New South Wales District Court CITATION: Peers v Transfield Constructions Pty Ltd [2009] NSWDC 373 HEARING DATE(S): 14/09/2009, 15/09/2009, 16/09/2009, 17/09/2009, 21/09/2009, 22/09/2009, 23/09/2009, 24/09/2009 JUDGMENT DATE: 16 November 2009 JURISDICTION: Civil JUDGMENT OF: Williams DCJ DECISION: In accordance with my findings there will be a verdict for the plaintiff in the sum of $ 434,437.00. I order the Defendant to pay the Plaintiff's costs of these proceedings. The Court of Appeal reserved to this court the question of costs in regard to the first trial. In that regard, I grant liberty to the parties to re-list the matter before me at any time prior to 10/12/09 to argue the question of the costs of the first trial and any additional issue as to costs that might arise out of the second trial. However if the matter is not re-listed before me on or before 10/12/09 then, the Plaintiff having been successful on both trials, I order the defendant to pay the plaintiff's costs of the first trial. The verdict and costs of the second trial are to be paid within 28 days of today's date. In the event of order 3 coming into effect I order the Defendant to pay the plaintiff's costs of the 1st trial within 28 days of 10/12/09. Interest is to run on any unpaid costs after 28 days in accordance with the District Court scale. Interest on the verdict is to accrue in the normal way. CATCHWORDS: Negligence – personal injury – rehearing on liability and damages – fall into excavation on construction site - issue as to occupier of site – liability of principals and sub-contractors – who is my "neighbour" – application of 151Z of Workers Compensation Act – responsibilities of proof in multi party cases – contributory negligence and mere inadvertence – damages – costs of first trial and subsequent trial. LEGISLATION CITED: Workers Compensation Act s151Z Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 303 Leighton Contractors P/L – v – Fox & ors 2009 HCA 35 RTA – v – Dederer Sydney Water Corp v Turano 2009 HCA 42 Harrison v Lau Nominees Pty Ltd (2004) NSWCA 18 CASES CITED: Andor Transport Pty Ltd v Brambles Limited (2004) HCA 28 Procrane Pty Ltd v Knobbs (1996) NSWCA unreported 407777 of 93, 15 November 1996 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) NSWCA 99 Boral Resources (NSW) Pty Ltd v Watts 2005 NSWCA 191 Vairy v Wyong Shire Council 2005 HCA 62 Canterbury City Council v Taylor and ors 2002 NSWCA 24 PARTIES: Mathew Mark PEERS Transfield Constructions Pty Ltd FILE NUMBER(S): 4099/2003 Mr RUSSEL SC (Plaintiff) COUNSEL: Mr GOOLEY (Plaintiff) Mr POLIN SC (Defendant) SOLICITORS: Mr Koffell (Koffels Solicitors and Barristers) (Plaintiff) Mr O'Neill (DLA Phillips Fox) (Defendant) PRELIMINARY:- This matter is a retrial after a successful appeal by the Defendant to the Court of Appeal. As it was not thought necessary by the parties, I have not had regard to, nor have I read, either the Court of Appeal's Judgment or the original trial judge's judgment in deciding this matter. 1.On 4/09/2000 Mr Peers was injured while working on a site operated by Transfield. Transfield were engaged to construct sewerage works at Braemar near Mittagong. The works involved the construction of several ponds, the earthworks for which were performed by a sub-contractor, Select Civil (Kiama) Pty Ltd. Peers' employer, Beltreco, was subcontracted to line the earth ponds with a waterproof membrane. Peers and several others were dispatched from Queensland to Mittagong to perform the work. 2.There are six ponds that are relevant to these proceedings and they have generally been referred to as ponds 1, 2, 3, 4, 5 and 6. In particular, I am concerned with ponds 3, 4, 5 and 6. These can be seen in the bundle exhibit A at p37 and p39 and in the diagram herein which is a copy of p39. North is at the top of the diagram. The numbering does not form part of the exhibit. The general process to line the ponds required that the soil surfaces be smoothed to an acceptable degree, that geotextile fabric be laid on top of the soil and that an HDPE membrane in panels be laid on top of that. The seams between the panels of HDPE were heat welded and tested. A record was kept of the roll number of HDPE, the panel number, the seam number, the seam sealing machine, the operator and the date and time each panel was installed. 3.Peers's injury is said to have occurred on the Southern wall of pond 6. There is a significant dispute as to how the injury is said to have occurred. 4.Running along the southern rim of ponds 3, 4, 5, and 6 was a trench into which was placed concrete culvert sections and eventually lids. I will refer to this trench as the culvert trench. Immediately next to the northern side of this trench, an anchor trench was dug into which the geotextile fabric and HDPE membrane was folded. Eventually, this trench would be backfilled and operated to anchor in place the many panels of material that made up the ­­­membrane. 5.It is also not disputed that at a point midway along the culvert trench in each pond and directly to the north of it was a pipe pit whose southern side was the concrete culvert section placed in that position. The purpose of these trenches and pits was to contain piping and electrical cabling of various shapes, sizes and types necessary to ensure the functioning of the plant. 6.Peers says that those pipe pits were between 1.8 - 2 metres deep. Transfield says they were only 1.2 metres deep. Peers says that on 04/09/2000 he was walking west to east along the Southern wall of pond 6 directing work being done on the floor of pond 6 by Mr Shepherd (now known as Heidmann) and a Mr Galbraith when he walked into the pipe pit, fell and landed on his right hip. He felt bruised and shaken up. He was helped out of the hole and complained to Transfield's site manager Ian Smith but did not lodge a formal notice of injury until about 1 week later. He kept working that day but increasing pain and discomfort caused him to see a local GP. 7.The accident was witnessed by Mr Shepherd who came from Karatha in Western Australia to give evidence for Peers. He confirms that he and Galbraith were working on the floor of pond 6 and that Peers was walking along the Southern wall directing them when he suddenly disappeared. He rejected the suggestion that Peers had simply slipped and had fallen over and said that if that had occurred, he would have seen Peers lying on the ground on top of the dam as he was, and still is, a fairly well built young man. He supports Peers' evidence that the pit into which Peers fell was 1.8 to 2 metres deep. He also confirms Peers's evidence as to an earlier occasion when Shepherd and Galbraith were carrying a roll of Geotextile on the Southern wall of pond 3 and Galbraith, walking backwards, fell in that pipe pit which was also 1.8 – 2metres deep. Galbraith was grazed but sustained no serious injury. 8.Peers's initial complaints to doctors and his report of the incident are not fully in line with the version of events he now gives. Further Peers says that after the Galbraith incident he reported to Ian Smith and then back filled that hole to about 1 metre in depth. Smith denies either of these complaints being made to him, or indeed any backfilling of the hole. 9.Peers says that after his accident he back filled the pond 6 hole and also put up some fluorescent bunting secured by 2 star pickets in each side of the pit in the anchor trench as a warning to others. 10.Peers's girlfriend and now wife, Danielle was called to give evidence. She had arranged to meet up with Peers at Mittagong on the day the incident occurred. She says she went to the motel where he, Shepherd, Galbraith and others were staying. She first saw Shepherd who was laughing and making jokes about Peers being taken by the elves. Shepherd said to her that Peers had been walking along and just disappeared down a hole. She went in to the room and saw Peers lying on the bed. He was a bit sore and told her that "he was walking along and the ground disappeared from under him and he was in a big hole, fell into a big hole." (TP 271). 11.Mr Galbraith gave evidence that he was working in pond 6 when he became aware that Peers had fallen although he did not see the fall occur. He also confirmed his own fall and the circumstances of it. He had no doubt that the pipe pit he fell into was 1.8m deep when he stood up in the pit after having fallen. 12.Set out below is a chronology of what appears recorded as the history of Peers' injury in a variety of documents. DATE PERSON DOC RECORDED HISTORY 11/09/2000 Dr Lewis Clinical Notes and Certificate Fell over, right hip, 04/09/2000. Slipped on textile on edge of bank and fell on hard clay. Slipped on textile on bank of sewerage work and fell on hard clay. Exhibit 16 11am 04/09/2000 19 – Other unspecified injuries 11/09/2000 E. Bianco First Aid Treatments Exhibit 6 10 – hips and legs 02 – Falls on the same level 11 – Outdoor environment 20/09/2000 M. Peers Workcover Incident Report Walking on crest of bank on geotextile. Walked on loose soil underneath, slipped and landed on right buttock and thigh Exhibit 7 20/09/2000 Dr Gray Foote Street Surgery reports 2 weeks ago at work in Sydney slipped and landed on right hip Exhibit 15 Exhibit B 52 20/09/2000 Dr Postle Medical Certificate Exhibit B 60 Fell at work on 04/09/2000 06/01/2001 Dr Grace Medical Certificate After fall into hole Exhibit B20 01/02/2001 Dr Moon Medical Certificate Exhibit B46 Fall down hole 22/03/2001 Dr Coyne Report Mr Peers gave a history of slipping and falling to the ground in his work in September 2000 Exhibit B 16 26/07/2001 Dr Atkinson Report He said at about 12 midday while working in Mittagong, he fell a distance of about 1 metre Exhibit B 1 17/06/2004 Dr Bodel Report He inadvertently fell into a 6 foot deep hole, adjacent to one of the excavations next to one of the ponds. He was on the top of the dam wall at the time and landed heavily on his right side. Exhibit B 8 09/10/2004 Dr Searle Report While he was at work on 04/09/2000 he fell into a trench, a drop of nearly 2 metres, landing on the right buttock Exhibit B 61 30/09/2005 Dr Stephenson Report He said that in September 2000 he hurt his back. He was working at Mittagong. He said he fell in a hole. Exhibit 2 10/01/2006 Dr Licina Report He was walking along at a jobsite and fell down a hole Exhibit A42 17/07/2009 Dr Dalton Report He fell into a 6 foot deep hole at work Exhibit 2 13.Peers was asked about the entries that appear in Dr Lewis's notes, the first aid document, the Workcover Incident Report and some of the other entries at TP 251-256. Essentially he agreed that if what was written there then that was what had been recorded. He asked rhetorically why would he want to hide anything? He maintained that he had fallen into a hole. The way in which some of the documents were filled in were, in any event, out of his control such as exhibit 6 and indeed there is no evidence he filled out any part of it despite the suggestion, not adopted, that he completed it. The maker of that document, Eddie Bianco, wasn't called to give evidence. 14.Peers has obviously built up significant skills in his chosen industry but is otherwise a fairly plain and straightforward individual. He left school at 15 and completed an electrical apprenticeship and has worked in a variety of industries and occupations such as bar work, deck hand and, in 1995, concreter until he moved to Western Australia and became involved with environmental linings for earthen dams, an industry he has remained in ever since. He has continued on, although in a different role, in the same industry and I accept that he has done his best to recount his memory of events that occurred nine years ago. 15.Whilst there are obvious differences of event recording as set out in the table above nonetheless, overall, I had a very favourable impression of Mr Peers as well as Mr Shepherd (Heideman), Mrs Peers and Mr Galbraith. 16.I also heard from Mr Ian Smith who was the Site Supervisor for Transfield and who now works for John Holland Constructions. One significant issue was the depth of these pipe pits which Ian smith says were excavated at the same time as the trench for the culvert sections. In chief, he said that the pip pits were 300 – 400mm shallower than the excavation for the culverts but in cross examination he thought that these pip pits varied from "roughly 700mm to 1.2 metres deep". He also conceded the pits were never barricaded and that if one was 1.2 metres deep it should have been barricaded. He also can really only remember actually inspecting the pipe pit in Pond 3. He agreed that his evidence in the previous proceedings to the effect that if Galbraith or Peers had fallen into one of the pits they would have broken plastic piping already installed, was wrong as there were no pipes in the pits at the stage that Beltreco would have been doing their particular work. Whilst he disagreed that the pipe pits that Peers and Galbraith fell into were ever deeper than the culvert trench, he could not say if they were as deep as the culvert trench. 17.The very clear evidence of Peers, Shepherd and Galbraith is that the pits that Peers and Galbraith fell into were at least as tall as Peers or Galbraith, and Galbraith was 1.8 metres tall. For reasons which will appear later, on the balance of probabilities I am satisfied that the relevant pits were lat least 1.5 metres deep and not "roughly 700mm to 1.2 metres deep." The fact of the matter is that Mr Smith is really unable to say, accurately, how deep those pits were. 18.It was put to Mr Smith and he agreed, that the culvert trench and the pipe pit were dug by a 20 tonne excavator similar to the excavator seen in exhibit A8. Mr Smith said that he did not see 100 percent of the culvert trench being dug and only saw one of the pip pits being dug. He did not agree with the proposition that in order to dig the pipe pit, the excavator was positioned at right angles to the trench. Smith says it was dug the same way as the trench, ie with the excavator moving backwards from West to East. Mr Smith agreed that there were no engineering drawings telling Select Civil how deep to excavate the pipe pits. He also agreed that the concrete outlet structure on the north side of pond 6, which can be seen in photo A14, was a dangerously deep structure that had not been adequately fenced. He also agreed that the pipe pits were never fenced with any bunting despite him admitting that he walked the site daily as part of his duties, one of which was to be on the look out for unsafe work practices. 19.The only "expert" witness called was a Mr Garito who was also the construction manager for Transfield at the Mittagong works. He provided a report and gave evidence. My concern after nine years and two trial proceedings is how much he actually remembers as opposed to how much is reconstructed from plans, photographs and experience. It is a criticism relative to all the witnesses being asked to remember events so long in the past, with the exception that other witnesses such as Peers, Shepherd and Galbraith do not appear to have had their recollections interfered with by documentation. 20.I found Garito's evidence at times difficult to follow and felt that he was reconstructing things as they should have been rather than as they actually were. He was reluctant to concede any factual matter that may have favoured the plaintiff's case, even when it was established that the factual bases of parts of his report and evidence were not correct. 21.He was first advised of Peers's incident by Eddie Bianco, apparently on 11/09/2000. He said Bianco advised him that Peers had slipped in a trench. He, Bianco and Peers then went and inspected the area. His evidence in this regard is at odds with what is recorded in exhibit 11, a Transfield Record of Injury Treatments. This document states "reported by Eddie Bianco 11/09/2000. Walking along batter of No 4 sludge lagoon (pond 6) on top of geotextile membrane and slipped and his left hip hit the ground." 22.One wonders, if this document is correct, why there was any need for anyone to go and inspect the area let alone the construction manager. There is an obvious disparity between the document and Mr Garito's recollection. Mr Garito says that at this inspection, there was both geotextile and HDPE in the hole and yet that cannot be the case because at the time of Peers fall, no HDPE had been laid on the Southern wall of pond 6, and that can be established from a dated diagram and the photos, particularly A8 above which was apparently taken on the same or the following day. 23.Indeed one apparent difference between Peers and his witnesses and Transfield and its witnesses is that, as far as the latter are concerned, there was nothing in Transfield's operation of this site that was likely to cause any risk to anyone engaged to work on the site. 24.Garito denied that the excavation for any pipe pit was deeper than 700 - 800 millimetres, which is contrary to the evidence of Smith, who says they ranged from 700 millimetres to 1.2 metres deep. Garito saw parts of the culvert trench being dug and one of the pipe pits. 25.At one part in cross-examination, he maintained that it was impossible for the pipe pits to be 1.8 – 2 metres deep because they had been dug out of crushed and compacted sandstone and such a medium would not allow so deep an excavation without support. However, he conceded that as for as the South wall, of lagoon 6 was concerned, the wall of the pond was not entirely composed of crushed sandstone but a substantial part was natural ground. 26.When his attention was directed to exhibit A 41 – "Design Relative Levels for Pond 6" – which showed that the Southern wall of pond 6 would not have needed 2 metres of crushed sandstone his response was, "You see, this drawing here is shown at one particular point. The rock level varies, so this is just telling one snippet at one location. Typically the rock would vary and you would have crushed sandstone to construct that southern wall but according to this drawing, some of that was existing, some of it was constructed with crushed sandstone" (TP 371.21) This seems to me to be another example of Garitos' reluctance to accede to a reasonable proposition posed by counsel. 27.Where their evidence differs, I prefer the evidence of Peers, Shepherd and Galbraith over that of Smith and Garito, having regard to their consistency and having regard to questions as to Smith's reliability, particularly in regard to details of the pipe pits, as well as the issues just referred to concerning Garito. THE PRINCIPAL ISSUES DID PEERS FALL INTO A HOLE OR DID HE JUST SLIP AND FALL OVER? 28.For me to reject the evidence that the plaintiff fell into a hole I would in effect have to disbelieve Messrs Peers, Shepherd and Galbraith. That is a serious issue and there is nothing inherently improbable in their evidence that would cause me to be reluctant to accept what they say. Shepherd and Galbraith no longer work with Mr Peers or for Mr Peers's previous employer. They are supervisors themselves on different projects in Western Australia and travelled to Sydney to give their evidence. I found both of them inherently believable as I did Peers and his wife. 29.The issue in regard to the recorded histories, such as they are, are difficult to reconcile, particularly exhibit 7, Peers's report of injury to his employer at the time. This document is dated 20/09/2000 and yet evidence from Mr Garito was that as at 11/09/200 he had been made aware that Peers had slipped and or fallen into a trench. What is stated by Peers in exhibit 7 is factually correct except that he has omitted the part of falling into the hole. However, I am satisfied that in fact Peers did fall into a hole and that the hole in question was the pipe pit. The differing histories written down by others may be reflective of difficulties in communication and lack of understanding. As far as the form exhibit 7 is concerned, I refer to my earlier remarks as to my impression of Peers. 30..In order to resolve a factual issue of this nature, to rely solely on written records is likely to lead to error because of the false presumption that such documents will necessarily be correct and totally inclusive of the detail of what they record. In that regard Transfield placed a lot of reliance on exhibit 6, which is a Transfield form completed by Eddie Bianco, who hasn't been called to give evidence, in which information as to what occurred is determined by checking off the most appropriate of a list of given choices. The "mechanism of injury" box requires the person who completed the form to choose from 22 options. The first two are (01) fall from height; (02) falls on same level. The choice made was (02). It is argued that this is further indication that Peers simply slipped and fell over. However, I don't agree that is necessarily so, because in one sense Peers did fall on the same level as opposed to a fall from the first floor of a construction, or off the top of a truck. I am not convinced that the documentary material referred to is sufficiently detailed and accurate to permit me to reject Peers and his witnesses as to what actually happened by comparison with what has been written down about what happened. HOW DEEP WERE THE PITS? 31. The most factually controversial issue is how deep were these pipe pits. There are differing views of exactly how deep they were and more particularly, how deep the one was that Peers fell into. On the one hand Peers, Shepherd, and Galbraith place them as at least 1.8 metres deep whereas Smith and Garito say they were not as deep as the culvert trench. Mr Polin argues that it is improbable that the pipe pits were dug deeper than the culvert trench as this would tend to undermine the culvert and that the culvert trenches were excavated to a maximum depth of 1.47 metres having regard to the site plan and expert reports of Mr Henstock and Dr Rodman, exhibits C and 2 respectively. Both sides have contested the issue by trying to get the pit deeper than or shallower than 1.5 metres because of a statutory Occupational Health and Safety requirement for excavations deeper than 1.5 metres to be fenced. A breach of such a statutory requirement would relieve the plaintiff of concern for any contributory negligence on his part. 32.The culvert trench was excavated to a depth to allow a concrete culvert section to be placed inside and levelled so as to be able to join with other laid concrete sections. This meant the trench was dug deeper than the measurement of the concrete section to enable 115mm of sand and mortar to be laid to provide a firm level bed for the section. 33.On the one hand of course, perfection reigned in this construction site in that nothing was done that was not in accordance with the plans and specifications and care for the safety of personell on the site. Mr Polin suggested in submissions, that a possible reason as to why Peers and Galbraith may have misjudged the depth of the hole they fell into may have been the fact that spoil from the unfilled anchor trench may have temporarily raised the surface of the ground surrounding the hole or in the vicinity of it. He acknowledged that this had not been put to any of the witnesses. 34.On reflection, I doubt that this suggestion, reasonable as it is, should play any part in my deliberations for this reason: - at the time of the two falls, Beltreco was in the process of lining the ponds. That would have required removal of any soil from the anchor trench and surrounds so that the geotextile material and HDPE could be laid on a relatively flat and regular surface and then into the anchor trench. It was only after the geotextile and HDPE had been laid in the anchor trench that the trench was backfilled. It seems unlikely therefore that there would have been any spoil in the area where the falls occurred. 35.I agree with the defence submissions that the pipe pit was unlikely to be deeper than the culvert trench, because that would create structural and support problems from the concrete culvert sections. However, I also doubt that the culvert trench was dug to millimetre accuracy, especially in the vicinity of the pipe pit, which according to Smith and Garito, was excavated at the same time by a 20 tonne excavator seen in the various photos above and in exhibit A6–18. Both Peers and Galbraith say that when they stood up in the pit after falling, the ground level was at head height. Mr Shepherd said that Galbraith's head was below ground level when he fell into the pipe pit and stood up. 36.There are no design drawings produced in evidence as to the dimension of the pipe pits. If, as seems to be accepted, the pits were excavated by the 20 ton excavator, I think it more probable than not that the pipe pits were excavated to at least the depth of the Culvert trench. There is no evidence that the operators received special instructions to only excavate to a depth less than the culvert trench and it seems to have been an awkward operation in any event, being out of line with the culvert trench. Apart from anything else, whilst I accept that there was no design drawing to have pipes coming out of the base of the concrete culvert sections, I don't see it as improbable that Peers may have been told that pipes were to come out of the bottom of the sections. The photo, exhibit A35 (below), which is of the completed installation at the South end of lagoon six, has several pipes going into the bottom half of the side wall of the concrete culvert section. The holes for such pipes had to be cut through the side of the concrete culvert, which of course would require a reasonable access space in order to manipulate some sort of power tool. 37.Both Garito and Smith said that in order to excavate the pipe pit, the excavator simply swung the arm to the right, off-centre, and dug out the pit. Garito agreed that this would mean that the pit would be excavated at an angle but suggested that it was then excavated by hand to a rectangular shape, although there is no evidence to support any hand excavation occurring. 38.There are two independent expert reports from Mr Henstock and Dr Rodman. Mr Henstock visited the site after the works had been completed. Dr Rodman did not and was working off plans and photos. 39.Dr Rodman said the external dimension of the concrete culvert sections were a depth of 1.36 metres and a width of 1.394 metres. It is the depth of the sections that is important. Dr Rodman incorrectly found the base thickness of the sections to be 160 millimetres. However, that is neither here nor there, because in his report the culvert was 1.36 metres deep which included the thickness of the base. Mr Henstock measured the inside depths of the culvert on site and found it to be 1200 millimetres. That accords with Dr Rodmans's internal measurements and Hume's factory dimensions. Mr Henstock had the correct base thickness of 125 millimetres which, added to 1200 millimetres provided a total depth of 1.325 millimetres as opposed to Dr Rodmans's depth of 1.360 millimetres ie a difference of 35 millimetres. Mr Henstock got the trench bedding layer depth incorrect at 150 millimetres whereas Dr Rodman had the correct depth of 115 millimetres. To this Dr Rodman added 100 millimetres for over excavation likely to occur by use of an excavator such as was used on this site. Using the correct dimensions, the figures relative to Mr Henstock's calculation as to minimum depth of the culvert trench excavation is 1.540 metres made up of 1200 millimetres plus 125 millimetres plus 115 millimetres plus 100 millimetres. The same calculation using Dr Rodman's report is 1.575 millimetres made up of 1.360m plus 115mm plus 100 millimetres. The difference in calculation is thus 35 millimetres. 40.I stress that Dr Rodman's depth of 1.360 millimetres is an overall external measurement obtained from the manufacturer which is supported by Mr Henstock's internal measurement plus the thickness of the base. 41.I therefore disagree with Mr Polin's calculations made in submission and I find as a fact that the culvert trench was excavated to a depth of at least between 1.540 and 1.575 metres, if not more, given the mechanics of how the pipe pit was dug in association with the culvert by the excavator. I am therefore also satisfied that the pipe pits were at least of the same order of depth. 42.The fact that Dr Rodman got the thickness of the base wrong does not affect his overall calculation given that he was using external dimensions. I also find that it is more probable that not that the culvert trench was over excavated rather than under excavated because the relative level of the concrete sections can be more easily corrected by adding more sand and or mortar rather than removing the culvert section and carrying out further excavation. 43.So that apart from Mr Smith's concessions that the pits should have been warned against in some way anyhow, I find that they were required to be fenced by virtue of Regulation 73(8) of the Construction Safety Regulations. WHOSE SITE WAS IT? 44.In any event, I doubt whether the statutory breach makes a significant difference to the outcome because, apart from whether any contributory negligence has been established, there is an issue as to who was responsible for the site at the time Peers fell. 45.It is argued that the site was handed over to Beltreco by virtue of the fact that some sort of sign-over process had occurred prior to work commencing by Beltreco and by some evidence to the effect that until Beltreco had finished, other personnel, contractors or tradesman were excluded form the area in which they were working. The site was therefore Beltreco's and if anyone had a responsibility to guard against someone falling into the hole it was Beltreco's. 46.Mr Polin argued "…. even if Transfield did put some barricades there before they started work, to lay the geotextile fabric, they have to move the barricades. You then have the geotextile fabric into the hole and the suggestion they have control of the site and no-one else should come onto that geotextile fabric. If there's going to be a barricade and if anyone is to be criticised, it's Beltreco. I'd submit in those circumstances your Honour, it's not reasonable to have expected Transfield to have fenced or barricaded this hole, initially. It's not reasonable for them to have been required to be part of some program of removal, whatever the barricades were, removal, taking them apart, putting them back up, as and when Beltreco needed it to be done. The position is that once Beltreco took over that particular area, it was theirs. They were aware the hole was there, they could go and look at it, knew the size, they could make whatever plans they needed to make around it in terms of doing their work, but it was theirs. It's not for Transfield to have dictated to them in accordance with Leighton Contractors v Fox principles, how they should have gone about doing their work, after it's been brought to their attention that it's there, they've got to deal with it. My submission is that essentially that is the end of the matter." 47.I find that extremely difficult to accept either as a matter of fact or of law. Transfield was not handing over possessions or ownership of the site of the ponds it was simply indicating that it, through its subcontractor Select Civil, had prepared the site to a degree of practical completion that would allow Beltreco to commence what it had contracted to do. Beltreco had no control over works done by others. Beltreco could not interfere with such works without some agreement or concession on the part of Transfield. Any hand over of the site was simply to enable Beltreco to get on with what it was contracted to do which did not include carrying out any excavation other than the relatively shallow anchor trench. Transfield still retained over all control of the whole site. 48.In a recent Court of Appeal decision (Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 303) Young JA said:- "5. Secondly, I cannot let the decision in this case pass without commenting on the submissions made by counsel for the respondent as to the nature of a builder's 'possession' under the common building contract. 6 The builder in no sense has "possession" of the relevant land in the sense of having the exclusive possession of a lessee who may exclude others. 7 The authorities clearly state that the builder has a licence to occupy the site or perhaps so much of the site as is required for the building work to be effected. 8 In Joshua Henshaw and Son v Rochdale Corp [1944] KB 381 at 389, the English Court of Appeal said: "The plaintiffs (builders) had not possession of the land. Their only right was in the nature of a licence to enter on it to execute the works in accordance with the contract…" The situation in regard to Beltreco vis a vis Transfield is, in my view, analogous. 49.The tortious liability of principles in regards to malfeasances between subcontractors was the subject of the recent High Court case of Leighton Contractors P/L – v – Fox & ors 2009 HCA 35. That case confirmed that there is no duty of care imposed on principals for the benefit of independent contractors engaged by them of the kind they owe their own employees. However, it may be the case that in particular circumstances, a principal will come under a duty to use reasonable care to ensure that a contractor is safe. That, it seems to me, is to state no more than that a principal has a duty to a subcontractor to take reasonable care for that contractor's safety as a "Donoghue v Stephenson" neighbour, but there is no vicarious liability. The court referred to what Gummow J said in RTA – v – Dederer where his Honour said that all duties of care are to be discharged by the exercise of reasonable care. A more stringent or onerous burden is not imposed whatever the scope of the duty may be. 50.As pointed out in submissions, the factual situation in the present case is far removed from that in Leighton – v – Fox. As I understand, Transfield's argument, it says that as it had landed over that part of the site to Beltreco, the whole or majority of the responsibility for the safety of the workers was the responsibility of Beltreco who, it is argued, in effect did nothing to ensure their worker's safety. They appointed, apparently without his knowledge, Mr Shepherd as Beltreco's Occupational Health and Safety (OH&S) representative for the site. Mr Shepherd said he had no relevant OH&S training or experience at that time (see exhibit 8). Transfield tendered a number of forms in exhibit 4 headed "Sub Grade Surface Acceptance." Two documents dated 05/08/2000 and 01/09/2000 relate to ponds 5 and 6 respectively. The comments in regard to Pond 5 were "surface good but trench edge south end a bit rough where trench was dug for culvert" and in regard to pond 6 "finished to a good surface." To impart more into these documents and the procedure other than a sign off by Beltreco that they would accept the surface as ready for them to do their work, in my view, cannot be justified. As Mr Smith for Transfield said in chief, "the purpose of the inspection was that Beltreco was satisfied that the area was good enough to take his product." (TP 320) 51.Regulation 73(8) provides that it is permissible to remove a guard rail or part thereof to carry out necessary works in the area. One argument is that it was necessary for the pipe pit to be unguarded because Beltreco was working in the area. However as can be seen from the above photo in particular, the ponds are very large and Beltreco's workers would only be in the vicinity of the pipe pits for a relatively short part of their work. At the time of Peers's incident, the geotextile had been laid out but Shepherd and Galbraith were still at the bottom of the pond working, much as depicted above. 52.Peers was walking along the Southern wall of the pond talking to Shepherd and Galbraith and giving them instructions. The whole purpose of guarding or fencing the type of excavation in question is to prevent exactly the type of accident that occurred to Galbraith and Peers. It is difficult to see why the hole could not have been temporarily covered with some builders five ply formwork or the like or at least fenced off with star pickets and bunting or removable barricades such as are often used on road works. 53.Whilst I accept that the Beltreco employees knew the excavation was there, I doubt if it was continually in the forefront of their minds, except perhaps when they had to work in the close vicinity. It is precisely for reasons like this that the regulation exists and why, apart from the regulation, the law of tort imposes a duty of are to act reasonably, bearing in mind, especially in an industrial situation, that there may be momentary lapses of attention. 54.Evidence has been tendered in the form of Workplace Inspection Reports for 20/07/2000 (exhibit 12) and 25/08/20-00 (exhibit 13). In particular, a box which says "Are excavations adequately fenced?" is ticked "Yes". There is a qualifying remark for 25/08/2000 by use of the words "At night" an expression that has not been really explained, apart from the fact that the whole site was secured at night. As far as can be determined from exhibit 13, the workplace inspection was carried out by Mr Smith and Mr Garito. Mr Smith in cross-examination agreed that bunting had to be put up around excavations and should only have been removed when people were working around the excavation and that excavations which had some danger had to be fenced, even during the day when workers were there. (TP 325) 55.It is argued that if these pipe pits were of the dimensions Peers suggests, why did he not say something about it to Transfield or Select Civil at the site handover? Peers was a young man aged 28 as at the date of the accident. Mr Smith, at least, was many years his senior and Mr Garito was a qualified civil engineer as well as being an older man. I don't know anything about the Select Civil personnel. The fact is, 9 years after the event, we know little of what really happened at these hand-overs. However the fact, if true, that Peers said nothing at the time, does not relieve Transfield or Select Civil of liability. I can imagine many reasons why the issue of guarding those excavations was not at the forefront of Beltreco's or anyone else's mind at the time of the hand over, apart from the fact that before the work started they were not an immediate danger. 56.Select Civil are a party to these proceedings although they have not appeared or had any forensic role. They are a co-defendant and Transfield has issued a cross-claim against them but they have not filed a defence to either claim. Apart from the fact that they were apparently the subcontractor engaged by Transfield to do the earthworks for the ponds, the evidence is singularly silent as to what their day to day activities were or their responsibilities under any contract. However it is difficult to see on the information I have that they would have any responsibility for how these excavations were treated once they had carried out their contractual obligation. They were not required, as far as I know, to carry out any additional work other than to excavate where necessary and form the pond walls to an acceptable smoothness and construct the culvert trench and the pipe pits. It seems to me that once that had been done, any additional responsibility they may have had, would revert to Transfield. Were they, I ask rhetorically, expected to guard the excavations they had been asked to make, in the absence of an obligation to do or perform any other works? 57.Mr Polin's argument as to the liability of Select Civil is that "the plaintiff's expert says: "Ultimately any obligation to barricade was the responsibility of the excavation contractor, Select Civil. Select Civil shouldn't be given any, … indulgences or favours for choosing not to appear, I understand they're not here to put up evidence against anything put against them, but that's a decision obviously they're made for whatever reason. … But my position is that that assertion is made by the witnesses and certainly by the expert witnesses that if it is an issue of barricading, it was the responsibility of the excavator, and bear in mind Transfield had very limited presence on this site. The work was all being subcontracted to the various parties." 58.Apart from the fact that the issue is not one for the expert, Mr Henstock, to decide but for the court, I doubt whether the proposition is correct. The fact, if true and there is no evidence of this, that "Transfield had very limited presence on this site", does not somehow relieve them of responsibility. There is no evidence before me that would enable me to find that Select Civil bore any responsibility for the excavations in question once they had been dug. The fact that an occupier hires someone to carry out excavations on its property does not relieve the occupier of liability to a third party for those excavations once that work has been completed. The circumstances that apparently existed here during the excavation of the culvert trench and pipe pit would tend to render any temporary liability Select Civil may have had in regard to any excavation, otiose as far as Mr Peers was concerned. There was no sufficient close and direct connection between Select Civil and Mr Peers for him to have been a neighbour within Lord Atkin's statement of the principle (cf. Sydney Water Corp v Turano 2009 HCA 42 @ par 53). But the same cannot be said vis a vis Transfield. There is no evidence as to how long before Peers fall, Select Civil had dug the hole in questions. Beltreco engaged its own contractor to dig the anchor trench and back fill it so that work was not a responsibility of Select Civil. The fact is that Transfield required the pipe pit to be an excavation until it had completed the necessary works in that location, such as the installation of pipes and cables, that would then allow the pit to be backfilled and capped with a concrete slab, as seen in Exhibit A35, and thus they were responsible for any excavation not reasonably and adequately guarded. 59.In those circumstances I have great difficulty in being satisfied on the balance of probabilities, that Select Civil has any provable liability. SECTION 151Z OF THE WORKERS COMPENSATION ACT 60.This section has been pleaded. Peers received workers compensation payments form his employer as a result of sustaining injury whilst at work. As referred to above, Transfield argues that the employer must bear some responsibility for their workers injury. 61.However, the law does not provide that if an employer/employee relationship is in existence, the employer is automatically guilty of negligence caused by a third party to the employer's employee. (Harrison v Lau Nominees Pty Ltd (2004) NSWCA 18 at 10). Beltreco may have been required to develop and maintain a methodology or system which would ensure that Mr Peers could carry out his work in a safe manner, (see Andor Transport Pty Ltd v Brambles Limited (2004) HCA 28 at 54). The question to be asked in each case is what it was the employer is supposed to have done or not done to reasonably avoid the risk of injury to an employee. 62.Injury in the workplace does not automatically mean that there has been a failure by an employer or a subcontractor to provide a safe system of work. (see Procrane Pty Ltd v Knobbs (1996) NSWCA unreported 407777 of 93, 15 November 1996). 63.The responsibility for proving a liability on the part of Beltreco rests with Transfield. At best Beltreco, as Mr Peers' employer, owed him a non-delegable duty of care. (see Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) NSWCA 99 at para (22)). Perhaps Beltreco should have instructed Mr Peers that if he encountered site conditions that involved risk to him, he should notify Beltreco. On such a basis the trial judge in Pollard, thought that the employer was twenty per cent responsible and that percentage was not upset on appeal. In Pollard at para (61), McColl JA said, "A system that enabled the employee to report the risk to his employer and seek its assistance was a moderate requirement in the circumstances." Whilst I accept this proposition, the question to be asked is even if that were the case here, would it have made any difference in the particular circumstances? 64.Mr Polin made this submission:- "I've given you there a decision of Watts v Boral (sic Boral Resources (NSW) Pty Ltd v Watts 2005 NSWCA 191) which is a case, … where Mrs Watts was employed by a labour hire company but was working on a Boral site or quarry and as part of her job she had to drive up and down within the quarry which is on dirt roads and from time to time there would be boulders, … on the road and the question is getting the truck past the rock and the like and what she ultimately did was, … that she got out of the truck and moved the rock, and the question was, you know, whose responsibility was it for having the rock there and not training her and the like. If your Honour just in terms of that, goes to … page numbered 18 where the Court of Appeal refer to and accept, … the trial Judge … where he said this: "The the employer, did virtually nothing to protect the plaintiff from the injury that she suffered or the risk of injury that she suffered. There is no evidence called by the cross-defendant, there is no evidence that the cross-defendant was aware of the system of work in place, there was no evidence that the cross-defendant even inquired as to whether workers were expected to, on their own judgment, physically move heavy rocks. The employer cross-defendant seems to have taken the attitude of it could discharge its duty to the plaintiff by virtually doing nothing and abdicating its duty to the defendant who is on site." 65."And … the liability of the employer (was assessed) as 40%. Now, if one just looks at that, you could ask exactly the same sort of questions one would have thought here. I mean, there is really no evidence that Beltreco has done anything. There doesn't seem to be any evidence of any communication of an incident with Mr Galbraith back to Beltreco. There is nothing suggesting that Beltreco had anything formal in place. It's clear, it must be clear, that at some stage Beltreco had the plans of this site, they would have had to quote on the job and the like, they must be aware that at the time Beltreco was there, there was going to be not only the holes for the dam, there are going to be excavations for culverts, there's going to be all those sorts of things, yet there's nothing - and bear in mind we've had three Beltreco people give evidence in this case, nothing at all about what Beltreco did in terms of attempting to protect their employees at this particular site, absolutely nothing at all. My submission, your Honour, is that this is a case that would call for in fact a reversal of the figures in Boral, that in fact if one is to look at the liability of Beltreco in relation to Transfield, where Transfield has handed over essentially control of this area to Beltreco, the reverse assessment would apply and that is Beltreco would have a liability of 60%." 66.Mr Russell SC for Peers submitted that:- "It is conceded that if section151Z applies, then Mr Peers would not have recovered any damages against his employer because he could not get over the necessary threshold. The court would then embark upon apportioning blame between Transfield and Beltreco, and, in effect, the damages of the Plaintiff would be reduced by the proportion of blame attributable to Beltreco. However, the Plaintiff does not concede that Beltreco would have had any liability if sued. The Amended Defence sets out the following particulars of negligence alleged against Beltreco: "(a) failing to provide the Plaintiff with a safe place of work; (b) failing to provide the Plaintiff with a safe system of work; (c) failing to adequately supervise the Plaintiff,' (d) failing to take any or any adequate precautions for the safety of the Plaintiff,' (e) failing to properly instruct the Plaintiff" 67."Would the Plaintiff have succeeded in a common law claim for negligence against Beltreco, if he could have satisfied the damages threshold? It is submitted that none of the particulars would have been made out and he would have failed. The obligation to provide a safe place of work fell upon Transfield. Beltreco was a contractor which came to the site for a restricted purpose. Transfield handed over parts of the site to Beltreco once they were judged suitable by Transfield. This is not a case, such as the labour hire cases, where a duty would have been imposed on Beltreco to come out to the site to assess its safety. The system of work which the Plaintiff followed, has not been shown to be an unsafe system. What was unsafe was that Transfield allowed its site to be a danger to the Plaintiff. It could not be suggested by the Plaintiff against Beltreco that it could have come out and supervised him. He was the supervisor. We are dealing not with an unsafe system of work case, but with a momentary lapse in attention by the Plaintiff, if he has any fault at all." 68."It could not be suggested that Beltreco should have had someone on the site looking over the shoulder of Mr Peers (and all the other employees), to see that every footfall they took was safe. Finally, it cannot be suggested that there was any failure on the part of Beltreco to instruct the Plaintiff. This is not a case such as those where an inexperienced person is sent to a dangerous factory without adequate training, by a labour hire company. The fundamental pre-condition for the enlivenment of s.151Z is therefore not made out. Mr Peers, if he had sued Beltreco, would not have succeeded in establishing a breach of duty of care. One only has to contemplate the notion of Mr Peers suing Beltreco to dismiss such a notion. No lawyer would have contemplated advising Mr Peers to sue Beltreco as there was clearly no liability on the part of the employer. In those circumstances, there is no reduction for s.151Z, as s.151Z does not come into play. In the alternative, it is submitted that in apportioning liability between Transfield and Beltreco, regard has to be had to the gross and prolonged negligence of Transfield, as compared with any negligence of Beltreco which would have been minimal. It is submitted that the Beltreco liability, if it existed at all, would have only been between 5% and 10%." 69.In my view, much of what has been said as to Beltreco's liability in this matter has been said without there being much evidential support for it. Beltreco is not a party and does not have to prove anything. Transfield has the responsibility for establishing some degree of liability on Beltreco by the introduction of positive evidence to that intent. The situation in regard to Mr Peers is substantially different to the situation that pertained in Boral Resources referred to above. One criticism levelled at Belreco by Transfield is that they, apparently, appointed Mr Shepherd as its site safety officer although his evidence, nine years after the event, is that he was not aware of that nor did he have any relevant OH&S experience. Beltreco has been taken over by another entity in the meantime and there is no substantive evidence that an entry that appears on a piece of paper, (ex 8 – which refers to him as Q&A (quality and assurance) and OH&S), was in fact the true situation. All that has been done is to tender the document and ask a former employee a question in circumstances where Beltreco or its successor in title is unable to make any response at all to the proposition. In any event I am not satisfied that such a circumstance as this in particular, is evidence of any relevant negligence. 70.Additionally, as Mr Russell SC said in submissions – "in a case like this, in my submission one would've expected that the defendant could have called evidence from an expert of some sort, as to the appropriate procedure to be followed by Beltreco when sending people out to site, that it would've been standard practice or prudent practice for Beltreco to go out there ahead of time and make their own safety assessment of the site, no evidence is called of that. You are just asked to infer somehow that they should have done that. But even if you can say Beltreco would've or should've gone out there, what would Beltreco have found by an initial inspection? Before Beltreco started its lining work, were the pipe pits there?" 71.In Vairy v Wyong Shire Council 2005 HCA 62 Gumow J said "The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. … The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective". I do not know what the evidence was in Boral Resources that permitted the trial judge to say what is referred to above. Nor, it seems to me, is an actionable duty of care enlivened by the absence of a reporting mechanism, such as was the case in Pollard, without going the step further and asking had the employer been notified what, as a matter of reasonable practicality, could it have done to prevent what in fact occurred? Had such a mechanism been in place, it is reasonable to expect that a conscientious employer would have insisted with Transfield that such excavations be protected of fenced in some way so as not to be a danger to their own employees? Even though they were in another state Beltreco could have taken steps to ensure what the situation was from time to time by requiring their employees or a representative to keep them up to date with conditions on the job. There is no evidence one way or the other to suggest whether or not that was done, but even if it wasn't, would it have been likely to have causally contributed to the incident in question? I am satisfied that Transfield bore the predominant responsibility and had the staff on site on a daily basis to ensure that adequate safety mechanisms were in place. Further I am not satisfied that any relevant negligence on the part of Beltreco has been affirmatively established on the balance of probabilities. If I am wrong in that regard I would not regard there liability as any higher than ten percent. CONTRIBUTORY NEGLIGENCE 72.Regardless of my findings in regard to the statutory count, I should deal with the question of contributory negligence, because it may be regarded that in any event, although there was a statutory breach, the breach was of such a minimal nature as to not warrant practical consideration. Some reliance is placed on a case of Canterbury City Council v Taylor and ors 2002 NSWCA 24. That was a case where Taylor sustained injury when he collided with a person who had, apparently, absented mindedly walked onto a velodrome track from a football match being played on the centre football field. The issue was whether the footballer, who was sadly killed in the accident, was negligent in walking onto the track. The trial judge said he wasn't as his conduct had been "mere inadvertence, inattention or misjudgement". Ipp JA said that the danger was so obvious and extreme that the deceased's conduct could not be described in that way. Having found the deceased's conduct careless, the trial judge should have categorised the deceased's conduct as negligent. His Honour had earlier said that the paramount factor in regard to this aspect of the case is the obviousness of the very serious danger posed to touch football players by the cyclists who were circling the (field on) the track. 73.As I have found above, I am satisfied that Peers knew of the existence of the pit and would have appreciated the danger it posed. However the factual circumstances of this danger are far different to the nature of the danger posed in the Canterbury City Council case. In any event that case was concerned with the existence of any negligence at all on the part of the Council, not the degree to which the deceased may have contributed to the situation. A finding of momentary inattention constituted enough negligence to make the council liable, at least prima facie. However I do not see this case as authority for the contrary proposal that a momentary lapse of attention will always result in a finding of contributory negligence on the part of an injured claimant. Depending on the circumstances of the particular case such a finding may not be warranted. 74.Of course Mr Peers has an obligation to take reasonable care for his own safety. Whilst he is not expected to go around constantly looking at the ground, he was on a construction site, where the chances of unevenness and objects lying around is likely to be greater than if he was walking along the street. In those circumstances he must take some responsibility for not looking where he was going, although I would assess contributory negligence at a low order of ten percent. 75.Having regard to the foregoing, there will be a verdict for the plaintiff. DAMAGES 76.There are two principal disputes as to Peers' injury status. The first relates to what actually occurred to Peers in the fall and the second relates to the consequences for the future. Peers' single sustaining injury was to his spine. 77.Only two non-treating doctors were called, Dr Searle an orthopaedic surgeon and Dr Dalton a rehabilitation physician. Dr Searle has seen Peers three times on 9/10/04, 20/5/06, and 24/6/09. Dr Dalton saw him once this year. 78.Criticism can be levelled at Dr Searle's' pessimistic view of Peers' injury and disabilities which was not really supported by a recent MRI and other medical evidence. Dr Dalton's views as to the aetiology of Peers'; disabilities I found difficult to comprehend in light of Peers' history. He felt, without their being any objective evidence in support, that Peers probably had a pre-existing L5/S1 disc disc lesion, on the basis of his complaints and symptoms shortly after the event. He also, it seems to me, tended to be prepared to find other explanations for Peers' signs and symptoms, other than the fairly obvious connection between Peers' severe fall and his subsequent symptomatology when, despite a heavy manual work history, Peers had not suffered any problems with his back before this event. Whether it matters in the long run is debateable. A defendant takes a plaintiff as he finds him. 79.Over the years Peers has been treated by a number of specialists and has been seen by a number of medico-legal specialists 80.Dr Weidmann, a neuro surgeon, said that lumbar disc herniations were largely degenerative but that trauma provokes symptoms and it was likely that Peers would have developed symptoms at some time but as to when was most speculative. 81.With the exception of Dr Dalton, most other doctors, accepted a causal connection between Peers' fall and his L5/S1 invertebral disc prolapse. 82.Dr Dalton felt that it was more likely that not a pre-existing symptomatic condition that had become painful because of the fall. Whilst he argued persuasively toward that point of view in evidence, I had difficult in understanding the logic of how he came to the conclusion that his diagnosis was more likely than the weight of other diagnoses. Overwhelmingly, I am of the view, given Peers' previous lack of symptoms, heavy manual work history and the medical opinion of the practitioners who have seen Peers on more than one occasion, that Peers' L5/S1 disc prolapse was caused in the fall on 4/9/00. However, as was pointed out by Mr Polin, in the long run it probably doesn't substantially matter because Peers' previously asymptomatic condition has been rendered symptomatic with the same end result. Nevertheless, I am satisfied on balance, that the L5/S1 disc prolapse was caused by Peers' fall. 83.The second major point of dispute is Dr Searle's' contention that Peers will not be able to usefully work beyond aged about 50. Dr Searle is alone in this view. No other doctors suggest that Peers will be so disabled by age 50 that he could no longer work. Indeed the general consensus is that an appropriate and targeted regime of exercise coupled with a sympathetic working environment would assist in keeping Peers mobile and able work reasonably productively but with restrictions. Dr Bodel and the Gregory Terrace Rehabilitation physiotherapists felt that while well motivated, Peers needed to lose weight and exercise but that without a structured program, this would be difficult. 84.Dr Searle's opinion that Peers would have to retire at age 50 was based on his concern that despite the intervention by Dr Licina, he was likely to suffer further prolapses of the disc. However, Dr Searle was not provided with an MRI carried out on 18/06/09, the report for which concluded that there was no residual or recurrent disc protrusion or neurocompressive lesion, or epidural fibrosis detected. Dr Searle in evidence said that he had not seen the actual MRI films or, until the hearing – the report, and thus he would not necessarily agree with the radiologist's interpretation without seeing the films for himself. Regrettably the films do not appear to have been provided to any of the medical professionals and I would agree with Dr Searle, that the most appropriate person to comment on what is on an MRI is the specialist overseeing practitioner. However, that may be, there is no evidence at this stage of any further physical deterioration in Peers's L5/S1 disc and having regard to the other evidence referred to, I am not satisfied that Peers will be forced to retire about aged 50. However, I otherwise accept Dr Searle's evidence and prefer it to Dr Dalton's having regard to the number of times he has seen Peers, his orthopaedic specialty and his very long and practical experience of dealing with problems similar to Peers'. 85.Peers' first treating specialist was Dr Atkinson a neurosurgeon who he first saw on 25/07/01. Dr Atkinson found Peers to be suffering a L5/S1 disc injury with sciatica consistent with a fall and which was a significant contributing factor. He favoured treatment by physiotherapy and found Peers was unfit for labouring work. He was reviewed on 9/8/01 with no change but at a significant risk of further damages to the disc. He recommended 2 weeks rehabilitation which was undertaken. A final review on 21/2/02 resulted in a guarded prognosis although he had reached maximum medical improvement. He felt it important that Peers should exercise and lose weight. 86.Another neurosurgeon Dr Coyne saw him on 25/3/01 with a CT scan demonstrating a right L5/S1 small to moderate disc protrusion in the proximity of the right S1 nerve root. He also felt that there was a relationship between his condition and his workplace injury and, like Dr Atkinson, felt he was best managed conservatively. 87.The next specialist he saw was Dr Bodel closely followed by Dr Searle, both orthopaedic surgeons. These were medico legal consultations. He has continued to see Dr Searle up until the present but last saw Dr Bodel in 2004. 88.In his initial report Dr Bodel said that he suffered a L5/S1 disc rupture as a result of his fall at work on 4/9/00. He found Peers's complaints were genuine and his prognosis was guarded. He didn't think Peers' condition would necessarily worsen but it was distinctly possible he would have intermittent severe recurrences of back pain and disability. Unfortunately, although Dr Bodel provided a report in September 2006 he had not seen him since 17/06/04 and was unaware, apparently, of the 2006 discectomy. Whilst Dr Bodel felt he was restricted in regard to manual tasks, he could do supervising work without involving a lot of bending, twisting, or lifting. He still felt that Peers should remain as mobile as possible 89.Dr Searle saw Peers on 9/10/04. He found a large L5/S1 disc protrusion, mainly on the right side. He had a somewhat gloomier prognosis for continuing deterioration with the possibly of surgery being probable, a situation that in fact came to pass. 90.Peers in evidence said that after some conservative treatment and a short course of rehabilitation his symptoms did improve somewhat but by 2006, the situation was so severe that he consulted Dr Licina who found a large L5/S1 disc prolapse compressing the S1 root. It was proposed that he have a discectomy because there was a 90% chance that such a procedure would at least reduce his buttock and right leg pain. The operation was carried out in January 2006 with the S1 nerve root being decompressed and retracted. Peers experienced immediate relief of his right leg sciatic pain although it has subsequently slowly returned. 91.Dr Dalton regarded Peers's improvement prior to 2006 as further evidence to support his theory that the work injury merely exacerbated a pre-existing condition and that his increasing pain requiring discectomy was unrelated to the accident and was something likely to have occurred anyhow. I reject that opinion standing, as it does, virtually alone in all the medicine that has been tendered or called. 92.Dr Searle saw Peers again on 20/5/06. At that time he felt Peers was developing indications of a recurrence of the disc protrusion, although a recent MRI report now says otherwise. He last saw Dr Searle on 24/6/09 but regrettably the MRI was not available. Dr Searle also found Peers to be suffering from a condition referred to as "neuralgia paresthetica" in the left thigh, a sympathetic condition that occurs frequently with L5/S1 disc injury. 93.The 2009 MRI report of Dr McKenzie from the Frankston Private Radiology says in part that "the L4/S1 disc shows dessication and mild annular disc bulge but no focal disc protrusion. The L5/S1 disc shows dessication and annular disc bulge and there is a slight area of irregularity at the site of the right posterior paracentral micro-discectomy but no residual or recurrent disc protrusion is detected. There is no abnormal epidural fibrosis or post-operative enhancement detected." Unfortunately the films of the MRI were not available to be shown to anyone and I would agree that, as far as Dr Searle is concerned, he would be in a better position to comment on them than Dr McKenzie, having seen Peers over a number of years. Dr Searle said at TP149 in cross-examination that" some of the terms used (in the McKenzie MRI report) are relative and mean different things to different people and he has described a bulge at both levels. Whether he calls it a bulge and I call it protrusion is another matter." 94.In the medical evidence folder, there are four radiological reports, respectively dated 21/09/00 being a CT scan, 27/07/01 being a CT scan, 5/07/05 being a CT scan and the McKenzie MRI of 18/6/09. 95.The relevant parts as far as they effect the L5/S1 area are set out as follows: a. – 21/09/00; "At the L5/S1 level, there is a large right paracentral disc protrusion which is having moderate mass effect on the right anterior aspect of the theca and on the origin of the right S1 nerve root. This would correlate with the patient's symptoms." b. – 27/07/01; "There is a broad based posterior disc bulge/protrusion which is slightly more prominent to the right of the midline. This causes mild compression of the thecal sac and mild posterior displacement of the S1 nerve roots." c. – 5/07/05; "Both L5 nerve roots exit adequately. There is right paracentral disc protrusion extended inferiorly. This lies adjacent to the S1 nerve root in the canal. The distal right S1 nerve root is unremarkable. The left S1 nerve root is not compromised." d. – 10/01/06; Dr ­­­­­Licina refers to an MRI "showing a large right L5/S1 disc prolapse compressing the S1 nerve root" e. – 18/06/09; Dr McKenzie's report has already been referred to. 96.Peers also saw another neuro surgeon Dr ­­­Weidmann on 4/12/03 for medico-legal purposes. He was re-examined on 15/5/06. His opinion was that the fall at work resulted in a herniated L5/S1 disc producing back and right leg pain. He said such herniations are largely degenerative and trauma often provokes symptoms but as to whether Peers would have developed symptoms without such an injury was speculative as to when it might have occurred. 97.Apart from Dr Dalton, Peers was also seen by Dr Stephenson an orthopaedic surgeon for the Defendant on 30/09/5 and 4/09/06. His reports are more analytical of material provided to him. However, apparently he was unable to find any objective evidence of any likely re-occurrence of a disc protrusion and felt that it was unlikely, given that the amount of disc having been removed was large. Likewise the possibility of further surgical intervention was lessened. 98.I accept the plaintiff as a truthful witness particularly as to his ongoing symptoms, supported as they are by both the medicine generally and his wife in particular. I do not think his complaints are in anyway exaggerated, nor do I think that the restrictions he has described have been embellished. Despite having a very bad back, he has persisted in his line of work at a supervisory and planning level, albeit with difficulty and pain. His descriptions of the methods of obtaining back relief were not challenged in cross-examination. There is a somewhat vicious circle operating in his case in that his back pain led him to be less active and to put on weight. Now whilst it may be the case that if he lost weight and became more active, particularly through a structured exercise program, his symptoms might improve, that is easier said than done especially within the context of life in a rural community and a job that requires fairly frequent travel. 99.I described the major controversy extant in the evidence of Dr Searle and Dr Dalton. I note that Dr Searle was right in his first report when he suggested that Peers would need some form of operative intervention. However, I am not satisfied on balance, having regard to the weight of other medical opinion, that Peers will be incapable of working beyond 50. 100.That being said, I have no doubt that as he gets older he will be less able to cope with back pain and also less able and perhaps less motivated to keep physically active even within a structured exercise regime and that there will be periods of exacerbation requiring treatment and a reduction in work and domestic activity. There is also little doubt that in terms of the general labour market, he has sustained a significant loss. ASSESSMENT 101.Peers claims damages by way of non-economic loss, past and future out of pocket expenses, past and future economic loss and loss of superannuation and future domestic assistance on a professional basis of 4 hours per week at $35 per hour. There is also a small Fox v Wood component agreed at $295. The past out of pocket expenses have been agreed in the sum of $14,713. It is argued that non-economic loss is 40% of a most serious case. He is now aged 37 having been born on 5 Jan 1972. 102.PAST & FUTURE ECONOMIC LOSS:- The substantial part of Peers' claim relates to past and future economic loss. It is suggested that he has had a past net economic loss of $25,000 per annum and will have a future economic loss of $25,000 for the next 13 years to age 50 and then a loss of $70,476 per annum, from aged 50 to 65 together with loss of superannuation on those respective amounts – a figure in excess of $825,000. 103.However, it is difficult to see evidence to support such an ambit claim. Peers' nett income per week prior to injury appears to have been about $916 per week. Since the accident he has had little time off work. Although he was unable to carry out the work he had been doing, Beltreco continued to employ him in a supervisory capacity. In 2001, Beltreco was taken over by a company called Jaylon who reduced the wages of supervisors. However, I accept that but for the injury, Peers would have remained in the field and able to earn at about his old rate of pay. As a supervisor with Beltreco he was losing between $61 and $63 per week compared to his pre-accident employment. When Jaylon took over, that loss increased until Y/E June 2006 when thereafter he had achieved at least his pre-accident earnings. I therefore have difficulty seeing how a yearly loss of $25,000 net per annum, can in anyway be justified. However, I do not accept the proposition that although Peers's wages with Jaylon were initially lower than Beltreco, that he wasn't experiencing a reduction in his economic capacity as submitted by Mr Polin. 104.The figures reveal actual losses as follows: - YE 30/06/02 - $10,451 YE 30/06/03 - $14,144 YE 30/06/04 - $12,064 YE 30/06/05 - $4,992 YE 30/06/06 - $2,704 This Makes a total of $44,355 and I allow that figure by way of past economic loss together with superannuation of $4879 making a total of $49,234.00. 105.It's argued, as I understand it, that Peers should have been able to achieve at least as well as Mr Heidemann (Shepherd) and Mr Galbraith who are both Construction Supervisors currently working in remote locations in Western Australia. That may well be the case and I have no doubt that persons in their situation are capable of earning significant salaries if they are prepared to work in remote areas. However, there is no evidence as to what any salaries are by way of comparison and further Peers made a family oriented decision to leave Jaylon and move to his home town in Victoria where he had support for his growing family. 106.He has since left Jaylon to carry out similar work with a Company called Linings Victoria where his current earnings exceeds his pre-accident income by over $400 nett per week. 107.It seems to me the two substantial bases for the plaintiff's claim for F.E.L. cannot be established on the balance of probabilities namely: a. An ongoing loss of $25,000 nett per annum and b. That he would be unable to work beyond aged 50 and thus sustain a total loss of income for the period from then until he would have retired. 108.I have no doubt that Peers's earning capacity on the general market has been significantly reduced by virtue of his injury and disabilities. As I said before I am also of the view that some deterioration in the future is more probable than not, particularly as he gets older. Apart from a willingness to work and extensive experience in the lining industry, Peers has no other qualifications to fall back on other than his health and that has been substantially compromised. I am also of the view that account needs to be taken of the likelihood of periods of exacerbation, which will impact on his ability to earn income at such times. 109.Mr Russell correctly points out between 2001 and 2002, that is until year ending 30/6/02, his nett income was down $14,000 on the previous year ending 30/06/01. But I do not see how we move from that figure to the submission that "when you take into account that 2001 was a mixed employment year that really you ought to compensate him by $25,000 per annum and he's had nine years of economic loss since the accident and that's $225,000." (TP 451). With great respect, there is just no basis for assuming that Peers' income would, but for the accident, have been $25,000 nett higher than it actually was over the relevant period, especially given that it was conceded there were no comparable earnings available from anyone, in particular from Mr Heidemann and Mr Galbraith who gave evidence. 110.In my view, Peers' future economic loss is incapable of any precise calculation and both damages for it and for future loss of superannuation, taking into account exigencies, are best compensated by an award of a more than token cushion payment. 111.Having regard to my remarks above I would assess that payment as a sum of $150,000.00. 112.FUTURE PAID CARE:- In submission it was conceded that past gratuitous care could not be substantiated at the requisite level but a claim was made for future paid care. It was submitted that "there are problems in accepting that he needs help for more than six hours a week given, number 1, that he works 50 hours a week and number 2, in his spare time he can occasionally do some physical work outside the house. No doubt there are some specific tasks he can't do; the dishes and the ironing and anything that involves flexing his back, but there must be a number of other things he can do. So the future domestic assistance is calculated in this way; we did make a claim for paid care in the alternative in the 2006 particulars, the one that I have relied upon, and I have simply picked a figure of four hours a week to reflect the help that he needs and which should be provided on a paid basis; that is the commercial cost of care as particularised, and I don't think there'd be any dispute about that." 113.The defendant submitted that "This was a case in which there was not a single word of evidence that Mr Peers would ever pay for commercial domestic assistance. Not a suggestion that he's paid for a cent of commercial domestic assistance in the past and that's likely that's something that he's going to do in the future. …. Mr Peers is a reasonably well paid person, Mrs Peers is also in employment. There's not a suggestion that they haven't been able to afford to pay for a lawn mower or someone if they needed to. One would have thought at the end of the evidence (that) the likelihood is that the Peers family is going to go on from here in the same way that it's gone on for the last nine years and that's not engaging four hours of commercial domestic assistance per week." 114.The defendant's submission is in my view correct. There is no evidence of wishing for commercial help but not being able to pay for it and I am satisfied that if such had been required in the past, it could have been afforded by Mr and Mrs Peers. I cannot simply pick a figure of four hours per week without there being some basis for it and that basis has not been established. At best this head of damage could only be dealt with by way of a cushion payment and in that regard I am satisfied that there will be times in the future when a combination of reduced capacity and age would be alleviated to an extent by paying someone to do those more arduous tasks involving stress on the back that Mr Peers cannot perform. I allow the plaintiff the sum of $30,000.00. 115.FUTURE OUT OF POCKET EXPENSES:- The amount of $15,000.00 claimed seems more than reasonable in view of the medical recommendations and I allow that figure. 116.NON ECONOMIC LOSS:- Having regard to the medical evidence referred to above I find that Peers injury represents 37% of a most serious case and I award him the sum of $175,195.00. OUTCOME 117.In accordance with my findings there will be a verdict for the plaintiff in the sum of $ 434,437.00 118.I order the Defendant to pay the Plaintiff's costs of these proceedings. 119.The Court of Appeal reserved to this court the question of costs in regard to the first trial. In that regard, I grant liberty to the parties to re-list the matter before me at any time prior to 10/12/09 to argue the question of the costs of the first trial and any additional issue as to costs that might arise out of the second trial. 120.However if the matter is not re-listed before me on or before 10/12/09 then, the Plaintiff having been successful on both trials, I order the defendant to pay the plaintiff's costs of the first trial. 121.The verdict and costs of the second trial are to be paid within 28 days of today's date. In the event of order 3 coming into effect I order the Defendant to pay the plaintiff's costs of the 1st trial within 28 days of 10/12/09. 122.Interest is to run on any unpaid costs after 28 days in accordance with the District Court scale. Interest on the verdict is to accrue in the normal way. 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