negligence on the part of the defendants Bellevarde, L'Officina, and the deregistered company insured by Allianz: Exhibit "A", pp 1 – 11. Bellevarde's defence 1. Bellevarde's defence was filed on 13 July 2020. In that defence, Bellevarde denied the alleged negligence, and in the alternative, claimed that any damages awardable to the plaintiff should be reduced on account of alleged contributory negligence on the part of the plaintiff, and the alleged negligence of the plaintiff's employer pursuant to s 151Z of the Workers' Compensation Act 1987 (NSW) ("WC Act"): Exhibit "A", pp 16 – 20. L'Officina's defence 1. L'Officina's defence was filed on 16 September 2020. In that defence, L'Officina denied certain background factual matters, denied the alleged negligence, and alleged negligence on the part of the plaintiff's employer pursuant to s 151Z of the WC Act: Exhibit "A", pp 21 – 24. Allianz's defence 1. Allianz's defence was filed on 16 September 2020. In that defence, Allianz initially raised a procedural defence which is no longer relevant. It has since admitted it is the insurer for the now deregistered company ITC Eco Pty Ltd: Exhibit "A", pp 25 – 27. Defence as to the jurisdictional limit of the Court 1. The defences filed by both Bellevarde and L'Officina each included objections to the Court's jurisdiction being exercised for an amount that exceeds the $750,000 jurisdictional limit of the Court for such cases: s 51(2)(b) of the District Court Act 1973 (NSW). Those defences were expressed in different terms. Bellevarde claimed that defence applied as at the time of the commencement of the plaintiff's action: Exhibit "A", p 19. In contrast, L'Officina objected to "the entry of any judgment, verdict or award against it in excess of the jurisdictional limit" of the Court: Exhibit "Q", p 23. Cross-claims and defences to cross-claims 1. The first and second defendants have exchanged cross-claims, as follows. First cross-claim: L'Officina v Bellevarde and defence to first cross-claim 1. On 23 March 2021, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), L'Officina filed the first cross-claim against Bellevarde, ambiguously claiming indemnity "and/or" contribution in respect of any liability it may have to the plaintiff: Exhibit "A", pp 28 – 35. Bellevarde's defence to L'Officina's cross-claim 1. On 13 July 2021, Bellevarde filed its defence to L'Officina's first cross-claim and denied any such liability to L'Officina: Exhibit "A", pp 36 – 42. Second cross-claim: Bellevarde v L'Officina 1. On 13 July 2021, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), Bellevarde filed a second cross-claim against L'Officina, also ambiguously claiming indemnity "and/or" contribution in respect of any liability it may have to the plaintiff: Exhibit "A", pp 41 – 48. L'Officina's defence to Bellevarde's cross-claim 1. On 5 November 2021, L'Officina filed its defence to Bellevarde's second cross-claim and denied any liability to Bellevarde: Exhibit "A", pp 49 – 52. Facts not in dispute 1. At the time of his injury, the plaintiff was earning $1142.90 net per week as a tradesman carpenter in the employ of Taylor. The site at which the plaintiff was working at that time was undergoing substantial renovations for conversion into a private residence. 2. Immediately before his injury, the plaintiff had temporarily interrupted his carpentry work in order to respond to a request to help several other persons on site to manually lift Door 115, a large metal clad door weighing approximately 200kgs, onto the back of a tabletop truck without the assistance of any mechanical lifting devices. 3. During that lift the plaintiff suffered a painful musculo-ligamentous straining injury to his lumbar spine. As a direct consequence of that injury, he has incurred considerable treatment expenses in the total amount of $25,429.95. 4. At that time, the head contractor on the site, Bellevarde, employed Mr Sebastian Rolfe and Mr Adam Chui as tradesmen carpenters. Those persons also participated in the lifting and the loading of Door 115 which led to the plaintiff's injury. Disputed facts to be determined 1. The essential factual matters in dispute to be determined in these proceedings concern events as to who had requested the plaintiff to assist in the lifting of Door 115; for what purpose and for whose benefit was that task undertaken; who participated in the lifting of the door and loading it onto the truck that was parked outside the premises; and who owned that truck. Issues to be determined 1. My review of the pleadings, the evidence and the submissions of the parties indicates that the issues to be determined in the proceedings may be conveniently identified as follows: 1. Findings on disputed matters of fact and related matters as identified at paragraph [20] above. My findings on those matters appear between paragraphs [134] to [157] of these reasons; 2. Identification of the relevant risk of harm. My findings on this issue appear between paragraphs [158] to [159] of these reasons; 3. The scope and content of the duty of care owed to the plaintiff by the respective defendants: My findings on those matters appear between paragraphs [160] to [163] of these reasons; 4. Whether the defendants shortly described as Bellevarde and L'Officina were negligent. My findings on this issue appear between paragraphs [164] to [179] of these reasons; 5. Whether the plaintiff's injuries were caused by the negligence of the defendants. My findings on this issue appear between paragraphs [180] to [184] of these reasons; 6. Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent. My findings on this issue appear between paragraphs [185] to [198] of these reasons; 7. Whether, pursuant to s 151Z of the Workers' Compensation Act 1987 (NSW), any entitlement of the plaintiff to damages should be reduced on account of an alleged breach of duty of care on the part of Taylor, the plaintiff's employer, and if so, by what proportion. My findings on this issue appear between paragraphs [199] to [215] of these reasons; 8. The apportionment of liability as between the respective defendants. My findings on this issue appear between paragraphs [216] to [227] of these reasons; 9. The assessment of the plaintiff's entitlement to damages. My findings on those matters appear between paragraphs [228] to [292] of these reasons; Evidence overview and reliability of testimony 1. The exhibits tendered in the proceedings were in the series "A" to "J", and included a Court Book which incorporated exhibited material in common: Exhibit "A", pp 1 – 462. Those materials will be referred to in these reasons where it becomes relevant to do so. In the paragraphs that now follow, the documentary evidence on factual matters and the oral testimony is reviewed and summarised. Summary of documentary evidence of a factual nature 1. The categories of documentary evidence comprised: 1. The contractual document that governed the respective rights and responsibilities of L'Officina and Bellevarde; 2. Relevant photographs, plans and invoices; 3. Relevant email correspondence. Contractual documents, plans and drawings 1. L'Officina's original scope of works concerning the windows and doors for the site totalled over $300,000 including GST: Exhibit "A", p 172. The component representing Door 115 was $14,795 including GST: Exhibit "A", p 213. A condition of the works was that the supplier of the doors and windows retained property in the goods until full and final payments were received: Exhibit "A", p 175; Clause 8 of the Conditions of Sale. 2. The contractual document that governed the relationship between Bellevarde and L'Officina was dated 8 May 2018: Exhibit "A", pp 354 – 358. It was a term of the agreement between Bellevarde and L'Officina that Bellevarde's subcontractors (L'Officina) would provide all materials and handling equipment for the execution of their works, including for horizontal movement, transport, unloading and hoisting: Exhibit "A", p 358. Photographs, plans, invoices 1. A number of plans, photographs and invoices were tendered (Exhibit "A", pp 168 – 235). They are of limited significance to the issues to be decided in these proceedings. If anything, they simply provide some background perspective. Insofar as they have relevance, reference will be made to them. Email correspondence 1. After the plaintiff's injury, on 20 November 2018, L'Officina and Bellevarde commenced email exchanges over the state of the works and in respect of delayed completion: Exhibit "A", pp 201 – 206. Whilst those emails, and the interpretation of them occupied some time at the hearing, they have very limited bearing on the issues in the case. To the extent they contain material of relevance to the issues to be determined, they will be referenced in these reasons where it becomes appropriate to do so. Evidence of the plaintiff 1. The plaintiff was born in the Republic of Ireland. Following the completion of his secondary education at age 17 years, he went on to complete a three-and-a-half year apprenticeship as a carpenter. Between 2011 and 2013 he worked as a carpenter in Canada. On his return to the Republic of Ireland, between 2013 and 2017, due to a shortage of work in his trade, he undertook a variety of other jobs. In September 2017, he and his fiancée arrived in Australia on an employer-sponsored working holiday visa. 2. In October 2017, the plaintiff commenced full-time employment as a carpenter with Taylor Holdings Pty Ltd. He was in the employment of Taylor by an arrangement with a labour hire company, AustCorp Consulting Pty Ltd, to provide bespoke carpentry services when, on 17 November 2018, he sustained the injury which is the subject of these proceedings. 3. At the time of his injury, it was the plaintiff's intention that he and his fiancée remain working in Australia permanently, and for him to continue to work as a carpenter. He was working a 40-hour week, with occasional additional work on Saturdays. He had carried out some work on the site in question over the course of several months before he was injured. 4. On 17 November 2018, the plaintiff and his co-worker Mr Morgan, who was another employee of Taylor, were all on site independently carrying out the carpentry duties that had been assigned to them. They did not require supervision for that work. The plaintiff said that Bellevarde's employee, Mr Rolfe, had approached them and had said that he needed a hand to lift Door 115 onto the truck which was located at the premises. He understood the door to have a timber frame construction with some hollow sections and steel cladding. 5. The plaintiff said that he and Mr Morgan, who were located about 20 or 30 steps away when that request was made, co-operatively responded to that request, and helped with lifting Door 115 from its horizontal position resting against the brickwork of a wall where it had been resting on two timbers to keep it off the ground in a position about a metre and a half from a nearby entry door jamb. The plaintiff said that Mr Rolfe had initiated the process by saying that "we need to move this door": T30.23; T31.48; T54.47; T55.2. At that time no reason was given for moving the door. 6. The plaintiff said there was some brief discussion between the persons in the group who were to do the lifting. That discussion was to the effect that the door was first to be manoeuvred out of the doorway and then they would "worry about getting it onto the truck". The plaintiff said that it was not until he assisted with the initial lifting of the door that he became aware that it was a particularly heavy door. 7. The plaintiff described the positions adopted by the four participants in the initial lifting manoeuvre: T32.30; T57.30; T58.4. One person was located at either side of the door and one person was located either side in the middle of the door. He said the door was rotated and moved from its vertical position onto its side on the footpath outside. His recollection was that Mr Rolfe was directing or overseeing the task. 8. The plaintiff described the next phase of the lift as involving himself, Mr Morgan, and Mr Chui. It appears that Mr Chui was at one end of the elongated door, Mr Morgan was at the other end, and the plaintiff was in the middle. He said that Mr Rolfe and someone he assumed was from the door company went onto the back of the truck to receive the door. He said his recollection was that Mr Rolfe was standing on the back of the truck in a bent down position and was pulling on the door. Furthermore, his recollection was that Mr Rolfe had given the instructions to them for carrying out the lifting and shifting manoeuvre. 9. During those events, the two men whom the plaintiff believed to be from the second defendant door supply company, L'Officina, were on site and speaking in another language, possibly Italian, or in what seemed to the plaintiff to be a similar language. He said those persons had also participated in lifting the door onto the back of the truck: T44.40. 10. Whilst the door was being lifted onto the back of the truck by group effort in the manner described, the plaintiff said he instantly felt pain in his back. He said that after the door had been placed onto the truck, he attempted to go back to his normal duties but due to pain found this was too difficult for him. The plaintiff identified the truck shown in the photographs within Exhibit "A" as almost identical to the truck onto which they had carried the door. 11. In the plaintiff's answers to questions asked of him in cross-examination by Mr Hull on behalf of Bellevarde, it was apparent that those involved in lifting the door onto the truck were the plaintiff, Mr Morgan, Mr Rolfe and two other men. 12. In answer to a question asked by Mr Hull, the plaintiff agreed that the way the lift had been undertaken "wasn't the right way to do the job": T45.40. That answer based a defence argument that the plaintiff was contributorily negligent. For reasons that will be explained in detail in relation to Issue 6, the basis of that argument must be seen to be problematic and flawed. 13. In answer to questions asked in cross-examination by Mr Gambi on behalf of L'Officina and Allianz, the plaintiff said that on this particular job, a lot of the time there were shared tasks that were carried out, and that those on site would lend a hand to help each other out in addition to working independently on their own tasks. 14. The plaintiff said that when he started working for Taylor he had not been provided with any induction by that employer as to safe work methods, toolbox meetings, and safe materials handling methods. That said, there is no suggestion that he needed such instruction as he was a qualified and duly skilled tradesman. He said he had been provided with a general site induction by Bellevarde, and said this was essentially a box-ticking exercise as a precursor to commencing work. 15. The plaintiff said that Taylor had not provided him with instructions to the effect that if, whilst on site, he was asked to do work that was not carpentry work, he should speak to someone from Taylor about such a request. The implication of the question was that such an approach to Taylor should have been made before complying with any such request. He explained that was not the way things worked on building sites, and that it was common for other trades to pitch in and lend a hand to help when necessary. 16. The plaintiff said that in his time working at the site, he had not ever seen any mechanical lifting devices such as a crane, hoist, winch, tailgate loader, or any similar lifting devices. 17. As a result of the plaintiff's injury, following several unsuccessful attempts to return to his work between December 2018 and January 2019 due to pain, he found that he was unable to continue fulfilling the requirements of his working visa. He was therefore required to return to the Republic of Ireland. He did so on 3 July 2019, thereby interrupting the rehabilitation treatment he had been receiving here, and he has remained there ever since. Because of the Government directive that he return to Ireland his relationship with his fiancée terminated as she wanted to remain in Australia. 18. The plaintiff's evidence concerning the subsequent events relating to treatment and assessments will be taken up in that part of these reasons that deal with the assessment of the plaintiff's damages claim. 19. I found the plaintiff to be an impressive, credible, and reliable witness. He gave his evidence carefully, in a considered and measured manner, with due reserve. He described the effects of his injuries with considerable stoicism. He avoided self-serving speculation or embellishment. I accept his evidence in its entirety. Evidence of Mr Sebastian Rolfe 1. Mr Sebastian Rolfe presently works as a self-employed builder. At the time of the plaintiff's injury he was employed by Bellevarde to work on the site as a carpenter. His memory of the events had faded somewhat due to the passage of time. 2. Mr Rolfe recalled there was a need to move and lift the door in question onto the back of a truck but he was not sure as to why this was required. He could not recall telling the plaintiff to assist to move the door on the day in question, but he conceded it was possible he may have done so. His understanding, albeit incorrect, was that the door needed to be taken back to the manufacturer, L'Officina, in order that it be worked on or altered, but he was uncertain as to the details 3. Mr Rolfe said that there were a few people on site at the time, namely Mr Chui, Mr Morgan and the plaintiff who assisted him to move the door. With the aid of copies of photographs within Exhibit "A' to refresh his memory, he recalled that the door was on site wrapped in a blue protective blanket and that it was lifted into the tabletop truck whilst still wrapped in that blanket. 4. Mr Rolfe said he recalled there were two other men who also came onto the site who were also involved in the lifting operation, one being the driver of the truck, later identified as Mr Dimitri Espimaris, and the other was, according to his understanding, also from L'Officina. His understanding was that they were there to take the door away for reasons not entirely clear to him. He said the driver of the truck and that other man assisted in the lifting and loading of the door onto the truck. He did not see if the truck had driven away with the door on its tray. 5. The evidence of Mr Rolfe, whilst limited on some matters of detail, does not serve to materially contradict the plaintiff's account of the events in question. Some of his evidence was expressed as being based on assumptions. Evidence of Mr Adam Chui 1. Mr Adam Chui is a tradesman carpenter who was employed by Bellevarde at the time of the lifting incident. He is still in that employment. He also took part in the lifting operation on the day in question. 2. Mr Chui did not know who had initially asked him to assist with the lifting of the door. He said he had just seen his colleagues moving the door and he decided to help because the task of moving the door, from its position leaning against the wall near the front of the site office and onto the truck, looked awkward. He described the door as being very heavy. He identified those participating in the lift to be himself, Mr Rolfe, Mr Morgan, the plaintiff, and two other men wearing high visibility garments. He believed the latter two men came from the second defendant company. 3. Mr Chui had assumed those men were on site to pick up the door and take it away. He could not recall who was the organiser of the initial part of the lifting operation. However, he agreed with the proposition that Mr Rolfe was the person co-ordinating the lifting of the door onto the back of the flatbed truck and he was following Mr Rolfe's instructions on how to get the door onto the truck: T85.20 – T85.35. He identified the photograph of the truck shown in Exhibit "A" as showing a truck that was similar to the one onto which they had loaded the door in question. He agreed it was a type of flatbed truck commonly seen in the streets of Sydney and commonly seen either delivering goods to building sites or taking material away from such sites. 4. Mr Chui did not know exactly why the door was leaving the site on the day in question. He understood it was something to do with the need to fit the door into position with pivots. He estimated that he had helped to move the door from its point of rest to its position on the truck over about 5 metres. 5. Mr Chui could not recall when the door, and others like it, had been delivered to the site. He could not recall when the door was installed into its final position. 6. To the extent of his recollection, I considered Mr Chui to be a credible and reliable witness. Evidence of Mr Ben Lea 1. Mr Ben Lea is employed by Bellevarde as a project manager. At the time of the plaintiff's injury he was the site manager responsible for co-ordinating the work of all Bellevarde employees and other trades and sub-contractors on the site. He identified another Bellevarde employee, Mr Julian Petrie as the site administrator for that particular job. 2. Mr Lea described a history of frustration with the delayed work by L'Officina. He referred to a meeting between the project architect, and principals from Bellevarde and L'Officina, ending in a resolution which enabled the parties to move forward in their dealings with each other. 3. Mr Lea identified some relevant emails that were exchanged between the first and second defendants concerning the door in question and aspects of the timetabling and sequence of the works, including why the door in question could not be installed as had originally been planned. This was because a strengthened concrete base plate or slab was required to be installed to take the pivoted weight of the door. He said that the required reinforced concrete base plate correction was installed on either the Monday or the Tuesday that followed the plaintiff's accident. 4. Mr Lea described the doors as extremely expensive: $14,430 plus GST. He also described the site as not overly large, without areas for storage of large components. He identified the driver shown in the copy photograph in Exhibit "A" as an employee of the second defendant. He said he was familiar with the driver, and Mr Vincenzo Botte, and the truck shown in the photograph, from the progress of other projects before and after the incident in question. 5. Mr Lea said that Bellevarde had no reason to remove the door from the site. He said that the removal of such a significant item, especially having regard to its cost, required his approval, including by telephone, if he was not on site, and that did not happen. He said that Bellevarde did not have storage facilities for a component such as the door in question, and did not have a truck for moving it nor did it have the knowhow as to how the door should be treated. He said that even after it had been delivered onto the site, it remained the property of L'Officina until it was physically installed. 6. Mr Lea said that if he was not on site then Mr Petrie would have been the acting site manager. He described a history of considerable frustration on the part of Bellevarde as to the project being delayed by slow progress and the timing of L'Officina's work. 7. Mr Lea believed that the door in question had been delivered on site on Friday 16 November 2018 by the L'Officina driver he had recognised from the photograph appearing in the Court Book. There is no dispute that the delivery driver was Mr Espimaris. Mr Lea inferred that Door 115 had been removed after he finished his work on the site on the Friday, or subsequently, in his absence. He said that on his return to the site on the following Monday and Tuesday, the door was not on site. 8. Mr Lea stated that on Friday 16 November 2018, L'Officina had installers on site. Relevant to the circumstances of the plaintiff's accident, he said that if they, meaning L'Officina's installers, did not have "enough bodies to lift 200kgs" then other people (on site) were asked to assist. 9. Mr Lea confirmed that he had no recollection of any discussion with Mr Petrie about a need for the door in question to be removed. He confirmed that he had not given any authorisation for that to occur, and he remained unaware as to why the door in question would have been taken away from the site if that is what occurred. 10. In my view, the cross-examination of Mr Lea on the content of the email exchanges in evidence was a distraction to the central issue of the factual circumstances of the incident in which the plaintiff became injured. Relevant aspects of those emails will be considered in due course in the appropriate context. 11. I considered Mr Lea to be a credible and reliable witness. There was nothing that arose from within his evidence which raised doubts about its content. Evidence of Mr Julian Petrie 1. Mr Julian Petrie is presently employed by Bellevarde as a site manager. At the time of the plaintiff's injury he was employed by Bellevarde as the site administrator for the works at the Esther Street premises from about August 2018. 2. Mr Petrie was present on that site on Friday 16 November 2018 when the door in question was delivered by L'Officina's truck. He recalled the door being brought into the premises from the truck and then stored in the hallway to await installation that was planned but which did not proceed as planned. 3. Mr Petrie identified and explained the context of some email exchanges that subsequently took place between Bellevarde and L'Officina: T117 – T119. He recalled there was an issue with the adequacy of the concrete base slab that was to support the door and that there was an associated need for Bellevarde to undertake some remedial work to replace that concrete slab. 4. Mr Petrie said that he did not see the door in question being removed from the premises on the following Saturday, 17 November. He said that he could not recall asking anyone to remove the door in question from the site. He was of the opinion that if anyone was to have removed the door it would have been the party that had ownership of it, namely L'Officina. He added the speculative suggestion that an alignment issue or a patina adjustment could be a reason for removing the door from the site. He stated that in Sydney, Bellevarde did not have a tabletop truck of the kind identified in the photographs within Exhibit "A"'. 5. Mr Petrie stated that he could not say whether any door had been taken away by L'Officina and then returned to the site. He said that he was aware that L'Officina installers were on site in November 2018, but he could not recall the details with certainty. He explained the context was that there was a degree of frustration within Bellevarde concerning L'Officina's supply and installation program, and an apparent attempt by L'Officina to deflect responsibility for the delay so caused: T122. This was reflected in the disputatious tone of an email from L'Officina's employee Mr Leonardo Malucci, who sent an email to Mr Petrie on 20 November 2018, in which L'Officina sought to deflect responsibilities for the delayed works: Exhibit "A", p 201. 6. Mr Petrie declined to speculate on the possibility that someone other than L'Officina could have removed the door in question. He stated that Bellevarde would not have been able to remove the door. He recalled the door being on the site and installed at some point on or after 19 November 2018. He confirmed that over the course of the works, L'Officina had various employees on site at various times, including up to 20 November 2018. 7. No reason emerged to raise doubt about the credibility or the reliability of the evidence of Mr Petrie. Evidence of Mr Vincenzo Botte 1. Mr Vincenzo Botte presented as a confident witness but he had no personal knowledge of the circumstances surrounding the plaintiff's injury. 2. He is the designer and creator of the special patina finishes for which the entity L'Officina by Vincenzo is known. He had crafted the specialised finish on Door 115. In his evidence he described it as steel framed, with internal plywood components and encased in zinc sheeting that was polished and then patinated in an antique blackened finish. 3. His estimate of the weight of the door was about 150kgs, which was significantly less than the estimate of 200kgs, more reliably identified in an email from L'Officina's employee, Mr Leonardo Malucci, who described it as weighing around 200kgs: Exhibit "A", p 201. He stated that once a door of that kind was fabricated, it could not be adjusted for size and then rectified with a restored finish. Instead, it would have to have been remade by a process that would take two men working for up to a month. 4. His evidence, whilst explanatory of some matters of background, was of limited relevance to the substantive factual issues to be determined in this case. This is so especially as he was not present at the time the plaintiff was injured, and in view of his concession that, contrary to his understanding, it was possible that the door was moved as a result of decisions made on site by persons working for L'Officina. 5. He acknowledged that there were delays on the part of L'Officina in fulfilling its work schedule for the delivery and installation of its fabricated components, including Door 115. The delays were the subject of some tensions between Bellevarde and L'Officina, as was described in the oral evidence and in the email correspondence that had passed between those parties. 6. That correspondence, which related to disputed contentions as to the cause or fault for delay in the progress of the works, has been incorporated into Exhibit "A". In my view that correspondence is peripheral to the substantive issues in this case, and only requires brief reference in a review of the documentary evidence. 7. This so where the substantive factual questions are: who was on the site on the day the plaintiff was injured; in whose interests were those persons there; and what were they doing, insofar as can be reasonably inferred from the evidence. 8. He explained that it was his understanding the delay in installing the door in question, and by inference, the reason why the door was being moved and manhandled on site in the circumstances in which the plaintiff came to be injured, was that the site conditions, namely the concrete base for pivoting the door was unsuitable, and it had to be reconstructed by Bellevarde. He confirmed that the final installation of the door took place many days after it was first intended to be installed: T154.50. 9. He identified the photograph appearing at page 232 of Exhibit "A" as an image of his truck, and he also identified his driver as seen in that photograph, Mr Dimitri, also known as Jimmy Espimaris. He confirmed that the photograph was taken in the loading dock of his workshop. 10. He refuted the suggestion that the door in question had been returned to his workshop for any purpose once it had been delivered to Bellevarde's Esther Street site on or about 16 November 2018. He said that he was at his workshop every day. He used this as the basis for saying that, somewhat speculatively in my view, he would have known if such a return had taken place as it was a major undertaking requiring the involvement of multiple persons, probably six people, including the driver: T147.47; T150.30. He also refuted the suggestion that his driver would have worked on a Saturday, in the context that the plaintiff was injured on a Saturday. 11. Those refutations must be read in light of a concession he made in cross-examination to the effect that it was possible that the door in question could have been moved without his knowledge: T156.5. 12. He stated that he had not personally visited the site for measuring up and had relied upon his former employee, Mr Leonardo Malucci, to make site visits to take measurements, and following manufacture, the door was to be installed by a L'Officina subcontractor, identified as Mr Pasquale Acuri and the installation was to be overseen by Mr Malucci, an author of some of the email exchanges: T149.30. He said that Mr Malucci had returned to Italy several years ago, where he is thought to continue to reside: T149.36 – T149.43. 13. The absence of any evidence from Mr Malucci, who was undoubtedly a relevant actor, occupied significant discussion in the submissions of the parties. This will be revisited at a later point in these reasons. 14. When shown timesheets for Friday 16 November 2018, comprising page 233 of Exhibit "A", he identified his subcontractor installer Mr Pasquale Acuri, and Mr Acuri's employee labourers Piero and Mateo. He identified the person shown in the photograph at page 209 of Exhibit "A" as Keith, another L'Officina installer. Keith's involvement was not the subject of elaboration in the evidence. 15. Significantly, he confirmed that if an occasion had arisen for Door 115 to be moved from the site, it would have been Mr Malucci who would have made that decision. He also acknowledged the practical circumstance that if the door had to be moved in circumstances where there were insufficient L'Officina employees on hand to do the lifting, it would not be unusual for other persons on site to be called upon to lend a hand to assist to load such a heavy item onto the truck: T150.5 – T150.15. 16. Understandably, he confirmed that if it was up to him, he would not let other parties move the door, even if it was fully wrapped, out of concern over possible damage to such an expensive item: T150.35; T155.20 – T155.47. 17. In the course of Mr Vincenzo Botte's evidence, a call was made for production of relevant documents and records that could have relevantly thrown light on the activities of L'Officina on the site surrounding the relevant time. Significantly, without adequate explanation, the documents were never produced: T146 – T147; T148; T159. 18. Mr Vincenzo Botte's evidence had little if any relevance to the determination of the factual circumstances in which the plaintiff was injured. Whilst he made confident denials concerning any suggested involvement of L'Officina in removing Door 115, in my view, such denials must be read down by reference to his evidence that indicated he had little if any direct knowledge of the circumstances that prevailed on the day in question. It was plain that aspect of his evidence was based on matters he had assumed to be the fact. Evidence of Mr Luciano Botte 1. Mr Luciano Botte, the brother of Mr Vincenzo Botte, is the operations manager for L'Officina by Vincenzo Pty Ltd. He also gave his evidence in a confident manner to the effect of refuting factual elements, on which the plaintiff's case was based. However, like his brother Vincenzo, he had no personal knowledge of the circumstances of the plaintiff's injury. 2. In November 2018, he was also the operations manager for several related entities: T161.20. He described the dynamics of the operation to be that his brother Vincenzo was the creative member of the team, and he was the one who took care of the operations side of the business. 3. He said he spent roughly 50 per cent of his time in the company's workshops, of which there were two, one being for fabrication and the other for painting and finishing. The balance of his time was spent on various job sites. At the time of the plaintiff's injury, L'Officina had five such sites in progress: T162.21 – T162.40. 4. In relation to the site operations for Door 115, he said that it was his understanding that the door had been successfully delivered and safely stored on site. His evidence as to the entity responsible for the door from the time of delivery differed from the evidence given by his brother. He said that L'Officina was not responsible for the door any further "until it gets installed, I guess" (T168.7), but he added that if the door had to be moved on site and he was there, he would have taken responsibility for that: T168.18. 5. He identified his understanding of the extent of L'Officina's on site staff on 17 November 2018 as being four men, namely Mr Espimaris who was L'Officina's truck driver, and L'Officina's installation contractor, Mr Acuri, and Mr Acuri's two employees, Mateo and Piero, the latter three being persons who spoke Italian. 6. On several occasions in his evidence, properly, he made it clear that aspects of his evidence were based on assumptions as he was not on site for the either the delivery of Door 115, nor for any subsequent attempts at installation, or any activity that involved subsequent movement of that door, or its final delayed installation. 7. He was cross-examined on the terms of the contract for works between L'Officina and Bellevarde, and stated that he had only read part of the contract (T168.36) and said he knew L'Officina's contractual exclusions included no lifting, but he agreed that his company was responsible for installation: T168.42 – T169.17. 8. Although he disagreed that Door 115 weighed 200kgs, and proffered the alternative estimate of about 160kgs, he said that at least four men would have been required to handle the door for an attempted installation on the Friday: T169.27. Based on the content of the email from Mr Malucci (at Exhibit "A", p 201), I consider his estimate to be a significant underestimate. He understood from the paperwork that the four men from his company were Mr Espimaris, Pasquale, Mateo and Piero: T169.32 – T169.42. The parties conceded the door weighed about 200kgs: Exhibit "F". 9. His understanding, plainly based on assumption, was that Door 115 was delivered on Friday 16 November, but not installed because the supporting structure was not adequate, and it was moved from where it had been delivered: T169.49. He was cross-examined on the interpretation of ambiguous aspects of the email correspondence between the parties. His interpretation of the emails was not relevant to the issues to be determined in this case: T171 – T173. 10. When cross-examined on the various locations of Door 115 after it was delivered on site, in the context that he was not present at relevant times, he was initially reluctant to make concessions to the effect that his evidence was based on assumptions, arguing that his interpretation was logical: T173.50 – T174.8; T184.30 – T185.9. 11. He said that to his knowledge, following the delivery of Door 115 to the site, the door never returned to either of L'Officina's two workshops. He said that as operations manager, he would have expected to have been informed if this had in fact occurred. This evidence does not exclude the possibility that Door 115 could have been removed from the site and stored elsewhere, including on the truck. 12. When cross-examined on the counterproposition, he agreed that if Door 115 needed to be picked up from the site, this would have involved L'Officina's truck: T174.16. He also said "my guys never ask anybody for help. They always ask for the builder to provide help if required…": T174.38. 13. He agreed that in November 2018 it was a busy period for his company, and they were operating at their workshops and on their various installation sites at the same time, and they were under pressure from the architect and Bellevarde in relation to their work at this particular site: T178.27. 14. He was cross-examined about materials handling, including heavy doors, on building sites: T180.10. He agreed that the doors the subject of his contract were very heavy doors: T181.25. He disagreed with the proposition that the manual handling of such heavy doors was a difficult task, saying that if one knew how to do it, as he did, it could be done "quite easily": T182.4. The implication which follows from that evidence is that specialised knowledge or experience would be required to safely undertake the task. 15. He gave evidence of the delivery of a different door, namely Door 114 to the site on 30 November 2018. The door was the subject of the photograph comprising Exhibit "D". The operation involving the handling of that door required five or six men, including himself, Keith, another installation contractor, the driver Mr Espimaris, another man, Andrea (T165.10 – T165.40), and possibly two or three others: T167.9. 16. In my assessment, Mr Luciano Botte's evidence had little if any relevance to the determination of the factual circumstances in which the plaintiff was injured. Potential witnesses not called to give evidence 1. A number of persons were named in the evidence but they were not called as witnesses, namely, Mr Leonardo Malucci, Mr Dimitri (Jimmy) Espimaris, and Mr Pasquale Acuri. Other persons were also identified according to job classifications, but without surnames, namely, Piero and Mateo, who were Mr Acuri's installation employees for the L'Officina work, and a man named Keith, another of L'Officina's installers. 2. The plaintiff seeks inferences be drawn against L'Officina concerning the absence of evidence from those persons in circumstances where there is no evidence as to any inquiries that might explain the absence of any evidence from them: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. 3. This raises a question as to what evidence those persons might have been able to give concerning relevant matters of fact. 4. Keith was not present on site at the time of the plaintiff's injury. It appears that he took part in the final installation of Door 115 some days later. It therefore appears that unlike the other persons named above, he could not have given evidence on any matter of relevance to the proceedings. 5. Mr Rolfe identified two men (apart from himself, the plaintiff, Mr Chui and Mr Morgan) who were also involved in moving the door, namely the truck driver and someone else. He assumed these additional persons were from L'Officina (T68.45 – T69.28), although he could not identify them by name. In that regard, he had assumed the driver of the truck was employed by the manufacturer of the door: T75.34, 6. Mr Malucci was an employee of L'Officina. He and Mr Petrie, who was employed by Bellevarde, had exchanged contentious emails about problematic aspects of the works. I infer from the terms of Mr Malucci's email to Mr Petrie, that Mr Malucci was on site on the day in question. This is because his email employed the expression "we", which in the context, I interpret as referring to himself and to at least another L'Officina employee being on the site. 7. Mr Vincenzo Botte confirmed that if Door 115 needed to be moved, Mr Malucci would have been involved in that decision, and since the door would at that time have remained the property of L'Officina and he was on site, it is highly likely that he would have been involved in the process of moving the door, including loading it onto the tabletop truck. Mr Botte confirmed that Mr Malucci had returned to Italy some time ago but that does not necessarily mean his evidence was not available or unobtainable: T149 – T150. 8. No evidence was given as to what, if any, inquiries had been made with regard to factual evidence he was able to give and as to his availability to give evidence, including by means of AVL in the same manner as the plaintiff gave his evidence despite the geographic distance and time zone differences. 9. In those circumstances I infer that Mr Malucci, if called would not have assisted L'Officina's case, including the denial that L'Officina's servants or agents and its truck were involved in the lifting of Door 115 in the circumstances in which the plaintiff was injured. 10. The evidence also establishes that Mr Pasquale Acuri was on site at the time of the plaintiff's injury. The timesheets for Mr Acuri's attendances, and those of his employees, Piero and Mateo, were in evidence: Exhibit "A", pp 323 – 324. The timesheet for 17 November 2018 shows that Mr Acuri was on the site for 5 hours between 7.00am until 12 noon on that day. 11. The previous day, Mr Acuri, Piero and Mateo were on site from 7.00am until 4.00pm. I infer that Door 115 was delivered somewhere in that time range on that day, and that at some stage thereafter, Mr Acuri determined that the door could not be installed due to the inadequate support that would be provided by the concrete slab at the intended point of installation. 12. No evidence was called to describe what, if any, attempts were pursued on behalf of L'Officina to obtain evidence from Mr Malucci or Mr Acuri and his employees, Piero and Mateo. 13. The plaintiff seeks adverse inferences in relation to L'Officina's failure to call evidence from Mr Malucci and Mr Acuri, and the failure to call evidence to explain why those persons were not called to give evidence. The plaintiff also seeks a finding concerning the absence of any evidence as to any inquiries made of Mr Espimaris concerning the events in question. I find the plaintiff's submissions on those matters to be well-founded and I accept them. Those persons would ordinarily have been called in a dispute of this nature to elucidate the fact, and the absence of those witnesses, or any inquiries as to their whereabouts, remains unexplained: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, at [63]; Musa v Alzreaiawi [2021] NSWCA 12, at [78]-[79]. Expert ergonomic safety report of Mr Adams 1. The plaintiff relied upon an expert opinion in the form of an ergonomic safety analysis report dated 31 August 2020 prepared at the request of his solicitor by Mr Neil Adams. His report included compendious annexures: Exhibit "A", pp 112 – 167. 2. Initially, on behalf of L'Officina, a series of objections were taken to various parts of that report: MFI "2". In essence, those objections raised questions of hearsay and unproven assumptions. Ultimately, those objections were resolved on the basis that if the evidence does not sufficiently coincide with the assumptions made by Mr Adams, this would undermine the utility and the value of his opinion: T187.34: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. 3. In effect, Mr Adams was of the opinion it was foreseeable that a heavy manual lifting operation of the kind in which the plaintiff was called upon to assist, carried with it the likelihood or risk of musculo-skeletal injury such that the implementation of preventive safety precautions were warranted. 4. Mr Adams described the lifting and loading task in which the plaintiff was engaged as physically demanding. He did not see or inspect the site for the purpose of his report. He has not examined the door. He relied upon the plaintiff's descriptions of the incident as was provided by him in a telephone interview, against the background of the material with which he had been briefed by the solicitor for the plaintiff. 5. Mr Adams approached his consideration and analysis from the perspective of ergonomics and safety. His understanding was that Door 115 could not be fitted to the intended place of its installation because the intended installation site had not been appropriately prepared. He understood that the intention was to remove the door from the site by truck, hence the lifting operation in which the plaintiff became involved. 6. Mr Adams obtained the following information from the plaintiff: "2.1.6 Mr Monahan and Morgan accompanied Sebastian to the ground-floor room in which the door that had to be removed from the site (the door) was leaning in an upright orientation against one of the interior walls. Also present in that room at that time were at least three and possibly four other men. One of those men was another contractor who Mr Monahan knew as Adam (Mr Monahan does not know who employed Adam). The other men were apparently employees of the supplier. 2.1.7 With Sebastian overseeing the process but not participating physically, five men (including Mr Monahan) worked together to firstly manoeuvre the door into a position whereby its longer sides were horizontal and parallel to the floor and its shorter sides were vertical and parallel to the walls. Those men then lifted it in that orientation and carried it out into the street, where a small truck with an open fiat-bed load tray was parked. The door, still in that orientation, was then lowered to the footpath beside that truck, with some of the men (again including Mr Monahan) continuing to hold it so that it remained balanced, with one of its longer sides only in contact with the footpath. Two of the employees of the supplier then climbed onto the truck. At this time, Mr Monahan was standing adjacent to the door, approximately in a central position along its length, and with the door between him and the truck. Two other men (one of whom was Morgan while the other was Adam) were also standing on the footpath close to, and at opposite ends of, the door. 2.1.8 There was very little, if any, discussion between the workers, and no instructions were issued nor advice verbalised concerning the next stage of the process (either by Sebastian or anyone else). Nevertheless, Mr Monahan understood that he was expected to lift from the centre of the door as Morgan and Adam lifted from each end, such that between them they would raise the door sufficiently high to allow it to be grasped by the two men who had climbed onto the truck, and then presumably slid by those men into a suitable orientation and position on the load tray and secured for transportation purposes. 2.1.9 Accordingly, Mr Monahan bent and reached down towards the side of the door that was resting on the footpath with both of his hands, in order that he might grasp and lift it from its lower longer side. Either Adam or Morgan, and perhaps both of them, lifted the door sufficiently to allow Mr Monahan to push both of his hands forwards and under that lower edge. When all the three lifters on the footpath (ie. Mr Monahan, Morgan, and Adam) were ready, Mr Monahan heard Sebastian co-ordinate the lift by saying words to the effect of "One, two, three When he heard the word "three ", Mr Monahan began to exert a very high level of two-handed lifting force on the door. As a result of that force in combination with the lifting forces that were clearly being exerted by Morgan and Adam respectively, the door began to move upwards in the intended direction. Mr Monahan remembers that he had lifted his share of the load to approximately level with his waist, and was also extending his arms slightly out in front of his body in order to move the door nearer to the truck (and therefore further from his body), when he suddenly felt a sensation of strong pain in his lower back. At approximately the same time, the door was also grasped by the men on the truck. Mr Monahan continued to contribute some lifting force, despite his pain, until it was no longer necessary for him to do so, because the door was effectively on the truck and could be lowered and slid into its travelling position by the supplier's employees. 2.1.10 After the employees of the supplier had positioned and secured the door to their satisfaction, they left the site. Mr Monahan had a conversation with Morgan, during which he indicated that he had hurt his back. Mr Monahan then rested for some time. His initial discomfort seemed to resolve somewhat, which led him to infer that any injury he might have sustained was relatively minor and would resolve fully in due course. He therefore resumed working. He continued to work over the ensuing days and weeks, despite not being free of pain in his back, and on 30 November 2018 he began seeing a chiropractor who he hoped would provide him with relief from that discomfort. It was also at about that time that he reported the incident to Mr Taylor." [Exhibit "A", pp 115 – 116] 1. Mr Adams noted critically (at page 117, paragraph 2.2.5 of his report), that the plaintiff had not been given any information, training, or instruction on safe manual handling in connection with the task at hand. There was no evidence of any process of hazard evaluation having taken place prior to the door being lifted. 2. Mr Adams stated that high levels of sustained force were required in the initial lift, then the carrying, and then the final lifting movements to stow the door onto the truck. 3. Mr Adams identified that activity (at page 119, paragraph 2.1.6), as involving a very substantial risk of injury due to the combination of the adverse physical postures required in the task described, such as low bending, and reaching horizontally, and the need to bear the substantial weight of the door in that context. In his view, that combination would unacceptably place injurious musculo-skeletal stress on those participating in that task. 4. Mr Adams was of the opinion that the persons planning the task of manual handling of the door ought to have been aware of such risk of injury and should have taken basic preventive measures, such as providing mechanical lifting and moving equipment, or absent the availability of such equipment, then provide appropriate manual handling training, instruction and supervision as a precautionary safety measure. At this point it is sufficient to record my view that the cited opinions of Mr Adams as summarised above accord with common sense. 5. I now turn to a consideration of the issues for determination as identified at paragraph [22] above. Issue 1 – Findings on relevant factual matters 1. As to the factual circumstances leading to the plaintiff's injury, I accept his account of the sequence of events which led to him sustain a straining injury to his back. That account was neither inherently improbable, nor was it unlikely, and significantly, it was not materially or relevantly contradicted. 2. The background circumstances were that earlier, on 16 November 2018, L'Officina delivered Door 115 to the premises. The installation of the door could not be completed at the time L'Officina's installers attended at the site. The door could not be installed because the concrete base required for pivoting the door was structurally inadequate. 3. On 17 November 2018 a decision was made to move Door 115. It weighed approximately 200kgs and was considerably bulky. I consider it unlikely that on that day, Mr Acuri would have attended the site alone, as the sole installer on behalf of L'Officina. 4. The circumstances suggest that his employees, Piero and Mateo were also on the site, notwithstanding that their names had not been entered on Mr Acuri's timesheets for that day. In my view the timesheets do not represent an attendance diary as they are not signed. Instead, I infer from the form and content that they were simply prepared for use as a basis for Mr Acuri billing L'Officina for installation work on the site. That explanation is consistent with the fact that no installation was carried out by Mr Acuri's workers on that date. 5. I find that when the conclusion was reached that Door 115 could not be installed, the L'Officina representatives on site at the time were Mr Malucci, Mr Espimaris, Mr Acuri and most probably, his employed installers. 6. I find it was highly likely that within that array of persons, someone on behalf of L'Officina, probably Mr Acuri, would have advised a Bellevarde employee that Door 115 could not be installed at that time, as had been planned. In those events someone made a decision to move the door. 7. The fact that the door could not be installed, the fact that storage space for materials was limited on the site, and the fact that remedial work was required on the concrete slab before the door could be installed, taken together, suggests that the door had to be moved. This was for the benefit of both Bellevarde and L'Officina, particularly to ensure the door was kept safe from damage whilst it remained on site and uninstalled. In the circumstances which prevailed, there was no option but to achieve this by manual labour, absent the availability of any suitable lifting devices. 8. At that time, it became apparent that Bellevarde was required to undertake remedial work to overcome the structural deficiency so that the door could be installed. In those events, someone, it matters not who, decided that Door 115 had to be moved from its static position where it had been left leaning against a nearby brick wall. Bellevarde's employees, namely Mr Rolfe and Mr Chui then participated in that process. I accept that it was Mr Rolfe who called upon the plaintiff to assist. 9. Given the evidence of Mr Luciano Botte to the effect that up to six people would be needed to move a heavy door of that general type, albeit a slightly larger door, absent the availability of lifting aids, there would appear to be no other reason for Bellevarde's employee, Mr Rolfe, to ask the plaintiff and the other persons on site, to lend a hand to assist to move the door. 10. When Mr Rolfe asked for the assistance of the plaintiff and Mr Morgan in moving the door by saying "we" need to move the door. He must have known it was very heavy: T30.23. In my view, the plaintiff's recollection that Mr Rolfe was overseeing the process is most likely correct: T56.39; T63.25. I prefer the evidence of the plaintiff on that matter of detail in comparison to Mr Rolfe's more limited recollection which was affected by the intervening passage of time. Given the overall circumstances, that matter of detail is something the plaintiff would most likely recall. 11. In those events, Mr Rolfe was the Bellevarde employee who was giving instructions and co-ordinating the task of moving the door in consultation with the servants or agents of L'Officina who were also on site. 12. It is apparent from Mr Rolfe's evidence that the task had not been adequately planned from a safety perspective. He saw the priorities as being first, getting the door out of the premises, and then to later worry about getting it onto the truck. In my view, the exercise was undertaken haphazardly in haste, without due prior attention to planning and implementation, to consider the need for safety precautions for the participants, including himself. 13. A possible reason for the door being removed from its resting point within the premises occupied some focussed attention during the course of the hearing. This included some incorrect speculation that it might have required modification before it could be fitted. 14. In my view, it is not necessary to resolve that peripheral question by an affirmative finding that the door needed to be modified. It is sufficient to observe and to note that there was limited storage space on the site, which suggests a rational basis for a decision to move the door. This would have allowed better access to the areas requiring further substantive remedial work, including rectification work on the fixing point on the concrete slab where the door was to be installed. 15. In those circumstances, it would most probably have been convenient or expedient for the door to be stowed in a safe place, with protective wrapping to avoid damaging the special surface patina, and therefore stow it onto the back of the tabletop truck that was parked adjacent to the site. 16. I accept the plaintiff's account that he, Mr Morgan, Mr Chui, Mr Rolfe and the truck driver, and at least another person (being either Mr Malucci, Mr Acuri or Mr Acuri's employee) had participated in the lifting and the stowing of the door at the time the plaintiff was injured. That process involved two movement sequences. 17. The first part involved manually moving the door from its resting point and onto the footpath outside. The second involved lifting and stowing the door onto the back of the truck. Those lifting sequences were quite difficult, and difficult to balance. They had to be undertaken manually when hoisting the door onto the truck as there were no assistive lifting devices on the premises: T33.7; T57.34. This meant that multiple participants were required to assist to move the door. Considerations of safety required that the procedure had to be planned and managed in a co-ordinated manner. 18. Those involved in moving the door had to take hold of it for manual lifting, then maintain that hold, then carry the door outside, and then later lift and lower the door onto the truck. This involved the assistance of at least four persons located at different angles and fulcrum points of contact with the door. This most probably meant that not all persons involved in those manoeuvres carried the load with an equal distribution. The process required supervised co-ordination of effort. Unfortunately, it was in those circumstances that the plaintiff suffered a musculo-ligamentous straining injury to his lumbar spine when he assisted in hoisting the door onto the back of the truck. 19. A question emerged as to whether the truck onto which the door was loaded belonged to L'Officina where the evidence satisfactorily establishes it did not belong to Bellevarde and Bellevarde did not arrange for it to be there. A related question emerged as to whether the truck driver was an employee of L'Officina. The plaintiff and Mr Rolfe made assumptions on those matters. 20. Notwithstanding the evidence of Mr Vincenzo Botte and Mr Luciano Botte, which suggests otherwise, I find that the truck belonged to L'Officina. I also find that L'Officina's driver, Mr Espimaris was also on site at the time of the plaintiff's injury, and that he had participated in loading the door onto the back of the truck. 21. In coming to that conclusion I do not regard the significantly qualified evidence of Mr Vincenzo Botte or Mr Luciano Botte to constitute satisfactory rebuttal proof that L'Officina's truck and driver were not at the site at the time. Their evidence was necessarily qualified because they had no direct knowledge of the events. Their knowledge appears to have been assumed, and was apparently gained by reading emails from Mr Malucci, and not from any direct on-site observations. 22. The descriptions of the truck in question revealed a remarkable similarity between L'Officina's truck and the truck onto which the door was stowed, although such trucks were said to be a common sight in the streets of Sydney. The truck had blue protective blankets of the kind used by L'Officina to protect the surface of the door during handling. The moving of the door required the presence and the assistance of experienced handlers, most probably L'Officina's installers. There were men on the site who were apparently speaking Italian amongst themselves, which suggests in the context, they were connected with L'Officina. In addition, it was unlikely that L'Officina's truck would have been used by someone other than Mr Espimaris, who was L'Officina's only truck driver. 23. Given that mix of factors, I consider that the presence of a different truck but similar to L'Officina's truck was improbable, because the evidence does not reasonably suggest the presence of other works being carried out on site that day that would have indicated the presence of another truck in the vicinity, especially given the site access limitations described in the evidence. 24. In those circumstances, the compelling conclusion is that the moving and stowing of Door 115 at the time of the plaintiff's injury was an enterprise undertaken jointly between employees of Bellevarde, namely Mr Rolfe and Mr Chui, and persons acting on behalf of L'Officina, including Mr Malucci, one if not more of L'Officina's installers, and Mr Espimaris. L'Officina did not call witnesses and called no satisfactory evidence to explain why that was so. There was a reasonable expectation that those persons would be called as witnesses: RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, at [26]. Issue 2 – The relevant risk of harm 1. Before considering the question of whether either of the defendants were in breach of a relevant duty of care in the circumstances of the plaintiff's injury, it is necessary to first identify the relevant risk of harm in sufficiently general terms to allow for a range of foreseeable contingent circumstances in which the injury might occur: Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [60], [62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98]; Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320, at [118]. 2. Accordingly, guided by those principles, I find that the relevant risk of harm in this instance was the substantial risk that a musculo-skeletal injury might occur to someone assisting to lift, then carry for a short distance, and then load, a heavy door from its point of rest, onto the back of a truck. Issue 3 – Duty of care, scope, and content 1. Although aspects of the circumstances in which the plaintiff suffered injury were unusual, nevertheless, in view of the existence of a foreseeable risk of harm to the participants, the general circumstances were sufficient to give rise to a duty of care: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11]. 2. In my opinion, all of the persons who participated in the lifting and loading of the door owed a duty of care to the other participants. This was more particularly so where some of the persons involved were directing the process. That duty required the taking of the precaution of exercising reasonable care so as to seek to avoid injury to the other participants. That position was identified by McHugh J, in Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 569; [2005] HCA 26, at [59], as follows: "…Where a person directs another person to take a step that places a person in proximity to a passive condition of danger, it is often the case that it is the direction rather than the condition that causes any subsequent harm." In my view, that general statement aptly applies to Bellevarde and to L'Officina in this case. 3. In the prevailing circumstances, such a duty of care could only have been reasonably discharged by ensuring the task was adequately planned and supervised so that those participating in the process were appropriately placed in strategic positions, with postures, to safely bear the weight of the door. This could only have been achieved after adequate evaluation and consideration had been applied and instructions given by the persons co-ordinating the process to ensure the move was carried out in a safe manner. 4. In the circumstances, I find that the burden of that duty of care resided with Bellevarde as an instigating party directing the process, and L'Officina, as a participating party in the loading of the truck, by their servants or agents, thus raising the spectre of vicarious liability for any relevant departures from the respective requirements of the duty to exercise reasonable care in the circumstances. Issue 4 – Whether the defendants were negligent 1. The starting point for any consideration of questions concerning the liability of Bellevarde and L'Officina is to recognise the need to satisfy the requirements of s 5B and s 5C of the CL Act: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 238 CLR 420, at [11]. Statutory framework 1. Section 5B of the CL Act provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. Section 5C of the CL Act provides: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 1. In view of my findings to the effect that the servants or agents of both Bellevarde and L'Officina acted together in the common enterprise of the lifting and the loading of the door, it is convenient to concurrently analyse the claims of negligence against them together, as now follows. Consideration concerning s 5B(1) of the CL Act 1. Taking a prospective view of the action of lifting the door in the lead-up to the plaintiff's injury, in my opinion it was, and ought to have been, reasonably foreseeable to anyone directing the process and giving instructions for carrying out the task, that there was a substantial risk of injury involved which required precautions be taken aimed at avoiding injury to participants. 2. I find that Mr Rolfe, who was acting on behalf of Bellevarde and giving directions and instructions, and both Mr Espimaris and the participant installers who had knowledge of the weight of the door, knew or ought to have known that without the assistance of mechanical lifting aids, the task of lifting and relocating the door as described, was a foreseeably risk-laden undertaking: s 5B(1)(a) of the CL Act. 3. I find that by reason of the heavy, bulky and awkward nature of the door, the risk of injury in the course of manual lifting of an object of such weight and dimensions by multiple persons exerting lifting forces at the same time, was "not insignificant": s 5B(1)(b) of the CL Act. 4. I find that the circumstances involved a foreseeable and "not insignificant" risk of harm from injury, and that a reasonable person in the position of the persons involved in planning, directing, and facilitating the lifting and the loading of the door, would have taken prudent precautions against the risk of injury to a participant: s 5B(1)(c) of the CL Act. 5. Absent the availability of assistive lifting equipment, the required precautions would simply have involved first, giving due planning consideration to the weight and bulk of the door, deciding on where to strategically position the individual handhold positions for the participants to ensure an even and non-injurious bearing of the load, and secondly, to facilitatively supervise, direct and assist the process with such safety considerations in mind, including if warranted, deciding to desist from directing that the door be lifted until further and adequate manual assistance became available. 6. I am satisfied that the evidence indicates that neither Bellevarde nor L'Officina took those precautions, and instead, entered into the task without due consideration for the safety of those who were called upon to assist. Consideration concerning s 5B(2) of the CL Act 1. I find that a reasonable person in the position of the persons acting on behalf of Bellevarde and L'Officina, would have taken the precautions identified above because the exercise involved a high probability that a person participating in the lifting task would incur a back injury in the process: s 5B(2)(a) of the CL Act. 2. In those circumstances, there was a real and not remote prospect that a back injury was likely to be seriously harmful and debilitating: s 5B(2)(b) of the CL Act. 3. In the circumstances, absent the availability of assistive lifting devices, the burden on both Bellevarde and L'Officina in giving adequate consideration to safe lifting and moving methods, including ensuring the engagement of a sufficient number of strategically placed persons for the task, was negligible: s 5B(2)(c) of the CL Act. 4. No relevant considerations of social utility arise in the described circumstances. There was no social utility in undertaking an unsafe lifting manoeuvre in the workplace: s 5B(2)(d) of the CL Act. Consideration concerning s 5C of the CL Act 1. In my view, a reasonable person in the position of both the Bellevarde and the L'Officina employees who were responsible for relocating the door would have taken the precautions identified above: s 5C(a) of the CL Act. On a prospective view, the task should have been planned and undertaken differently: s 5C(b) and (c) of the CL Act. Conclusion as to negligence 1. The evidence relied upon by the plaintiff, which included aspects of the evidence called on behalf of the defendants, satisfies each of the statutory pre-requisites for a finding that both Bellevarde and L'Officina were negligent in the described circumstances in which the plaintiff sustained injury to his back. Issue 5 – Causation of harm 1. Although the respective defendants have been found to have been jointly and severally negligent, the question of causation of the plaintiff's injury and his consequential losses must be determined according to the requirements of s 5D of the CL Act, which provides as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 1. Although medical investigations revealed the plaintiff had imaging evidence of pre-existing degenerative changes in his lumbar spine, significantly, those changes were asymptomatic. The subject injury was the obvious precipitating cause of the plaintiff's post-injury back pain and the related symptoms which flowed from the back injury. That analysis is sufficient to satisfy the "but for" test for causation in that the negligence of the defendants was the necessary condition of the subject injury: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18]. 2. There is no reliable evidence to suggest that, absent the subject injury, the pre-existing changes seen on post-injury imaging of the plaintiff's spine, would have become symptomatic, either to the degree later experienced by the plaintiff, or to some other degree. The defendants carry the onus of proof for such a proposition: s 5D and s 5E of the CL Act. The medico-legal opinion of Dr Roy to the effect that the plaintiff had underlying degenerative changes in his spine does not assist the defendants in that regard. 3. The plaintiff's injury occurred when his assistance was enlisted to further the commercial interests of the defendants. In those circumstances, it is entirely appropriate that the scope of the liability of both Bellevarde and L'Officina, be extended to include the activity which caused the plaintiff's injury: s 5D(1)(b) and s 5D(4) of the CL Act. 4. The evidence does not suggest any reasonable basis for concluding that exceptional circumstances existed within the meaning of s 5D(2) and (4) of the CL Act, which might otherwise shield the defendants from legal liability in respect of a causation finding. I therefore conclude that the negligence of the defendants relevantly caused the plaintiff's injury. Issue 6 – Alleged contributory negligence 1. To sustain an allegation that the plaintiff was contributorily negligent in the circumstances of his injury, the liability requirements of s 5B, s 5C, s 5R and s 5S of the CL Act must be satisfied, as must the causation requirements of s 5D of the CL Act. 2. The first defendant pleaded the following general and non-specific particulars alleging contributory negligence on the plaintiff's part: 1. Failing to take any, or any proper, precautions for his own safety; 2. Being inadvertent, and 3. Failing to pay attention while helping carry the heavy door. 1. It is difficult to meaningfully relate those vague allegations to the specific factual circumstances of this case. 2. Section 5R of the CL Act establishes the standard for proof of contributory negligence, as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. 1. Section 5S of the CL Act provides a basis for a claim, such as the plaintiff's, to be defeated by a finding of contributory negligence. To sustain a defence of contributory negligence the defence bear the onus of proof according to the requirements of s 5B and s 5C of the CL Act: s 5E of the CL Act. 2. In my view, on a prospective analysis, for the reasons that follow, the defence of contributory negligence has not been established: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. 3. The plaintiff was being asked to participate in the task of moving the door onto the truck as one of at least four other workers. Objectively, it was apparent from the prevailing circumstances, including from the non-standard size and the bulky visual appearance of the door, that it was heavy. However, there is no reliable evidence that satisfactorily established the plaintiff had been provided with any pre-injury insight or knowledge as to the weight of the door being of the order of 200kgs. Furthermore, there is no evidence that he had any prior knowledge of the material components of the door, or its manner of construction, which may have otherwise served to inform him that the task might be difficult, and involve significant risk. 4. The first defendant's employee, Mr Rolfe, was directing the task and the second defendant's servants or agents were acquiescing and assisting in the process. The plaintiff was entitled to rely upon their knowledge of the door and their ostensible expertise. Those were matters of fundamental relevance to an assessment of the significance of the risk of injury from the plaintiff's perspective. 5. Critically, the plaintiff was entitled to assume that Mr Rolfe, the Bellevarde person directing the manoeuvre, and the L'Officina representatives who were familiar with the door and were assisting in loading it onto the truck, would undertake the task with reasonable care, both in planning the move and in carrying out the move. 6. In my opinion, the defendants have not shown that reasonably, the plaintiff ought to have known of the difficulties and risks involved: s 5B(1)(a) of the CL Act. 7. I do not accept that the plaintiff was either inadvertent, or that he had failed to pay attention to the task as has been alleged. Furthermore, no evidence was called to establish what if any precautions he ought to have taken for his own safety. He was entitled to rely on the knowledge and apparent expertise of those in charge of the move. 8. The plaintiff's concession that the move was not carried out in "the right way" (T45.40) cannot form the basis for a finding of contributory negligence because first, it is a non-prospective hindsight concession, and secondly, there was no assistive lifting and carrying equipment available on the site to provide a different and safer method of achieving the move. Put simply, the plaintiff was not involved in the planning, supervision or implementation of the move. 9. Counsel for Bellevarde sought to rely upon that evidence to support the claimed defence of contributory negligence. In my view, that concession by the plaintiff was based on impermissible hindsight considerations, and therefore, the defendants do not gain any assistance from that answer in seeking to sustain a contributory negligence defence: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. 10. It follows that the defendants have not satisfied the essential preliminary requirements for a finding of contributory negligence: s 5B(1) of the CL Act. I therefore reject the claim that the plaintiff was contributorily negligent in the circumstances of his injury. Accordingly, his damages will be assessed without any reduction for contributory negligence. Issue 7 – Section 151Z(2) of the WC Act 1. The plaintiff's employer, Taylor, is not a party to the proceedings. A defence invoking s 151Z(2) of the WC Act seeking to impute notional negligence to the plaintiff's employer must be determined according to the requirements of Pt 1A of the CL Act, particularly s 5B of the CL Act: Jurox Pty Ltd v Fullick [2016] NSWCA 180, at [88] to [94]. 2. L'Officina argues that the responsibility of Taylor for the plaintiff's injury should be at least 30 per cent. For the reasons that follow, I consider that submission should not be accepted. The employer's duty of care to keep an employee safe from injury is not absolute. The employer's duty is to take reasonable care. 3. The essential question to be determined here is whether the defence have discharged the onus of proof to satisfactorily establish that the plaintiff's employer was a joint tortfeasor for the purpose of engaging s 151Z(2) of the WC Act, which relevantly provides: 151Z Recovery against both employer and stranger "(1) … (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, …" 1. The plaintiff submitted that his damages should not be reduced on account of s 151Z(2) of the WC Act because neither of the defendants have established the essential pre-requisite that his employer failed to take reasonable care for his safety. The plaintiff also submitted that his employer would not have been liable if sued as a joint tortfeasor, and therefore, this statutory provision is not engaged. 2. In evaluating the contrary claim that s 151Z(2) of the WC Act has been engaged, it is important to recognise that it was Bellevarde and not Taylor that created the risk that led to the plaintiff's injury. Bellevarde was responsible for the system of work that led to the respective breaches of duty of care by both Bellevarde and L'Officina, which then led to the plaintiff's injury. 3. L'Officina claims that Taylor bears some responsibility for the plaintiff's injury due to an alleged breach of the duty of care it owed as the plaintiff's employer. In my opinion, on the evidence, that claim cannot be sustained. Whilst it is unquestionable that Taylor owed the plaintiff a non-delegable duty of care, the requirements of s 5B(1) of the CL Act for showing negligence on the part of Taylor have not been met in this case. Taylor had no knowledge of the risk. 4. The factual context of the claimed defence pursuant to s 151Z(2) of the WC Act is that Taylor employed the plaintiff as a tradesman carpenter and deployed his labour to Bellevarde's construction site. 5. In my opinion, on a prospective view of the circumstances in which Taylor allocated the plaintiff to carry out carpentry work on Bellevarde's site, the likelihood of the ultimate breach of duty of care by Bellevarde was, from Taylor's perspective, remote, and at best, insignificant: s 5B(1)(a) and (b) of the CL Act. 6. In my opinion, it was unrealistic to argue that Taylor ought to have supervised the plaintiff, a fully qualified tradesman carpenter, who was capable of working unsupervised, and should have instructed him to refer back to and consult with Taylor if his assistance was called upon to lend a casual hand to assist others on site with a task that was outside his allocated work. 7. The evidence shows that proposition was not in accordance with the comity that operated between tradesmen working on building sites. In my view, it would have been unrealistic for Taylor to induct the plaintiff into his role on Bellevarde's site in the terms argued by the second and third defendants: s 5B(1)(c) of the CL Act. 8. Accordingly, I do not accept that it is reasonable to infer that, had Taylor inducted the plaintiff in the terms argued by L'Officina, Taylor would have prevented the plaintiff (and Mr Morgan) from assisting Bellevarde and L'Officina with the task of moving of the door. 9. Bellevarde had control of the progress and the timing of the works and matters incidental thereto. Bellevarde had no control over how the plaintiff was to apply his skill as a carpenter to his assigned tasks. The specific carpentry tasks to which the plaintiff was assigned did not require that Taylor supervise the plaintiff in his work on Bellevarde's site. 10. The claim that Taylor was negligent in not supervising the plaintiff or instructing him in how he should respond to ad hoc requests for him to assist Bellevarde or others on site with manual tasks must be rejected. As a skilled tradesman, the plaintiff did not need supervision or instruction on such matters, which simply required the application of common sense on his part. 11. Foreseeably, and reasonably, the plaintiff responded co-operatively to Bellevarde's ad hoc request for assistance. He did so in a decent collegiate manner in dynamic circumstances. In doing so, he saw that there were a number of men being deployed to lift and stow the door in question. This would have been reassuring to him that safety had been considered. 12. He saw that Mr Rolfe, a Bellevarde employee, was in apparent authority, and had asserted control over the process. In exercising reasonable care for his own safety, and absent notice of a specific risk to his safety and well-being, the plaintiff was entitled to assume that in the circumstances Bellevarde was directing and carrying out the task in a safe manner. 13. The claim that Taylor should have supervised Bellevarde's activity on the site should also be rejected because in my view, a reasonable person in the position of Taylor would not have taken the precaution of supervising Bellevarde in the circumstances. 14. It follows that the s 151Z(2) claim for contribution from Taylor must fail on the basis that the essential elements of the claim of imputed negligence have not been established: s 5B(1)(c) of the CL Act; Jurox Pty Ltd v Fullick [2016] NSWCA 180, at [93]. I therefore reject the defence claimed pursuant to s 151Z(2) of the WC Act seeking a reduction in the plaintiff's damages. Issue 8 – Cross-claims and proportionate liability 1. In light of the fact that the defendants have exchanged cross-claims, and as I have found each defendant to have been negligent as concurrent wrongdoers, it is necessary to determine the proportions in which the respective defendants should be held responsible for the plaintiff's damages. This is because the respective claims between Bellevarde and L'Officina are apportionable. 2. In that regard, s 35 of the CL Act relevantly provides: 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim— (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim— (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings— (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise. 1. An assessment must be made by comparing the relative blameworthiness of the culpabilities of each party so as to rationally identify the causative potency of the negligence of each party according to what is just and equitable in the circumstances: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [10]; Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65, at p 68; James Hardy & Co Pty Limited v Roberts [1999] 47 NSWLR 425, at p 429, Clarke JA in Macquarie Pathology Services Pty Ltd v Sullivan, NSWCA, unreported (29 March 1995). 2. Reasoned findings along those lines are essential preconditions for making an apportionment pursuant to s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Amaca Pty Limited v State of New South Wales (2003) ALJR 1509, at p 1513, [20]. 3. In examining the respective chains of the causative events that led to the plaintiff's injury, it is plain that Bellevarde's actions, in not enabling door installation as planned, and in deciding to shift the door and load it onto the truck for whatever reason, precipitated the events that led to the plaintiff's injury. This occurred in circumstances where Bellevarde was in control of the site: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, at p 47, and Brennan J, at [2]. 4. In those circumstances, L'Officina's subsequent actions, which led to it becoming a concurrent tortfeasor, were an incidental consequential occurrence. L'Officina's representatives, who were responsible for the safety of the door and maintaining it in good condition until installation was complete, initially acted reasonably, but then negligently, in assisting Bellevarde's actions in moving the door. 5. In that sequence in the mix of events, in my opinion, Bellevarde should bear the greater responsibility for the plaintiff's damages than L'Officina because its employee Mr Rolfe was overseeing and directing the process that led to the plaintiff's injury. 6. In examining the respective causative potencies that led to the plaintiff's injuries, I consider that Bellevarde, as the instigator of the process, should bear the major responsibility. 7. When Bellevarde acted to move the door to its positon on the footpath outside the premises this was achieved non-injuriously because the weight of the door appears to have been evenly distributed. It was Bellevarde's subsequent decision to lift it and lower it onto the truck which introduced the problematic and dangerous element into the equation. This was achieved without due planning and consideration, as is evident from Mr Rolfe's reasoning at the time, to "worry about it later": T31.50. This indicated negligent planning and execution for the task. 8. In contrast, and in comparison, L'Officina's role was more minor. Its servants or agents, who had responsibility for maintaining the door in good condition, responded to Bellevarde's actions in dynamic circumstances where Bellevarde had already made the decision to move the door and had initiated the process. L'Officina's servants or agents were not in a position to call a halt to the next manoeuvre as Mr Rolfe was already on the back of the truck to receive and manoeuvre the door. 9. Accordingly, in assessing the respective causative potencies, I consider it just and equitable that Bellevarde's responsibility as the major actor should be apportioned at 80 per cent, and L'Officina's responsibility as the lesser actor, should be apportioned at 20 per cent. 10. By reason of the respective apportionments, an individual defendant cannot be held liable for a judgment in excess of the Court's jurisdiction: s 35(1)(b) of the CL Act. That position must be reflected in the final orders to be made in this case. Issue 9 – Assessment of damages 1. The plaintiff's amended schedule of damages claimed damages in the amount of $979,717. In the paragraphs that now follow, before setting out my assessment of the plaintiff's entitlement to damages, it is necessary to identify my findings as to the plaintiff's pre-injury circumstances; his most likely circumstances but for his injury; his injuries and treatment; some detail of the review of the medical and allied assessments undertaken of the plaintiff following his injuries; the reliability of the medical opinions on critical matters; and the nature of the plaintiff's remaining disabilities. Plaintiff's pre-injury circumstances 1. Before his injury the plaintiff was fit and healthy. He had no impairment in his capacity to seek, compete for, gain and sustain employment on the open labour market in his chosen trade as a carpenter. He had exercised that capacity in his own country, in Canada, and in Australia. Plaintiff's most likely circumstances but for his injury 1. Due to prevailing economic conditions in the Republic of Ireland, there was little opportunity for the plaintiff to maintain work in his trade in that country. He was fortunate to have been sponsored to come to this country on a working visa. He obviously found it congenial to remain here and he availed himself of work opportunities. He and his then partner intended to remain in this country. 2. Were it not for the occurrence of the subject injury, the plaintiff would most probably have remained in Australia working in his trade as a carpenter for wages of the order of the earnings he was receiving at the time of his injury. Injuries and treatment 1. Whilst the plaintiff was participating in lifting and moving Door 115, he experienced an immediate painful sensation in his lumbar spine. Subsequent radiological imaging scans revealed the injury to be a musculo-ligamentous straining injury to that region, superimposed upon pre-existing but asymptomatic degenerative changes to the lumbar spine, with disc protrusions at the levels L4/5 and L5/S1. Medical and allied reviews 1. In the paragraphs that follow I set out a chronological summary of the medical and allied attendances that the plaintiff has pursued since his injury, as documented in the exhibits, as follows 1. On 4 December 2018, the plaintiff consulted Dr Jason Kiang, a general practitioner, with complaints of lower back pain relating to an incident on 17 November 2018. A Workcover certificate was provided to him, he was prescribed Naprosyn, and physiotherapy treatment: Exhibit "A", p 103; 2. On 10 December 2018, the plaintiff consulted Dr Christopher Han, a general practitioner in the same practice as Dr Kiang, with a history of worsening lower back pain, with fluctuating severity of symptoms aggravated by a return to work. The plaintiff complained of pain and discomfort in his lower back and he exhibited a restricted range of movements due to stiffness in the muscles of the lower back: Exhibit "A", p 103; 3. On 21 January 2019, the plaintiff attended the emergency department of Prince of Wales Hospital after experiencing aggravation of his lower back pain by lifting a 10kg object at work. A physical examination revealed mild tenderness in the midline of the lumbar spine and tenderness of the paraspinal muscles. He was thought to have had a disc prolapse but without clinical evidence of any nerve root involvement. He was discharged without any diagnostic tests having been arranged: Exhibit "A", pp 106 – 108; pp 269 – 275; 4. On 24 January 2019, at the request of Dr Han, the plaintiff underwent an MRI scan of his lumbar spine. Disc protrusions were found at the levels L4/5 and L5/S1 which were thought to be possibly contacting the right L5 and S1 nerve roots in the sub-articular recesses: Exhibit "A", p 109; 5. On 11 February 2019, at the request of Dr Han, the plaintiff underwent a CT-guided intrathecal epidural injection of cortisone and local anaesthetic into the right perineural space: Exhibit "A", p 110; 6. On 24 February 2019, at the request of Dr Han, the plaintiff underwent a CT-guided injection of cortisone and local anaesthetic adjacent to the nerve in the perineural space of the right L5/S1 neural exit foramen, with contrast to display the outline of the nerve root: Exhibit "A", p 111; 7. On 27 March 2019, at the request of Dr Han, the plaintiff was assessed by Dr Etienne du Preez, a sports and exercise physician: Exhibit "A", pp 99 – 100. Dr du Preez noted the plaintiff had been seeing an exercise physiologist for the previous 3 weeks to assist him with an exercise program to help manage his symptoms. Dr du Preez diagnosed the plaintiff as having chronic mechanical pain as a consequence of his work-related disc protrusion, with associated fear, and avoidance of activity that exacerbate the pain. He also noted an element of psychological distress, anxiety and depression, and significant protective muscle tension. Dr du Preez recommended muscle relaxant medication, pain education, psychological treatment, and a gradual re-introduction to work; 8. On 9 April 2019, at the request of Dr Han, the plaintiff consulted Dr Fred Orr, a clinical psychologist, who tested him and found scores consistent with severe depression, stress, and moderate anxiety. He started the plaintiff on a program of cognitive behavioural therapy to try and exercise some control over his symptoms of pain: Exhibit "Q", p 98; 9. On 21 May 2019, the plaintiff was re-assessed by Dr du Preez: Exhibit "A", pp 101 – 102. Dr du Preez noted the plaintiff's attempt to return to work had been unsuccessful because of the nature of the duties he was required to fulfil. He considered that a return to full duties was unlikely prior to his visa expiring. He recommended pain management education resources, continuing psychotherapy with mindfulness, a strengthening program, and avoiding heavy lifting and repetitive forward bending; 10. On 14 June 2019, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Chris Walls, an occupational physician: Exhibit "A", pp 276 – 283. The purpose of the consultation, which lasted for 35 minutes, was to discuss the plaintiff's capacity for work, his treatment needs and to have a follow-on discussion with the treating general practitioner and the treating physiotherapist, against a background of only slow improvement in pain levels and function, preventing return to work as a carpenter. The assessment was undertaken even though the plaintiff was at that time being required to leave the country within a month due to the expiry of his visa as a consequence of his inability to return to work, a condition of his working visa. Dr Walls confirmed (at p 280), that the plaintiff's low back disorder was probably caused in the incident as identified by the plaintiff, and (at pp 280 – 281) he noted that the plaintiff's future work should be the subject of a series of restrictions to avoid the risk of provoking unacceptable levels of pain, Dr Walls expressed the opinion (at p 282), that there was a consistency between the plausible incident described by the plaintiff, the MRI evidence, the plaintiff's complaints of pain, and his slow recovery from the injury. The assessment was that the plaintiff had only a theoretical capacity to return to light duties, and this would be obviated by the impending need for him to leave the country. 11. On 21 June 2019, at the request of his solicitor, the plaintiff was examined by Dr Uthum Dias, a consultant occupational physician: Exhibit "A", pp 61 – 76; pp 284 – 269. He recorded (at p 67), a history of the lifting incident as described by the plaintiff, and the plaintiff having taken an initial 2 weeks off work followed by an attempt at resuming light duty work for one week, and worsening lower back pain. After noting his findings on examination of the plaintiff (at pp 69 – 70), he diagnosed the plaintiff to have chronic non-specific pain in the lumbar spine at the levels L4/5 and L5/S1 associated with disc protrusions in those areas, secondary to a musculo-ligamentous strain which was directly caused by the described frank lifting incident at work on 17 November 2018. He excluded any underlying contributing causes or aggravating causes for the plaintiff's complaints. He identified (at pp 73 – 74) a number of permanent work restrictions which the plaintiff should observe, including returning to carpentry and similar physical work tasks in view of the chronic nature of the plaintiff's lower back condition and a consequential vulnerability to incurring an aggravation injury which could cause exacerbation of that condition. He identified (at p 75) that the plaintiff's prognosis for further improvement was poor, and at that stage he considered that the plaintiff was not a suitable candidate for surgical intervention; 12. On 10 August 2019, at the request of his solicitor, the plaintiff was re-examined by Dr Dias by means of a telehealth connection as the plaintiff had returned to Ireland in mid-2019 following the cancellation of his working visa: Exhibit "A", pp 79 – 88. The updated history of ongoing symptoms noted pain, stiffness and discomfort affecting the lumbar spine (at p 80), as was the history of the plaintiff having continuing non-surgical conservative treatment for his back problems under the 3 monthly supervision of his general practitioner. He noted (at p 81), that the plaintiff has not been working since his return to Ireland, and (at pp 80 – 81), that he struggles with activities such as walking, standing, sitting and driving for prolonged periods due to worsening back pain, and he is unable to perform exercises such as running, twisting, lifting or bending without the risk of aggravating the condition of his lower back. It was noted (at p 83), that the plaintiff's range of movements were limited. At p 84, Dr Dias restated his earlier diagnosis, by now describing the plaintiff's musculo-ligamentous strain as acute. At p 85, he stated the plaintiff was fit for part-time work for about 25 – 30 hours per week with many restrictions and allowances that must be observed in his work activities. At p 87, Dr Dias considered the plaintiff had a poor prognosis for returning to full-time work, and required vocational retraining for other work. He continued to advise what the plaintiff should have conservative non-surgical treatment and supportive management on an indefinite basis 13. On 23 July 2020, at the request of his solicitor, the plaintiff had a telehealth consultation and assessment with Dr Ben Hooi-Beng Teoh, a consultant psychiatrist: Exhibit "A", pp 89 – 97. Dr Teoh recorded (at pp 91 – 94), a history of depressed mood and preoccupation with negative thoughts, insomnia, a loss of confidence, and irritability, which led to his diagnosis of a chronic adjustment disorder with depressed mood, with the potential for aggravation of the underlying pain leading to persistence of depressive symptoms. Overall, he described the prognosis for the plaintiff to be poor, requiring treatment by a psychologist; 14. On 22 January 2021, at the request of the solicitor for the second and third defendants, the plaintiff was examined in Dublin by Dr Paul Scully, a consultant psychiatrist: Exhibit "A", pp 256 – 263; pp 300 – 307. Dr Scully's report dated 30 January 2021 reviewed the plaintiff's life history and the post-injury medical reports. He expressed opinions (at p 262) to the effect that the plaintiff's stated unhappiness with all that has transpired fulfilled the diagnosis of a depressive episode; whilst the plaintiff has suffered adversity, he disagreed with Dr Teoh's diagnosis of adjustment disorder, and he also disagreed with Dr Orr's formulation as it was based on answers to a questionnaire; and he concluded that the plaintiff's psychosocial stress consequent upon his changed circumstances, did not amount to a psychiatric illness; 15. On 23 March 2021, at the request of the solicitor for the second and third defendants, the plaintiff was examined in Dublin by Dr Deb Roy, a consultant neurosurgeon and spinal surgeon: Exhibit "A", pp 264 – 267. After reviewing the plaintiff's history and examining the plaintiff in conjunction with a consideration of the MRI findings, Dr Roy expressed his opinion (at p 266) to the effect that the plaintiff's back pain, which was now lower down from the injury site, was related to underlying degenerative changes that have been rendered symptomatic due to the described injury, and his prognosis was that the plaintiff may well continue to have a degree of pain into the future even if he were to, in combination, lose weight, exercise, have facet joint injections, and have facet joint denervation; 16. On 15 November 2021, Dr Scully issued an addendum to his report dated 30 January 2021, in which at the request of the solicitors for the second and third defendants, he stated that he agreed to be bound by the Expert Witness Code: Exhibit "A", p 268; p 312; 17. On an unstated date, possibly November 2020, the plaintiff was seen by Dr Sebastian Anderssen at an orthopaedic clinic in County Meath for his severe and disabling mechanical backache symptoms. It was noted that he required analgesia and continuing physiotherapy with regular reviews. The advice was to avoid sitting and standing for prolonged periods and to avoid bending and lifting activities due to pain. Dr Anderssen considered that the plaintiff was unable to work at that time, requiring regular review, and change was not likely given the chronicity of his experience of pain: Exhibit "A", p 105. 1. I now turn to a consideration of the conclusions to be drawn from the medical evidence as summarised above. Reliability of the medical opinions 1. In cases such as this, where parties rely on the opinions of medical experts, there are governing criteria which influence the acceptability of such opinions, which must be appropriately reasoned: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, at [93]. UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). Report of Dr Han – 17 August 2019 1. Dr Han's unchallenged report dated 17 August 2019 pre-dated this litigation. It sets out an historical summary of the plaintiff's consultations with his general practitioner, his complaints, and the resultant referrals. There is no indication for not accepting Dr Han's report. Report of Dr Walls – 21 June 2019 1. The opinions of Dr Walls in his report dated 21 June 2019 were not prepared for this litigation but were instead provided to the workers' compensation insurer for its purposes. This may explain why Dr Walls did not refer to the Expert Witness Code. The report served an investigatory and advisory purpose in informing the insurer of the plaintiff's problems. In my view, the opinion of Dr Walls to the effect that the plaintiff's discomfort would take months to settle should carry no determinative weight not only because that prediction has not been borne out by the passage of time, but also because the opinion was not sufficiently reasoned for it to be reliable: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). It is in the form of an ipse dixit, or no more than an oracular pronouncement that does not identify how Dr Walls' specialised knowledge leads to the conclusion he expressed: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [87]-[89]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, at 306; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29. Report of Dr Dias – 21 June 2019 and 10 August 2019 1. Dr Dias acknowledged the Expert Witness Code in his reports. His opinions on matters of diagnosis, prognosis and work restrictions were supported by the appropriate level of reasoning: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). Accordingly, the unchallenged opinions within his report, on their face, were reliable and capable of acceptance. Report of Dr Roy – 10 May 2021 1. Dr Roy, a consultant neurosurgeon with spinal specialty, examined the plaintiff in Dublin on 23 March 2021. He issued his succinct four-page report to the first defendant's solicitors seven weeks later, on 10 May 2021. His report did not specifically acknowledge the Expert Witness Code that applies to litigation in this jurisdiction. There is no evidence that the solicitors who instructed him had drawn his attention to the content of that Code and the need for him to acknowledge that Code. 2. That said, Dr Roy made a declaration that, in furnishing his report, he understood his primary duty was to assist the Court, and he declared that he has complied with that duty. 3. Dr Roy's declaration was in the following terms: "I, Mr. Deb Roy declare that, 1. I understand that my primary duty in furnishing written report and giving evidence is to assist the court and this takes priority over any duty which I may owe to the party or parties by whom I have been paid. I confirm that I have complied with and will continue to comply with this duty. 2. I have endeavoured in my reports and in my opinions to be accurate and have all relevant issues concerning the matters which I have been asked to address stated, and the opinions expressed represent my own professional opinion. 3. I confirm that I am a fully trained Neurosurgeon on the Specialist Register of the Irish Medical Council." [Exhibit "A", pp 310 – 311] 1. Whilst there is no basis for doubting Dr Roy's cited declaration, it nevertheless falls short of the requirements of the applicable rules: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). This comment should not be read as a criticism of Dr Roy. This element of compliance was the responsibility of the solicitors who retained him. 2. Dr Roy considered the MRI scan of the plaintiff's lumbar spine taken on 24 January 2019, which showed degenerative disc disease at L4/5 and L5/S1 with small disc protrusions close to the right L5/S1 nerve roots and expressed the following opinion: "This man was injured during the course of his occupation. Most of his back pain is now in the lower back region and in my opinion it is related to underlying degenerative changes which have now become symptomatic. Of importance, this was not symptomatic before the accident and I am of the opinion that the causation of his ongoing pain is related to the accident itself. With regard to prognosis, I would expect Mr, Monahan to respond to a combination of exercise, weight reduction and further therapeutic injections, particularly facet joint injections at the L4/5 and L5/S1 region which has not been done to date. If he were to respond to these injections, he would be a candidate for facet joint denervation. A combination of these treatment modalities may lead to a reduction in pain however Mr. Monahan may well continue to have a degree of pain into the future." [Exhibit "A", p 310] 1. In my view, Dr Roy's opinion should be read as indicating that the plaintiff's musculo-ligamentous injury has aggravated the underlying degenerative changes so as to render them symptomatic. That conclusion is consistent with the case the plaintiff seeks to make. Report of Dr Teoh – 28 July 2020 1. Dr Teoh's report acknowledged the Expert Witness Code. He identified the plaintiff's significantly depressed mood, his preoccupation with negative thoughts, social withdrawal, irritability, financial stress, and worrying about his future and his physical condition. Those indications formed the reasoned basis of his opinion that the plaintiff's presentation was consistent with the DMS 5 diagnostic criteria for chronic adjustment disorder with depressed mood. That opinion fulfilled the requirements for acceptance of expert opinions: UCPR r 31.27(1)(c). Report of Dr Orr – 9 April 2019 1. The unchallenged historical report of Dr Orr dated 9 April 2019 was a contemporaneous clinical communication addressed to the plaintiff's referring general practitioner. It pre-dated this litigation. In that context, there was no requirement for Dr Orr to acknowledge the Expert Witness Code. He has acceptably explained the clinical basis for his diagnosis of the plaintiff's depression. Reports of Dr Scully – 30 January 2021 and 15 November 2021 1. Dr Scully was provided with a copy of Dr Teoh's report dated 28 July 2020 and Dr Orr's report of 9 August 2019. He disagreed with those opinions in the sense that whilst he accepted the plaintiff suffered from psychological stress, this was not a psychiatric illness. He appears to have based that opinion on the following axiomatic colloquial statement extracted from DMS 5: "When bad things happen, most people get upset. This is not [necessarily] an adjustment disorder". 2. Without further discussion, Dr Scully then immediately went on to make the following oracular statement: "Therefore it is my opinion that [the plaintiff] does not have an adjustment disorder. In this regard I disagree with the opinion offered by Dr Ben Teoh, Consultant Psychiatrist, in 2020". 3. The terms of that disagreement did not adequately engage with the unchallenged and otherwise acceptable detail of the plaintiff's history as recorded by Dr Teoh: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. In my view, those circumstances undermine the basis for acceptance of that aspect of Dr Scully's report: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. 4. That aspect of Dr Scully's opinion is oracular in its nature, and it is in the form that was criticised as an "ipse dixit" in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]. In that regard it is not compliant with the requirements of the Expert Witness Code, and therefore, prima facie, it should be rejected: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e). 5. Ten months after providing his initial report dated 30 January 2021, without additional contextual explanation, Dr Scully prepared an addendum to that report. In that addendum he stated that he had received the Code referred to in UCPR r 32.23 (without stating when and in what circumstances), and he went on to state that he read the Code and agreed to be bound by that Code. 6. I find Dr Scully's ex post facto acknowledgment of the Expert Witness Code to be unsatisfactory and not curative of the self-evident defect in the primary report. That matter could possibly have been explored and explained either in a conclave meeting of expert witnesses or by oral evidence, notwithstanding the disparate geographic locations and time zone differences. Absent such a course, I do not accept the opinions of Dr Scully where they conflict with the opinions of Dr Teoh and Dr Orr. 7. It was up to the party relying on Dr Scully's opinion to establish the appropriate foundations as the basis for its acceptance. Dr Scully was engaged by experienced solicitors who must be taken to have been aware of the pre-requisites for acceptance of expert opinions. The onus of proof for the contentions relied upon within the opinions of Dr Scully have not been satisfactorily discharged: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48]; s 5D of the CL Act. Reports of Dr du Preez – 27 March 2019 and 21 May 2019 1. The unchallenged historical reports of Dr du Preez dated 27 March 2019 and 21 May 2019 comprise contemporaneous clinical communications addressed to the plaintiff's referring general practitioner. That correspondence pre-dated this litigation. In that context, there was no requirement for Dr du Preez to acknowledge the Expert Witness Code. He has adequately explained the clinical basis for his diagnosis of the plaintiff's problems, namely a chronic mechanical lower back ache with associated muscle tension and pain, chronic pain sensitisation, psychological distress, anxiety, and depression. Report of Dr Anderssen - Undated 1. Dr Sebastian Anderssen appears to be the plaintiff's general practitioner in County Meath. His undated report was not challenged. He has recorded the plaintiff's history as including severe, restricted, and disabling back pain requiring regular strong analgesia to assist in alleviating his symptoms. He noted the MRI findings and noted the disc protrusions. He noted the plaintiff's pain was aggravated by activities such as prolonged sitting and standing. He also noted that activities such as bending, and lifting, were also very painful for the plaintiff. He noted the plaintiff's problems were chronic, and unlikely to change. He noted the plaintiff has been referred to the orthopaedic team at Conolly Hospital: Exhibit "A", p 105. Reliability conclusions concerning medical evidence 1. In the preceding paragraphs I have set out my reasons for preferring and accepting the unchallenged opinions of Dr Han, Dr Dias, Dr du Preez, Dr Roy, Dr Anderssen, Dr Teoh, and Dr Orr, along with my reasons for not accepting aspects of the opinions of Dr Walls and Dr Scully. Disabilities that remain 1. The plaintiff has been left with considerable back disability. In view of my acceptance of the plaintiff's credit as a witness, and my acceptance of his evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence, and referred to in the paragraph that follows, as evidence of the plaintiff's difficulties that he has experienced as a result of his injuries: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995. 2. The plaintiff continues to experience ongoing stiffness, pain, discomfort, and restriction of the range of normal movement, with consequential related restrictions on his capacity to work. He experiences consequential low mood and sleeping difficulties. All those matters have an adverse effect upon his earning capacity which was otherwise unrestricted. Those problems have led to the plaintiff suffering a chronic adjustment disorder with depressed mood. In combination, those problems serve to significantly impair his capacity to work. Damages 1. The parties made disparate submissions on the appropriate composite sum to be awarded for the plaintiff's damages. Some heads of damage were the subject of agreement. The plaintiff's submissions were in the total sum of $998,172.84. In contrast, the defendants' submissions totalled $572,364, subject to argued discounts for alleged contributory negligence and alleged negligence of the plaintiff's employer, arguments which have not been accepted. I now turn to my assessment of the plaintiff's damages. Non-economic loss 1. The plaintiff submitted that non-economic loss pursuant to s 16 of the CL Act for pain, suffering and for loss of the amenity of his life should be assessed at 30 per cent of a most extreme case. The defendants accepted that submission as reasonable. Having regard to the plaintiff's circumstances as described in his evidence and in the medical evidence reviewed at paragraphs [233] to [256] above, I consider that concession was both fair and appropriate. I therefore assess the plaintiff's damages for non-economic loss at 30 per cent of a most extreme case, which equates to the sum of $159,500. Past economic loss 1. The plaintiff claimed the sum of $167,109 as damages for past economic loss. That claim was calculated based on an agreed rate for net loss of $1142.90 per week in respect of his inability to work since the time of his injury. 2. The plaintiff described the physically demanding nature of the work of a carpenter: T38.27 – T39.5. He never had difficulty with those tasks before his injury. He has been unable to continue in that work, His rehabilitation was incomplete at the time he was required to leave the country when his visa was cancelled. His potential fitness for part-time work must be considered in light of those overarching circumstances. 3. There is no suggestion that the plaintiff has unreasonably failed to mitigate his losses. He has completed a four day course in computer assisted design but this has not led to any employment. He feels, reasonably and consistent with medical advice, that working in retail sales in a shop, as he had done previously, would be problematic for him because of the need for prolonged standing and the limited scope for varying his activity and his posture in that type of work, assuming such work was available. There have been no openings in that line of work for him to explore until now. 4. The defendants' past economic loss submission accepted that, at the agreed weekly rate, the plaintiff's past economic loss could be calculated over a period of 160 weeks, which yields the calculated sum of $182,864. I find that sum to be the appropriate measure of loss for this head of damage. I therefore assess the plaintiff's damages for past economic loss in the sum of $182,692. Past loss of employer funded superannuation benefits 1. Past loss of employer funded superannuation benefits is calculated at 11 per cent of the sum assessed for past economic loss. I therefore assess the plaintiff's damages for past loss of employer funded superannuation benefits in the sum of $20,115. Future economic loss 1. The plaintiff claims the sum of $515,210 as damages for future economic loss. That claim is calculated based on a projection of a loss of $700 per week net over 34 years (x 865.9) less a discount of 15 per cent for potential adverse vicissitudes. 2. In contrast, the defendants submitted there was no basis in the evidence for a precise weekly sum of $700 to be projected over the remainder of the plaintiff's working life. Instead, the defendants conceded that any continuing economic loss suffered by the plaintiff would be more appropriately compensated by a generous buffer of $200,000, considering that the plaintiff has the ambition to be productive, and he has already taken steps to start his own business. 3. Dr Dias has assessed the plaintiff as being fit for lighter part-time work but with a considerable list of restrictions on the activities to be performed in such work: Exhibit "A", p 296. Before his injury, the plaintiff had the capital asset of an unrestricted capacity to seek out, compete for and maintain, a wide range of manual work, both within and outside his trade qualifications. As a consequence of his injury, that ability has been substantially impaired and significantly confined on account of his physical symptoms of pain and his consequential psychological symptoms of depressed mood and irritability. 4. Those considerations, and my review of the medical evidence as summarised at paragraphs [233] to [256] above indicates that there should be a generous but reasonable and fair component included in the plaintiff's damages for future economic loss. The defendants' concession in that regard was fairly made. It is the amount that remains in dispute. 5. Before assessing the appropriate amount of compensation for future loss of earning capacity it is relevant to review salient features of the medical opinions touching upon this issue that I have preferred. 6. In 2019, the opinion of Dr Walls was that the plaintiff had only limited fitness for work. He excluded heavy work, unrestricted lifting, forceful movements, awkward postures, static postures, and work that involved whole body vibrations. Dr Walls considered that the plaintiff had a theoretical capacity for work comprising tasks permitting positional variety, clerical or administrative tasks, but allowing for a degree of inefficiency: Exhibit "A", pp 280 – 282. 7. In 2019, Dr Dias considered that in view of the plaintiff's chronic lower back problems, for the foreseeable future, the plaintiff retained only a partial capacity for work due to his chronic lumbar condition. He considered it unlikely that the plaintiff would ever be able to return to the work of a carpenter due to the physical requirements of that work. Dr Dias excluded work involving repetitive bending or twisting of the lumbar spine, prolonged kneeling or crouching, repetitive manual handling, repetitive heavy manual pulling and pushing and repetitive tool use. Although he considered there was scope for some moderate improvement, from a functional perspective, he considered the plaintiff's prognosis guarded, and that it was doubtful that he would be pain free. He predicted ongoing debilitating stiffness, pain and discomfort, despite rehabilitative measures. He suggested vocational retraining, however the scope for pursing that course in Australia has been truncated by the injury-related termination of the plaintiff's work visa: Exhibit "A". pp 264 – 299. 8. At the plaintiff's relatively young age of 33 years, where, absent injury, he had the reasonable expectation of a normal working life of at least as many more years, subject to ordinary vicissitudes. Instead, now, with those identified work limitations, he is entitled to an award of significant damages for future loss of earning capacity as he will incur significant loss of earnings: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5. 9. Having been permanently deprived of his ability to pursue his trade, the plaintiff has now embarked upon a reasonable mitigatory course of trying to establish a dog walking business. The economic prospects and outcome of that business is uncertain. The sustained physical activity of holding onto a leashed dog that might forcefully pull on the leash might well be contrary to the work restrictions identified by Dr Dias. Other medical evidence indicates that the plaintiff should avoid sitting and standing for prolonged periods and he should avoid bending and lifting activities due to pain: Exhibit "A", p 105. It is foreseeable that some aspects of a dog walking business could require him to carry out such ad hoc activity contrary to those suggested restrictions. 10. The plaintiff lives in a place where the described economic conditions indicate that work is hard to find. It would be reasonable to assume that the viability of earnings from work as a dog walker would be dependent upon the earnings and economic prosperity of his potential clients. He is yet to undertake a dog training course. The potential for the plaintiff to derive a viable income from a dog walking business remains speculative. It is not possible to discern the extent of any likely mitigatory earnings for accurate or reasonable offset from the claim for future loss of earning capacity. 11. In those circumstances, a precise mathematical projection of a selected weekly sum, even if conventionally discounted, would be an artificial approach. Instead, the plaintiff's circumstances indicate that a buffer assessment in a substantial compensatory sum would be a more appropriate approach to the assessment of future economic loss: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25]-[27]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, at [33]-[45]; [50]. I assess the plaintiff's future economic loss in the rounded buffer amount of $450,000. Future loss of employer funded superannuation benefits 1. If the plaintiff had not been injured, it is more likely than not he would have legally remained in Australia and worked in his trade and he would therefore have derived the statutory benefit of employer funded superannuation contributions to fund his eventual retirement. He has lost that benefit and he should be compensated for that loss. The quantification of future loss of employer funded superannuation benefits is calculated at 11 per cent of the sum assessed for future economic loss. I therefore assess the plaintiff's damages for future loss of employer funded superannuation benefits in the sum of $49,500. Past domestic assistance 1. The plaintiff makes no claim for past domestic assistance. Future domestic assistance 1. The plaintiff claims the weekly sum of $50 per week over the remainder of his statistically estimated life expectancy (x 971.5) less 15 per cent for potential adverse vicissitudes, namely, $41,288.75. The hourly rate which bases that submission has not been identified but assuming it represents one hour per week it seems to be within the broad range of hourly rates for commercially provided domestic assistance often seen in such cases. 2. In contrast, based on the proposition that the plaintiff has not utilised commercial domestic assistance to date, the defendants submitted that therefore, there should be no allowance for future domestic assistance. The assistance he has received has been for less than the statutory compensation threshold of 6 hours per week: T42.5. 3. The plaintiff's evidence as to domestic tasks was to the effect that his partner does the substantive domestic tasks and his input involves carrying out the minor and lighter tasks such as wiping down counters. He feels tasks of that character represent his limit because of his reduced capacity for carrying out physical tasks: T42.12. At present, whilst he continues to live in a small flat this seems to be less of a problem, however, he has plans to marry his partner, have children, and intends to live in a two or three bedroom house. At that stage, his need for domestic assistance will be greater than it is at present. 4. Whilst the medical evidence does not specifically address the topic of assistance with domestic tasks the evidence of the plaintiff is well placed to speak with reasonable authority on that subject, the physical work restrictions identified by Dr Dias' report (at pp 296 – 297) are reasonably transposable into the plaintiff's domestic setting, where some of the heavier and periodically recurring aspects of domestic tasks would fit within the physical limitations recommended by Dr Dias. The plaintiff has a long life of restriction ahead of him. It is reasonable that he be compensated for the need to obtain paid assistance for the heavier domestic tasks of running and maintaining a home. It cannot be assumed that his partner would gratuitously and continuously take on all of those tasks indefinitely. 5. In my view this head of damage is best addressed by the allowance of an appropriate buffer amount. I therefore assess the plaintiff's damages for future domestic assistance in the buffer sum of $40,000. Future treatment expenses 1. The plaintiff claims a buffer sum of $15,000 for his likely future treatment expenses. Although in contrast, the defendants submitted that there was no evidentiary basis for any future out-of-pocket expenses, they submitted that it would be appropriate to round up the claim for past out-of-pocket expenses to $30,000, which in effect allows for an additional buffer of about $4500 for any likely future treatment expenses. Such a course would be arbitrary. 2. The unchallenged opinion of Dr Dias, who has recommended that the plaintiff indefinitely pursue conservative future medical management, identified a likely ongoing cost of approximately $AUD1500 to $AUD2000 per annum for physiotherapy, pain management counselling sessions with a psychologist, topical and oral analgesia as required, and periodic consultations with medical practitioners. That regime is recommended in addition to adherence to a daily program of home exercises. 3. The basis for Dr Dias' future treatment recommendations is that, in addition to managing his pain, for the foreseeable future, the plaintiff needs to increase and maintain core muscle strength and stability to improve or maintain his functional tolerance and to improve his extensor endurances given his relatively poor prognosis for significant improvement in his symptoms. 4. Other medical evidence indicates that the plaintiff requires analgesia and continuing physiotherapy with regular reviews: Exhibit "A", p 105. 5. As there is no evidence as to the likely cost of the recommended services in the Republic of Ireland, those damages must be assessed by reference to the costs identified by Dr Dias, also taking into account the recommendations of Dr Roy for therapeutic facet joint injections at L4/5 and L5/S1, possibly followed by a facet joint denervation procedure aimed at reducing, but not eliminating, the plaintiff's experience of pain. The costs of Dr Roy's treatment recommendations are not known. 6. The weekly equivalent of Dr Dias' estimates is between $28 and $38 per week. The average of those two figures is $33 per week. The projection of that average sum over the plaintiff's statistical life expectancy (x 971.5) yields the amount of $32,059. There is no requirement for reducing any amount assessed for future treatment on account of potential adverse vicissitudes as the statistical formula has already been discounted for mortality. 7. In my view, on the comparative analysis identified above, the plaintiff's submitted claim for future treatment expenses as discounted, seems quite modest, and should be allowed. I therefore assess the plaintiff's damages for likely future treatment expenses in the buffer amount of $15,000. Past out-of-pocket expenses 1. I assess the plaintiff's past out-of-pocket expenses in the agreed sum of $25,430. Summary of damages assessment 1. My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $159,500 (b) Past economic loss $182,864 (c) Past loss of superannuation $20,115 (d) Future economic loss $450,000 (e) Future loss of superannuation $49,500 (f) Past domestic assistance $Nil (g) Future domestic assistance $40,000 (h) Future treatment expenses $15,000 (i) Past out-of-pocket expenses $25,430 Total $942,409 Disposition 1. The plaintiff has established that both Bellevarde and L'Officina were negligent in the circumstances that led to his accident, and he has established that negligence was the cause of his injuries. As he has sued those defendants jointly and severally, he is entitled to a verdict against each of them in the assessed amount of $942,409. 2. On the respective cross-claims exchanged between Bellevarde and L'Officina, the responsibility of those respective defendants has been apportioned as being 80 per cent to Bellevarde ($753,927.20) and 20 per cent to L'Officina ($188,481.80). Monetary jurisdiction of the Court 1. The monetary jurisdiction of this Court for this type of case is, and has for the previous 25 years, been limited to $750,000: s 44(1) of the District Court Act 1973 (NSW). The Appendix to these reasons sets out the legislative history of this Court's monetary jurisdiction pursuant to s 44(1) since 1 July 1973, when at that inception date, it was $10,000. Whilst a judgment may be entered against a particular defendant for an amount in excess of the Court's jurisdiction, in this case, the plaintiff cannot seek satisfaction of that judgment against the affected defendant for an amount in excess of $750,000: Richards v Cornford [2010] NSWCA 99, at [12]. This was known to the parties at the commencement of the hearing: T19.2. The Court's file will be noted accordingly. Costs 1. As the plaintiff has succeeded in obtaining judgments in his favour against each defendant, he should have an order that the defendants should pay his costs of the proceedings against each defendant on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply. The cross-claimants should bear their own costs of the cross-claims and bear the plaintiffs' costs in the same proportion as identified at paragraph [294] above. Orders 1. I make the following orders: 1. Verdict for the plaintiff against the defendants jointly and severally in the assessed amount of $942,409; 2. Judgment for the plaintiff against the first defendant Bellevarde Constructions Pty Ltd in the amount of $753,927.20, noting that, by reason of the jurisdictional defence pleaded, the plaintiff is only able to recover the amount of $750,000 from that defendant; 3. Judgment for the plaintiff against the second and third defendants L'Officina by Vincenzo Australia Pty Ltd and Allianz Australia Limited in the amount of $188,481.80; 4. The defendants should pay the plaintiff's costs of the proceedings against them in the proportion of 80 per cent by Bellevarde Constructions Pty Ltd and 20 per cent by L'Officina by Vincenzo Australia Pty Ltd; 5. The respective cross-claimants should bear their own costs in respect of their cross-claims; 6. The exhibits may be returned; 7. Liberty to apply on 7 days' notice if further or other orders are required. ********** APPENDIX HISTORICAL CHANGES TO DISTRICT COURT'S JURISDICTIONAL LIMIT Date Legislative Instruments amending s 44(1) of District Court Act 1973 Jurisdictional Limit 1 1/7/1973 District Court Act 1973, s 44(1) at inception $10,000 2 1/4/1975 District Court Amendment Act 1975 No. 1 $20,000 3 1/4/1983 District Court Amendment Act 1982 No. 41 $100,000 4 1/7/1993 Courts Legislation (Civil Procedure) Amendment Act 1991 No. 12 $250,000 5 18/7/1997 District Court Amendment Act 1997 No. 58 $750,000 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: 11 March 2022