New South Wales Supreme Court CITATION : Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006 HEARING DATE(S) : 29 June 2009 to 10 July 2009, 18 March 2010, 28 April 2010, 14 May 2010 JUDGMENT DATE : 10 September 2010 JUDGMENT OF : Harrison J DECISION : Direct the parties within 14 days to bring in short minutes of order to give effect to my findings and conclusions. CATCHWORDS : NEGLIGENCE – industrial accident – personal injuries – slip and fall sustained by factory manager - where slurry created as by-product of concrete cutting in factory – slurry deposited on floor where workers required to stand and work – slip hazard not avoided by institution of a safe system of work – unsafe system of work - breach of duty to provide a safe place to work Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1967-68) 122 CLR 649 Occupational Health and Safety Act 1983 LEGISLATION CITED : Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 Shops and Industries Act 1962 Workers' Compensation Act 1987 CATEGORY : Principal judgment Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 CASES CITED : Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 Kallouf v Middis [2008] NSWCA 61 Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249 PARTIES : David John Glover (Plaintiff) Australian Ultra Concrete Pty Ltd (Defendant) FILE NUMBER(S) : SC 1995/32519 COUNSEL : P N Khandhar (Plaintiff) D J Russell SC (Defendant) SOLICITORS : Willis Lawyers (Plaintiff) Sparke Helmore (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 10 September 2010 1995/32519 David John Glover v Australian Ultra Concrete Pty Ltd JUDGMENT 1 HIS HONOUR: David Glover alleges that on 1 May 1994 he was injured during the course of his employment with the defendant at its factory at Rutherford. He brought proceedings in 1995 claiming damages for the injuries he had sustained. The hearing commenced before Newman J in Newcastle on 21 August 2000. Mr Glover was then legally represented. His Honour found a verdict for the defendant. Mr Glover successfully appealed to the Court of Appeal: see Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. Mr Glover appeared for himself on the appeal. The Court of Appeal set aside the verdict below and ordered a new trial. Introductory remarks 2 Mr Glover was born in the United Kingdom in January 1945 and is accordingly now 65 years of age. He is a citizen of the United Kingdom currently domiciled in Australia. He has no legal training and professes no legal expertise. His new trial commenced before me on 29 June 2009 and he once again appeared for himself. It originally proceeded in that way for nine days until 9 July 2009. Things then started to change. 3 As the transcript will reveal, I had on several occasions encouraged Mr Glover to seek legal advice concerning his case. This was most significantly and obviously for the reason that the manner in which he was attempting to conduct the proceedings was by any objective measure confused and confusing, ill directed and rapidly became unnecessarily pedantic and time consuming. Mr Glover risked doing himself and his cause a considerable disservice by his steadfast insistence that he should continue to appear for himself and I regularly told him so in as many words. For example, on more than one occasion Mr Glover sought to prove, contrary to an admission by the defendant that it had been his employer when his accident occurred, that a different party had employed him. Having regard to the fact that he sued the defendant alleging that it had breached the duty it owed him as its employee, and in particular that there was no other defendant to his claim, the danger of adopting this course should have been obvious. 4 There are other examples of this as well. During the hearing Mr Glover became almost obsessional about impugning the credit of witnesses, even in circumstances where at the point of attack their evidence was arguably favourable to his case. A portion of the transcript during Mr Glover's cross-examination of Mr Higgins on the sixth day of the hearing demonstrates this tendency: "HIS HONOUR: Mr Glover, it is not inconceivable that you could put forward an argument that the complaints by Mr Higgins - if I accept them - that the product produced by the factory after your accident was the reason for your dismissal, supports your contention that you were unable to attend to your work as a result of your injury… [couldn't you]? PLAINTIFF: It is character again, your Honour. HIS HONOUR: I don't know how you make your case out. All I am suggesting to you is that there is available to you on one view of the evidence an argument that the deterioration in the product was related to the injuries you had suffered, thereby enhancing the relationship that may have existed between your ability to work as a result of your injury or your inability to work as a result of your injury. In other words, it has nothing to do with Mr Higgins believability or his character, but is wholly supportive of your case. You have had this case for a long time, have you thought it through completely? PLAINTIFF: Yes, your Honour. HIS HONOUR: All right, next question." 5 Mr Glover's determination to remain unrepresented was to some extent understandable having regard to the fact that his previous experience with the legal profession and the legal process had undoubtedly, at least from his point of view, been most unsatisfactory. His only success of note had been when he appeared for himself. He also said that he could not afford a lawyer, although I am unaware whether he had sought representation on a no win, no fee basis. Unfortunately, before this position altered, Mr Glover had managed to tender a very considerable amount of material, much of which was of little, if any, relevance, which he had obviously accumulated over the 15 years since the events giving rise to these proceedings. Mr Glover gave me regular, if mostly inaccurate, assurances about the importance of this material. I intend by these remarks to express no criticism of Mr Glover at all. However, disposition of this case has been made to some extent more difficult and time consuming than it should have been. 6 By the tenth day of the hearing, which was 10 July 2009, it appeared that the evidence had been completed and that the parties were about to commence final submissions. Indeed, Mr Russell of senior counsel, who appeared for the defendant, had prepared and provided Mr Glover with the defendant's written outlines of submissions on damages dated 8 July 2009 and on liability dated 9 July 2009. However, before matters proceeded very far on that day, Mr Glover announced that he had seen a solicitor the day before and that he also had an appointment to confer with counsel the following week. Mr Glover sought an adjournment for the purpose of taking legal advice, which at that stage appeared to be limited to obtaining assistance with the preparation of written submissions and an oral presentation in support of them at some date convenient to the parties. In the circumstances I directed that Mr Glover prepare and serve his own written outline of submissions on all issues by no later than 30 July 2009. I adjourned the proceedings to 31 July 2009 for mention. The defendant did not strongly oppose this course. (The comments made by me on the ninth day of the hearing between transcript pages 309.33 and 311.44 should be noted as possibly informing, at least to some extent, the course that the proceedings took on the tenth day of the hearing). 7 In the events that occurred, Mr Glover had been unable by that adjourned date to arrange legal representation as anticipated or to furnish written submissions as directed. I therefore adjourned the proceedings again until 4 September 2009, by which time Mr Glover was still without legal representation. Accordingly, and somewhat optimistically, I adjourned the proceedings until 26 October 2009 "for continuation of the hearing", and directed Mr Glover to file his written submissions by 2 October 2009. The defendant was directed to respond in writing to those submissions by 16 October 2009. The defendant did not oppose this course. 8 For reasons that are not important to record, these directions were in due course overtaken by events. However, significantly, in the intervening period Mr Glover had instructed a solicitor, and Mr Khandhar of counsel had been retained to appear. Moreover, Mr Khandhar had also been able helpfully to prepare written submissions for Mr Glover, which were filed on 16 October 2009. The matter ultimately came back before me on 2 November 2009, at which time Mr Khandhar, with the benefit of further instructions from Mr Glover, sought leave to reopen his case, which I granted. I therefore directed that Mr Glover serve a further amended statement of particulars and any proposed addendum to the 16 October 2009 submissions by 13 November 2009. The matter was adjourned until 16 November 2009 for further directions. On that day the proceedings were at last listed for hearing of the foreshadowed further evidence and final submissions, on 18 March 2010. That is what happened. The matter was then adjourned part-heard until 28 April 2010 for consideration of some outstanding, but relatively minor, matters. On that day it was adjourned until 14 May 2010 for mention, on which date I reserved my decision. 9 I have related these facts at this time in order to emphasise in context the considerable assistance that I have received from the parties' respective legal representatives. At times when Mr Glover was unrepresented and floundering, and in circumstances where he was labouring under considerable personal, procedural and forensic distress, the defendant on no occasion sought to take advantage of these things but on the contrary cooperated and assisted Mr Glover and the Court in a most commendable fashion and smoothed the way for an efficient trial whenever and wherever possible. Although these things should go without saying, some reference to them in this case is important in my opinion. Also, when Mr Glover finally appreciated his need for professional legal representation, which resulted in Mr Khandhar being retained to appear for him, the manner of presentation of his case immediately changed. It became efficient and structured. This has obviously been of considerable assistance to me, as well no doubt to Mr Glover. Background 10 Ipp JA at [4] in the judgment of the Court of Appeal in 2003 described Mr Glover's case in these terms: "[4] … The appellant asserted that on 1 May 1994 he was injured in an accident that occurred while he was at work. He alleged that he slipped and fell on the concrete floor of the respondent's factory while assisting in the manufacture of concrete beams. He contended that his injuries were caused by the respondent's negligence or breach of statutory duty." 11 His Honour later described Mr Glover's version of what occurred, with the assistance of some reference to the original judgment of Newman J, in these terms: "[8] The respondent manufactured pre-stressed reinforced concrete floor beams. The appellant was employed by the respondent as its factory manager. [9] At the trial, the appellant testified that he was injured while working on a machine called a slide former. The slide former was mounted on rails along which it moved while producing concrete floor joists. Cement mix passed through the machine and was extruded underneath in such a way as to form concrete beams. [10] The working of the slide former was described by Newman J as follows: '9. The machine moves along an area which is some 110 to 120 metres long taking 2 to 2 ½ hours to complete its journey. Having completed its journey and having extruded concrete so beams are formed, is then lifted by a crane on to a parallel bed and the process is repeated as the machine travels in the opposite direction. 10. Between the two parallel beds exists an area which was variously described in the evidence some times as a channel but in fact appears to be merely a concrete divide. The beams which are created by the process are cut into required sizes which cause the concrete slurry to enter the divided area. As the machine moves along it is necessary for a person to clean the beams as they are created by using a steel trowel. 11. After the beam is so cleaned and as the machine continues its progress it is necessary for a plastic cover to be pulled over the cleaned beams so, as I understand the evidence, to ensure that they remain clean. In order to carry out the cleaning process of the beams it is necessary for the person performing that task to stand in the divided area between the two beds.' [11] It was the appellant's case at trial that on 1 May 1994 a Mr Scott Thompson was driving the slide former and he, the appellant, was standing in the divided area between the two beds, cleaning the freshly made concrete beams and covering them with plastic covers. At the time, there was concrete slurry on the floor of the divide. The appellant slipped and fell backwards as he turned to pull a plastic cover over some beams. He asserted that the divide had been made slippery by the concrete slurry. [12] Essentially, it was the appellant's contention that the respondent was negligent in allowing the slurry to remain on the concrete floor while he was working there." 12 Even though Mr Glover's case before me was not different to that just described, it is important to indicate the way in which I saw the case unfold. My own description of what occurred is as follows. 13 The defendant utilised a large machine known as a "slide former", which was a mobile device that produced extruded concrete beams in large production beds in its factory. The device was mounted on wheels that travelled upon steel rails. The rails were themselves set onto low preformed concrete structures or divides that extended almost the length of the factory. They were configured so that the rails ran along the top edges of each divide. These divides were also the physical structures that separated a series of production beds thus formed between them. The raised rail on each edge of these divides had the effect of creating a so-called channel or trough that extended along the length of the divide and between each rail. The evidence is ambiguous on the point but rails were either at 600mm or 770mm centres on the channel where Mr Glover slipped: compare in this respect exhibit "A" with exhibit "AE", which is the drawings annexed to the 24 March 2004 report of Mr Ward. 14 The slide former was loaded with premixed concrete through an integrated hopper mounted on top of it, which was then fed down through the machine at a predetermined rate onto carefully positioned groups of pre-tensioned steel reinforcing cables spanning the length of the production beds. The slide former started at one end of a production bed and travelled over these cables to the other end. The system anticipated that the machine would then be transferred to an adjacent bed so that the process could be repeated. The final product of these passes was a series of prestressed steel reinforced concrete beams, designed for use as floor joists, that were then left to dry or cure where they lay. 15 This technology was relatively new to Australia in the early 1990s. The process was and is for present purposes uncontroversial in general terms and is not criticised by Mr Glover as unsafe or dangerous as such. Indeed, the actual manufacturing process as so far described did not by itself cause the injury sustained by Mr Glover, even if on one view of the matter there were certain aspects of the defendant's system of using it at the time that were arguably or potentially dangerous and unsafe. 16 Mr Glover's complaints are effectively limited to certain events that sometimes occurred after fabrication of the beams. These complaints arise in the following way. At the time of Mr Glover's injuries, the factory in which the beams were manufactured had not been in operation for very long and it had only a limited capacity to produce beams of varying lengths. Until that situation was rectified, when further beds were subsequently constructed or completed, it was at times necessary to alter these longer or standard size beams to create smaller beams to accommodate specific customer requirements. The method that was used for this purpose was to cut the beams with a water-cooled concrete cutter or saw while the beams remained in situ on the beds where they had originally been formed. One consequence of this process was the production of slurry created by the admixture of concrete dust liberated in the cutting process and the water used to cool the saw as it did so. Part of the evidence in this case included very clear and helpful video recordings demonstrating the manufacturing and cutting processes to which I have referred, as well as a large number of still photographs. Having viewed the video I suggested the following summary of it to Mr Glover during his evidence in chief on the first day: "HIS HONOUR: Why don't we have a look at the video silently. If we need to go back to portions of it for explanation, we will do that. I understand there's briefly a moving hopper on the top of a casting mechanism that passes slowly over reinforced steel placed in various configurations, depending upon the particular beams that were cast or proposed to be cast. They are of different sizes and the intensity and configuration of the reo, I assume, will differ according to the nature of the beam or beams being cast. These beams are of some considerable length but are cast in one length in anticipation of cutting when they have cured or set, and … the channels you have referred to, where I assume the slurry gathered, are channels between these particular runs of beam castings. Is that right? PLAINTIFF: Correct, your Honour." 17 Mr Glover's case proceeded upon the basis that the channels between the rails in which the slurry accumulated were also used as walkways or working platforms upon and from which workers in the factory, including him, were required to walk or stand in the course of their work. The evidence of Mrs Glover, who also used to work in the factory at the time and which is referred to below, makes it clear that the system then in operation employed the channel both as a walkway or platform for use by workmen as well as a drain for the collection and disposal of the accumulated slurry. As such, on Mr Glover's case, the system was definitively unsafe. He contended that the slurry was slippery and therefore dangerous and yet it was, or became, collected on the very structure from which he was required to work, and accordingly had to be removed from it. 18 The method adopted for removing the slurry was sweeping. However, Mrs Glover's evidence also makes it clear that even though the rails on either side of the channel operated as de facto edges or lips to retain the accumulated slurry, they were insufficiently high to permit safe - meaning immediate or contemporaneous - sweeping of the slurry to remove it whilst a production run was in operation. This was because doing so caused the slurry to wash over the rails and spill back onto the formed or forming beams, thereby potentially degrading the manufacturing process and hence the beams themselves. 19 Mr Glover alleged that nothing was done to rectify this problem, despite his complaints to management that there should be a system for draining the slurry between the production beds. Moreover, the slurry was, or tended to be, the same colour as the channels, making it hard to detect and more dangerous as a result. Work in the area of the extruded beams also had to be done quickly, having regard to the time it took for the concrete to go off, which Mr Glover argued added to the dangers. He also contended that the factory was extremely busy at that time and that as a consequence the defendant was understaffed. This meant that removal of the accumulated slurry was either not performed at all or was not performed in a timely way. 20 The defendant admitted that it employed Mr Glover but denied that it was liable to him for his injuries, either as a consequence of negligence or breach of statutory duty. It pleaded contributory negligence, effectively contending that the cleanliness of the factory and the removal of the slurry were matters that fell to Mr Glover to perform or arrange in his managerial capacity, which he failed to do. The defendant also contended that Mr Glover failed to keep a proper lookout or take adequate care for his own safety. An allegation of fraud, relying upon a suggestion that Mr Glover had not slipped as he alleged, but had been pushed over by his wife, was specifically withdrawn. Quantification of Mr Glover's damages remains in issue. The plaintiff's oral evidence - liability David Glover 21 Mr Glover commenced work with the defendant in November 1991, having been recruited to commission the Rutherford factory. By the start of 1992 the business appeared to be going well and orders began to increase. This meant a lot more recutting of beams. However, the defendant did not by then have in place what Mr Glover described as an incremental beam size system, where beams are in effect manufactured, in the sense of being almost immediately cut, to the correct size on the bed before being loaded into the yard, rather than being returned to the bed from the yard for cutting at some later stage. That is what happened in the present case because the yard was not big enough to take the number of beams they had to produce. Mr Glover's case was that the cutting of beams just after their production causes minimum slurry: see the report of Dr B N Emerson dated 17 November 2003 (Exhibit "AD") referred to below. 22 Mr Glover said this: "… at this time it became apparent that with all the recutting there was too much slurry being produced and it was suggested by myself and Mr Steve Frost at one of the meetings that we should drainage [ sic ] in the between the two beds. This was not just suggested for safety reasons but to stop the slurry going on to the adjacent beds." 23 Mr Glover said he proposed how the slurry could be disposed of by an appropriate drainage system but none of his suggestions was implemented. He said Mr Frost, a shareholder in the defendant and the brother of one of its directors, told him that the drainage could not be installed because it was too costly at that time. Mr Glover gave the following evidence: "Q. Okay. Keep going. A. And after he informed me that it couldn't be done he did tell me that it may be done later on, but it never did. Then about 12 months later he came to me about we were going to add extra beds into the factory, the beds what we cast the beams on. He said because we were having extra beds, because I had brought up at that time again we could put the drainage in with the new beds, I was told by Mr Frost that there should be no need to do this because with the extra beds we wouldn't have to do so much recutting, therefore that would reduce the amount of slurry." 24 By this time the factory was so busy that it was operating seven days a week. He asked for more labour but he was told that the company could not afford it. However, in the end production got up to such a point that Mr Glover was able to persuade the company to start a seven day roster system. That was in the February before his accident the following May. After the new roster system had been working for about two weeks, Mr Glover was directed to stop it because it was costing the company money. He said that the defendant realised it would have to pay penalty rates for the men working weekends, even though they had had two days off in the week. Mr Glover then described what happened: "At the end of that month I was told I would have to use men from another company, which was Saddingtons, part-time, weekends. None of these men were experienced in the work we had to do. Normally we would have between eight and 14 men at the factory, experienced men. On the particular day of my accident I had only two experienced people out of six and I was rushing around doing about four jobs at the same time. I was having to assist the batch plant operator because the company had not purchased a water meter for the batch plant. I had to do the lab test cubes, I had to assist the machine operator because he was inexperienced at the time. I also then had to clean off the back of the beams that the machine was producing and pull off the plastic. That would normally take about four people to do this work and I was there doing it on my own." 25 Mr Glover then referred to the specific circumstances of his accident: "Q. Are you going to tell me how the accident happened? A. What had happened, as I said, I was assisting the batch plant operator, I was doing the cube test, I was helping the man on the machine and I was also doing the job of cleaning off the back of the beams and pulling the plastic cover over the beams. I was running around and as I was in a rush to clean off the back of the beams and cover them before I had to run back to the batch plant, I got up quickly, went to turn to pull the plastic and I slipped up and went back on the beams that had just been cut earlier that morning and I landed in between the beams. It is with that I got up and I told the operator I had done my back and I said I would get someone to take over from me." 26 The operator referred to was Scott Thompson. 27 Mr Glover then tendered without objection the transcript of his evidence in chief given before Newman J on 21 August 2000. That transcript described the circumstances of Mr Glover's accident in some more detail than it was given before me. Some of that transcript, commencing at page 9, was as follows: "Q. At the time of the accident what were you doing? … A. I was cleaning of the back of the beams and pulling the plastic up. I was also controlling the batch plant as well. ***** Q. What, then, did you do? We have got you at the back of the machine, you have got a steel float; what did you do? A. When I cleaned the beams off I turned to pull the plastic, and that is when I slipped. ***** Q. Now, if you had had additional men would you have had to do the job of cleaning the beams and also pulling the plastic up? A. No. Q. You have said that there was – I think you answered this question; I just forget – there was slurry in this channel? A. Yes. Q. Did that play any part in your having this accident? A. Yes. Q. What part did it play? A. It was slippery." 28 Mr Glover said, as the video of events in the factory depicting the cutting of beams was played in Court, that it "was the problems I was facing at the time". He said that "[i]n normal factories you don't recut beams". He confirmed that a part of the factory where he was shown to be standing in the video equated to the area he says he was standing, covered in slurry, when the accident occurred. The water was the result of the beam cutting process. He confirmed that the channel that separated the beds "was for walking on". It had a raised lip or flange created by the rails upon which the slide former travelled. There was no objection to this evidence given by Mr Glover as a commentary upon the video as it was being shown. 29 Mr Glover agreed in cross-examination that when he came to Australia he had an understanding that he would be in charge of the business of producing concrete beams. He agreed that it was part of his job to teach or instruct new employees how to operate the slide former and to perform the various tasks associated with its operation. He reaffirmed that the plastic cover over the formed beams was to slow the drying process in an open factory where wind or draughts might otherwise lead to the formation of cracks in the beams. 30 Mr Glover agreed that pulling the plastic over the beams was not a difficult or skilled task although he later said, "[n]ormally two people would do that". On the day that he slipped, however, he was doing it alone. On that day there were two beds in operation and his accident occurred between them. Both his feet were in the channel at the time. He said he "fell backwards onto the beams that were on the bed for recutting". He hit his buttocks, his back and his left shoulder. Mr Glover agreed that the channel between the two production beds did not get slurry on it from the actual movement and process of the slide former, but from the later cutting process. He also agreed that it was the slurry that came from Mrs Glover's first cutting operation that morning that he eventually slipped on. He said that he knew from his experience both that the cutting operation would produce slurry and that it would come to rest upon the channel between the two production beds. 31 Mr Glover explained that the sweeping process involved the use of a broom along the concrete channel, not a squeegee or similar as was suggested to him. He said that when cutting was taking place "there's always someone sweeping up at the same time, which on this day there was not". He said "[t]here was not labour to do it". He gave this evidence: "Q. So it is not a difficult operation to clean the channel, is it? A. No. Q. And it is not a time-consuming operation, is it? A. It's time-consuming, yes, to do it properly." 32 He then gave the following important evidence: "Q. Had you looked at the channel, do you agree you would have been able to see the concrete slurry from Ronnie's cutting operation earlier in the morning; correct? A. As I said, if the sun shines in the top end of that factory you can see it at times. Sometimes you don't see it. Q. Did you think to yourself before you stepped on to this channel to do your work Ronnie was cutting here earlier this morning, there might be slurry here? A. I was busy doing other jobs and I assumed that it had been cleaned up. Q. Well, did you think to yourself there might be slurry here? A. No, because normally if the experienced men are there it would have been removed. Q. You don't say, do you, that in stepping around the back of the machine to do the de-dagging and rolling the plastic that you didn't notice whether or not there was slurry on the channel. You don't say that, do you? A. Yes, I didn't notice it, no, because, as I said, I was busy. I was in a hurry all the morning." 33 Mr Glover agreed with the proposition that he was the person in charge of all six people working at the factory on that morning. He was the person who could direct them to do one job or another. However, he said that he could not get one of his wife's assistants "to come down and broom the channel clean" because if he "had done that and taken them off the job they were doing [he] wouldn't have got this urgent job out that day". He said it was that he "just … didn't have the staff to do it". 34 The following passage of evidence should also be noted: "Q. So you were the person who decided to do this operation in a manner which, in hindsight, was an unsafe manner of work; correct? A. No, I don't think so. I just didn't have the staff. Normally we would have 12 to 14 men. That particular day I only had six. Q. So you knew that day that you didn't have a person available to do the brooming of the channel, didn't you? A. I didn't have enough people period for the whole operation. Q. So knowing that, I take it you were aware that slurry would still be sitting on the channel when you came to work there later in the morning; correct? A. I didn't know, no. I didn't know if it had been cleaned up or not because I was busy doing other jobs, jobs that I shouldn't have been doing. Q. You say you didn't know whether it was there or not; correct? A. No, that's correct. Q. You can't tell me now whether you saw it or not; is that correct? A. No. Q. You can't tell me now whether if you had looked you would have been able to see it; correct? A. If I had looked I would most probably have seen it, but like I said, at times you could see it, at times you couldn't. I can't be certain." 35 Mr Glover said he was wearing safety boots at the time, not trainers. He said he "had never gone into a work place without safety boots" and that he "was brought up in a very strict safety regime and [he had] never, ever worn trainers". 36 Mr Glover was also cross-examined on the issue of the number of personnel at work on the day in question, and upon his role in, and responsibility for, organising that as follows: "Q. You've told me earlier that you didn't have enough men to do the job on this particular day; correct? A. Yes. Q. You were the person who had arranged for all these people to come to the factory in the first place, hadn't you? A. I asked Mr Saddington and Egans to supply me with some men. I also asked another company, All Terrain, if I could have men, I required more men that particular day, but I couldn't get them, and I was also told the job had to be done at all cost. Q. It was part of your practice, wasn't it, to ring men direct at home on the weekend and ask them would they be able to come into work? A. Not normally. Normally I would have enough men. Q. But when you didn't have enough men was it part of the way you operated that you would directly ring people at home and say, "Can you come in and help out"? A. If someone didn't turn up, yes, I would. Q. Well, on this particular day, the Sunday, did you ring around your contacts to see whether you could get more people to come to the job? A. I did that on the Saturday. On the Sunday I couldn't get anyone because I tried everyone on the Saturday. Q. You were the person in charge of everybody's safety on that Sunday morning, weren't you? A. I was there to run the factory, yes. Q. While people have to look out for themselves, you were the person who had the responsibility to see that the industrial operation being conducted was conducted safely; correct? A. To the best of my ability, yes. Q. Did you make an assessment that day that you had sufficient personnel to safely carry out these two operations of making new beams and cutting old beams? A. I had the men I worked with and that's all I had. Whether I-- Q. I didn't ask you that. I asked you whether you made an assessment on that day that you had sufficient personnel to safely run your processes at the factory? A. I knew I didn't have sufficient men to run the factory, but I was told the job must be done. Q. So did you decide to go ahead and do the work at the factory that day, knowing that there were unsafe conditions in the factory? A. I wouldn't say they were unsafe. It was just that I didn't have enough men." 37 After his fall he stood up. He said, "I got up fairly quickly, and it was not until I almost got up that I realised that I had really hurt myself". He said, "I felt the pain but I got up and I tried to go forward again and that's when I had the severe pain in my back and leg." His wife drove him home. They are now divorced. Mr Glover agreed that he had threatened his wife with some sort of financial penalty if she did not give evidence to assist him in his case. He said, "I have had to, yeah, yes". He sought to explain this by saying, "Well, she expects to receive something from this, which the British court says she's entitled to, but she's not prepared to help". Mr Glover agreed that he had an arrangement with his former wife that she would receive 30 per cent "of any proceeds from this case". Craig Carter 38 Mr Carter worked at the defendant's factory. He was not at work on the day of Mr Glover's fall. He did observe him at work on the following day. He said this: "Q. On that day, what did you notice? A. I noticed you couldn't get around. You could hardly move. You had to get help up and down from the beds. The beds were about, say, 400, 500mm off the actual level of the ground. He had to get steps made up so he could actually get up on to the beds. We had a problem on the Monday with the vibrators and that and there was no-one else in the factory who could actually help, like knew what was going on with the structure of the machine, and we had to help David down from his office and come down and physically help him tell us what to do with the actual machine." 39 Mr Carter was not cross-examined. Julian White 40 Mr White said that he sometimes supplied labour to the defendant. He recalls being asked to do so for the day when Mr Glover was injured but all of his workers were employed doing work for his organisation on that day, so that none of them was available for hire to the defendant. 41 Mr White gave no other evidence of value or relevance. He was not cross-examined. Aaron Clay 42 Mr Clay gave evidence that he saw Mr Glover on the day of his accident. He said he was fine in the morning but he later noticed that he was limping. His precise evidence on the topic was as follows: "Q. Could you please describe what you saw at the time of my accident? A. Well, I didn't actually see your accident, but I seen - you were fine, then when I looked up again, because in the batch plant you're sort of not looking, I could see that you were limping around." 43 Mr Clay was very briefly cross-examined in terms to which it is unnecessary to refer. Allen Swan 44 Mr Swan was a forklift driver for the defendant. He was not present and did not see Mr Glover's accident on 1 May 1994. He was unsurprisingly also not cross-examined. Andrew Leadham 45 Mr Leadham was a general hand employed by the defendant. He was not present at the factory on the day of Mr Glover's accident. He continued to work for the defendant until November 2008. He was asked and answered the following question without objection: "Q. Was cleaning beds after cutting beams a priority of mine? A. Yeah. Well, it was part of the process. We wouldn't leave." 46 Mr Leadham was not cross-examined. Ross Giddins 47 Between 1971 and August 1994 Mr Giddins was the general manager of Haxton's Haulage. He was in charge of running that company. It had approximately 70 employees and 40 vehicles in its fleet. It was contracted to the defendant to carry its products throughout New South Wales. He agreed that the yard of the factory was kept neat and clean. 48 Mr Giddins was not cross-examined. Paul Cormick 49 Mr Cormick was employed by the defendant between about 1991 and 1994. He described his role there as follows: "Q. During your employment with Ultrafloor, what was your main role? A. Cutting concrete beams, making sure the wires are stretched out for concrete beams and lifting the concrete beams off the floor, making sure the wires are tight for the concrete beams to get laid and operating the paver." 50 Mr Cormick was not cross-examined. Stephen Fitzsimmons 51 Mr Fitzsimmons worked for PW Saddington and Sons between approximately 1990 and 2004 and was occasionally seconded to work for the defendant at the Rutherford factory. He was never contacted either by his employer or the defendant about Mr Glover's accident. 52 Mr Fitzsimmons was not cross-examined. Rudy Kress 53 Mr Kress is dead. His affidavit sworn 7 June 2002 was read, significantly without objection. Its only present relevance is that Mr Kress said that at no time had it ever been suggested to him that Mr Glover's accident did not occur at work. He said that the proposition that Mr Glover was injured at work "was a fact well known to everyone". 54 At the close of the evidence on the third day of the hearing I also made the following inquiry of Mr Glover: "HIS HONOUR: Just remind me, who do you say were, if anybody was, a witness to what happened, who actually saw what happened? Is there anybody? PLAINTIFF: The nearest one is Mr Clay. HIS HONOUR: He said he looked up. PLAINTIFF: Yes, looked up and saw me getting up. HIS HONOUR: But we don't have a witness who saw what happened. PLAINTIFF: No, your Honour." Stephen Reece Frost 55 Mr Frost was a qualified engineer, a director of Quarry Products Pty Ltd, which company was itself a shareholder in the defendant. He was involved with Mr Glover originally in setting up the factory at Rutherford and the production processes to which I have referred. He agreed that the beds were steel trowel finished and had no fall for liquids to flow or drain away. Although he could not be certain of the reason, Mr Frost also agreed that in 1993 and 1994, no system for drainage had been installed. 56 Mr Frost was not cross-examined. Alan John Morrison 57 Mr Morrison is the general manager of the defendant. He joined the defendant in 1996. He was asked no question that was relevant to any issue I am required to determine and he was understandably not cross-examined. Veronica Gladys Glover 58 Mrs Glover was employed as a despatch clerk by the defendant between 1991 and 1994. She performed many tasks in that role. She gave uncontradicted evidence that producing prestressed concrete beams was a dangerous trade requiring skilled and experienced people. She agreed that the defendant's method of taking on labourers in 1994 meant that Mr Glover might not know who would turn up for work or what skills they possessed each day. She agreed that Mr Glover attempted to overcome the inexperienced staff problems by introducing a seven-day roster system. However, Mr Saddington discarded this system after only one month of its operation. 59 She said that she believed that Stephen Frost and Mr Glover attempted to introduce a drainage system for slurry on the production beds. She agreed that it took the defendant over two years to obtain the water meter that Mr Glover requested for the batch plant and over four years to set up the incremental beam stock system. She said that re-cutting beams was a dangerous work practice. She agreed with the general proposition that the work that was being carried out on the day of Mr Glover's accident was urgent. 60 Mrs Glover then gave this evidence: "Q. At around 9.30am did you see me slip and fall, injuring my back while working at the rear of the slide former? A. No. Q. Could you please tell the court how you became aware of my accident? A. I looked up, because I was lifting five tonne of concrete beams, to see where I was going to place these beams and you were walking up the factory bed. Q. Did I approach you and say that I had slipped over and hurt my back? A. Yes. ***** Q. Did you at that time or any other time tell Mr Higgins or anyone else that you had pushed me over causing my accident? A. Not that I am aware." 61 Mrs Glover gave this evidence in cross-examination: "Q. To recut the beams one of the things you had to do was operate a crane which would be used to grab the beams and lift them up; is that correct? A. That's correct. Q. And were the beams lifted up and put on a production bed that wasn't being used so they could be cut? A. When you're lifting beams from a bed it means that I have cut them specifically to size for orders. They then are lifted off of the beds, put on to the factory floor waiting for the forklift driver to lift them and take them out into the yard for storage. Q. To cut the beams while they are sitting on the bed you have to use a large industrial saw; is that right? A. That's right. Q. You were a person who had done that job on many occasions prior to this particular weekend; is that right? A. That's correct. Q. That saw had a spray of water to cool the blade as the blade spun and bit into the concrete and the reinforcing; is that correct? A. That's correct. Q. Am I right that when the blade cut the concrete beams that cement dust was produced which mixed in with that spray of water? A. That's correct. Q. Did the mixture of cement dust and water produce a cement slurry? A. That's correct. ***** Q. Am I right that when the cement slurry was produced by the cutting process that it was deposited not on the production beds but on a channel which was a level strip of concrete which separated two production beds? A. That's correct. Q. So the cutting operation is carried out on the production bed itself but the slurry was deposited on the channel; is that a correct way to put it? A. That's correct, yes." 62 Mrs Glover agreed that it was not necessary to stand on the channel or on the floor of the factory to do this cutting operation. She gave the following evidence about what happened next: "Q. Was it part of this cutting operation which generated the slurry that on a regular basis the slurry was supposed to be broomed away off the channel down towards the end of the production bed? A. That operation happened - we always cleaned up after we finished lifting the whole of the bed." 63 Mrs Glover then gave what I consider to be crucial evidence in Mr Glover's case. It was as follows: "Q. Well, there were two separate clean-ups, weren't there, in this sense, that after you make beams on the production bed, cut them and lift them off, you need to scrupulously clean the production bed before you can do the next run. Is that a correct way of putting it? A. That's correct, yes. Q. Then on the channel itself which is adjacent to the production bed, you also need to clean that up, don't you? A. Yes, but that's very difficult to do because you can't clean that slurry while the bed is being run on the next bed because of making a mess and creating rubbish for the new beams. Q. So if you try and clean the channel with a broom while production is going on on the adjacent bed you might cause problems, am I right, because you might push some of the slurry on to the adjacent bed which is being used for production? A. That's correct, yes. Q. So was the practice to wait until the adjacent production bed had ceased production before you cleaned up the channel by brooming the slurry away? A. That's right. Q. That system meant that you from time to time in doing your job had to stand upon the slurry and upon the channel; is that right? A. That's correct." 64 She said that slurry could be very slippery but that it eventually dries to a thick paste. She agreed that she had done the cutting operation many times before and that she had had to walk on the channel which had slurry on it to do cutting of beams on prior occasions. With respect to the slipperiness of the slurry she said "[y]ou get adjusted to it and you know how to walk so that you don't slip". She added, "[h]opefully you don't slip". 65 Mrs Glover was taken to the day of Mr Glover's accident. She gave this evidence: "Q. What was the first job that you started working on that morning? A. Cutting the bed number 2, I believe it was. Q. Now, was that a bed of beams which had been manufactured the previous day, the Saturday? A. That's correct. Q. So they had dried and cured and they were ready to be cut, is that right? A. Yes. Q. You used the saw which runs on the rails either side of the production bed to do your cutting, is that right? A. That's correct. Q. And in doing that, you created concrete slurry which then came to rest on the channel, is that correct? A. That's correct. Q. And indeed, you walked through or moved around that concrete slurry to do your cutting job, is that correct? A. That's correct." 66 She gave more, important evidence as follows: "Q. Scott Thompson was operating the slide form on that morning, wasn't he? A. Yes. Q. Mr Glover was doing a number of jobs but one of them involved being at the back of the moving slide former, is that right? A. That's correct. Q. At the back of the slide former, he was doing two jobs there, one was de-dagging the beams and the other job was pulling the roll of plastic over the freshly formed beams, is that correct? A. That's correct, yes. Q. And to do both those jobs, he had to stand on the channel which I presume was between bed 3 and bed 4, is that right? A. That's correct. Q. The slurry that you had created was still there at that time, is that right? A. That's correct. Q. You hadn't been able to broom it away because on the bed adjacent to your cutting operation, this operation of the slide former was going on, is that right? A. That's correct. Q. So you couldn't broom the slurry away from the channel between beds 3 and 4 because there was a risk that you might have broomed some of it into bed number 4 and that would cause production problems, is that right? A. That's correct, yes. Q. The standard way to clean that slurry, as you understood it, would be to wait until the operation on bed 4 had been completed and then to clean bed 4 and the channel between 3 and 4, is that right? A. That's correct, yes." 67 Mrs Glover was then directed to the issue of Mr Glover's footwear. She gave this evidence: "Q. Can I just ask you about Mr Glover that morning. He came to work fit and well, is that right? A. Yes. Q. Is it correct that he was not wearing safety boots that morning but rather he was wearing trainers? A. That's correct. Q. And when he said to you, "I slipped over on the bed and hurt my back", did you say something to him about it not being surprising because he had been wearing trainers? A. That's correct. Q. Can you now remember what you said, or words to the same effect of what you said? A. I asked him when he was walking - approaching towards me, 'What the bloody hell have you done?'. He said he had slipped and fallen over and I said, 'I'm not surprised in those trainers'." 68 Mrs Glover did not see what happened, but from what she saw and heard after she understood it to have occurred she said she was convinced that Mr Glover had had an accident. He was bent to one side and was holding his back. 69 Mrs Glover was also asked about the allegation that Mr Glover had said that she had pushed him over. She said that she had never heard that until 2000, or at least six years after the incident, when it was suggested to her in a solicitor's letter that she received "from the last court hearing". She was asked directly whether or not she had pushed her husband over and injured his back. She replied, "No, I did not". That answer was never challenged. This evidence was effectively the death knell of the fraud allegation, which was quite properly withdrawn the following day: see transcript 297.27. 70 I then asked Mrs Glover some questions. They were as follows: "Q. You have referred to structures in the factory that you have referred to as channels? A. Yes. Q. We have heard of those in evidence given earlier in these proceedings by other witnesses, you can accept that? A. Yes. Q. And I think when we talk of channels, we are talking of raised concrete structures that run the length of the factory and separate the production beds, is that correct? A. They're not raised. They are a dip between the rail lines where the slurry sits. Q. I understand. We have some photographs that have been tendered in evidence and the photographs appear to me to show that the channels have a raised edge or lip running down each side of them. Do you agree with that? A. I'm not quite sure what you are saying, a lip. The only thing I can remember is the railway line, the rails that the machinery sat on. Q. Yes. The railway lines or the rails appear from the photographs to be raised above the flat surface of the top of the channel. Do you agree with that? A. Yes, yes. Q. And when the slurry was deposited upon the channel did it lie between the raised rail on either side of it? A. That's correct. Q. And as far as you can recall, was the system to sweep the slurry along the length of the channel retained on either side by the raised rail at each edge? A. That's correct. Q. During the time you worked at the factory were the channels used as a walkway? A. Yes. ***** Q. Let me ask you this. For the purpose of carrying out dedagging work on freshly formed beams, would the channels be used as an access or walkway for the workmen to stand on for that purpose? A. That's correct. Q. Was one of the reasons that the sweeping of slurry from the channels had to be postponed because if they were swept when there were beams in production either side the slurry would overflow the lip or edge created by the rail on either side? A. That's correct." 71 Mrs Glover reaffirmed in re-examination her recollection that Mr Glover was wearing trainers at the time of his accident. This led to an application by Mr Glover to give further evidence himself on the issue of his footwear. Considerable debate about this occurred on the ninth day of the hearing. Mr Russell acknowledged that in the absence of any other evidence on the issue, my decision about Mr Glover's footwear came down to a contest between the evidence he gave about it and the evidence given by Mrs Glover. The issue was relevant to the question of contributory negligence in the first instance and Mr Russell bore the onus of proof on that issue. 72 Mr Glover also sought to recall Mr Clay to give evidence about this topic, even though he was not, but arguably could and should have been, asked to do so when he gave his evidence. Ultimately the heat went out of the issue, if it did not completely evaporate. Mr Clay was contacted by telephone and it became an agreed fact in the proceedings that if recalled he would have given evidence in or to the effect of the following. First, he could not remember what Mr Glover was wearing on 1 May 1994. Secondly, he could not recall Mr Glover wearing any footwear in the factory except safety boots. Thirdly, he could not recall anyone wearing any footwear in the factory except safety boots. 73 The defendant's final submissions on the issue of contributory negligence continued to rely upon Mr Glover's alleged failure to wear safety boots as an example of his own negligence. This approach necessarily included a contention that I should find as a fact that Mr Glover was wearing trainers and implicitly included as a condition of success a recognition of the fact that I would need to prefer Mrs Glover's evidence on the issue on the one hand over the agreed effect of the evidence of Mr Clay in combination with the vehement evidence of Mr Glover himself on the other hand. This issue is considered in detail later in these reasons. The defendant's oral evidence - liability Scott William Thompson 74 Mr Thompson is a fitter by trade and commenced work for the defendant as such in 1991. He did not see Mr Glover's accident and had no recollection of being told about it. He did recall Mr Glover coming to work on occasion when he was "sort of hunched over". He gave the following evidence about the operation involving the use of a roll of plastic to cover the drying beams: "Q. Do you remember in the early days of working on the slide former there was plastic which was pulled over the beams shortly after they'd been formed? A. Yes. Q. Did you ever do that job? A. Yes. Q. In the early days, was that role of plastic attached to the machine or was it separate? A. Separate. Q. Did the roll just sit on the bed? A. It did. Q. Were you required to push or pull the roll over the newly formed beams to cover them? A. That's correct. Q. When a bed was in its initial stages, that is, the slide form was just starting up one end of the bed, was the roll of plastic very large? A. It was. Q. How many people did it take to put the plastic over the bed at that stage? A. Two. Q. What did they do? A. Rolled it out on the fresh concrete." 75 He also gave the following evidence about the need to cut beams: "Q. Can I just take you back to your early time there. Was there a need from time to time to cut concrete beams to particular sizes? A. That's correct. Q. Was that done using a diamond saw? A. Yes. Q. And was that diamond saw water-cooled or was there water involved? A. Yes. Q. Where was the cutting done? A. In the early days it was done on the bed beside the one we were casting on. ***** Q. You have mentioned water being involved. What used to happen so far as that water was concerned when you did some cutting of beams that were sitting on a production bed? A. There would be a lot of slurry in the alleyways between the beds and you were required to sweep it. Q. Did you? A. Most of the times, yes. Q. Who had required you to sweep it? A. It was a directive from management. Q. How many beams were cut from time to time on the beds? A. Could be anywhere up to a hundred beams or more. Q. How long would an operation take which involved cutting a hundred beams? A. Could take from 30 minutes to a couple of hours, depending on what odd sizes there were. Q. Did that sort of operation produce a fair bit of slurry? A. It did, yes. Q. How many sweep-ups of the slurry would there be if you were cutting a hundred beams? A. You would probably just do it after you cut the hundred beams. Q. Where did you sweep the slurry to? A. Just to the ends of the bed into a drainage system. Q. What happened to it then? A. It went through some recycle pits. Q. So there was no drainage or grate on this channel in between the beds? A. No. Q. It was smooth? A. Yes. Q. The slurry would be broomed down to the end of that channel and the end of the beds? A. Yes. Q. And into a pit? A. The drainer ran into a pit, yes." 76 Mr Thompson was cross-examined by Mr Glover in terms to which it is generally unnecessary to refer. He was, however, directed to some portions of a transcript of his evidence given before Newman J at the original trial. In re-examination, Mr Russell also directed his attention to the following further portions of that transcript to which Mr Glover had not taken him when giving evidence before me: "Q. Can you look, please, at page 81 of that transcript? A. (Witness complied). Q. Do you remember you were asked to read the first half of that page to yourself? A. Yes. Q. And do you remember you were then asked to say whether you accepted that that evidence was true and correct? A. Yes. Q. Can I just direct your attention to line D, the second question and answer? Do you see that reads: 'Q. Was it the system when Mr Glover was production manager that that edge area beside where the beams are cast was cleaned after each run? A. I would say no.' A. That's correct. Q. Does that suit your memory today? A. Yeah, that's what I recollect. Q. Can you go down the page, please, to line J where you were asked this question: 'Q. Do you ever allow slurry to build up over a period of a couple of days? A. Never. Q. Did that ever happen when Mr Glover was production manager? A. I have seen it.' Is that evidence accurate? A. That's my recollection, yes." Spencer George Higgins 77 Mr Higgins became a director of the defendant in 1991. He recalled that Mr Glover was engaged from overseas to become the factory manager. Mr Higgins took no part in the actual running of the industrial process in the factory. He understood Mr Glover's role "was to train Australians to run the factory and also to help to commission the factory and to run the factory and he was also responsible as a manager for safety". Mr Higgins was not present at the factory when Mr Glover had his accident. However, he later saw him limping. 78 At the time that Mr Higgins gave his evidence before me, the defendant's allegation of fraud, based on the proposition that the real cause of Mr Glover's fall was that his wife had pushed him over, had not yet been withdrawn. Accordingly, Mr Higgins gave evidence (which was then relevant to a fact in issue) of a conversation with Mr Glover when Mr Glover is alleged to have related such a version of what happened to Mr Higgins. Simply as a matter of record, that evidence was as follows: "Q. So you said something to him, did you? A. I said, "What happened to you, David?" Q. What did he say to you? A. He said, "Ronnie pushed me over." Q. Who did you understand Ronnie to be? A. Ronnie was his partner. Q. This is Veronica Glover; is that right? A. Yes." 79 In the circumstances referred to earlier, the allegation of fraud based upon proof of that version was withdrawn by the defendant and is no longer part of this case. It is, therefore, unnecessary to consider further any of Mr Higgins' evidence that dealt with it. 80 Mr Higgins said that in March 2008, Mr Glover visited him at his home in England. The visit lasted for about half an hour. Mr Higgins said that Mr Glover told him on that occasion that if he "turned up in Australia" he would have his passport taken away. 81 In cross-examination by Mr Glover on a relevant issue, Mr Higgins gave the following evidence: "Q. … Is it true that you placed orders for cutting beams at lunch time most days ordering that the beams be cut that day, loaded that evening and delivered to site the next morning? A. I expect I did occasionally, not all the time. I would give you as much notice as possible. That I don't always control. I would ring you and say, "Is it possible, David, to get this out by this time?" Then I would adjust the site programme accordingly. Q. Mr Higgins, I put it to you you would say these beams have to be on site at this time? A. Not always. Sometimes I probably did, yes. Q. Even though you knew we were short-staffed? A. Yes. Q. And is it true that around 75 per cent of all cutting was recutting? A. Of all cuts were re-cuts? I don't know the exact figure but I know it is a high level." 82 Mr Higgins was also cross-examined by reference to diaries that are in evidence to suggest that beams needed to be cut or re-cut quite regularly in the period leading up to and including the date of Mr Glover's accident. It does not seem to me to be an overstatement of the effect of Mr Higgins' responses to this line of questioning to say that he did not disagree with it. 83 Finally, Mr Higgins gave this evidence: "Q. At the time of my accident PW Saddington had a licence agreement giving them complete control of the Ultrafloor system and factory, didn't they? A. Yes." William Birkenhead Saddington 84 Mr Saddington is a director of the defendant. His role "was primarily to manage the office procedures, the accounting, the quotations, tendering, and just general directorship". When Mr Glover arrived in Australia to take up his job, the factory was still in the course of being completed. The building was there but the production beds for producing the concrete beams were still being set up. He said Mr Glover's "duties were to work with getting the factory together, making sure that the equipment and the plant was in order, working and operational, and employing staff to run the factory". Mr Glover got the business to the stage of the beam production becoming operational and then continued on in a role as production manager. 85 He said that once the factory was operational and making product, Mr Glover's duties "were to run the factory, to organise the production of the beams, the maintenance of the machinery, the dispatch of the product, the storage of the product, just everything to do with the factory operation". He was also engaged to employ staff as and when necessary. He gave the following evidence: "Q. You were at the factory every day? A. Yes. Q. Did you have much contact with Mr Glover? A. Yes. Q. When decisions had to be made about staffing or about production, did you play a part in those decisions? A. We had discussions from time to time about what was necessary. If there were things that needed to be discussed on a company basis or production basis, he would run it past me, yes. Q. In the early years of production, were there permanent staff who worked in the factory? A. There were some permanent, but there were also some casuals. Q. Where did the casuals come from? A. They either came from labour hire or, if one of our other companies had labour staff, they would come from there to work. Q. Was that a Saddington company? A. Yes. Q. What was it? A. It was a building supply company." 86 Mr Saddington confirmed that after his accident, Mr Glover appeared to be a little slow to move around. He gave this evidence: "Q. Was there any conversation about how he had suffered this disability? A. The discussions I heard from Dave was that he fell over in the factory, stepping off a bed, I think he said. Q. So, that's what he said to you about an injury; is that right? A. Yes." 87 The defendant called no other evidence on the question of liability and did not tender any documents on that issue either. Liability - consideration 88 On the third day of the hearing I enquired of senior counsel for the defendant about the extent of the remaining dispute between the respective liability experts, being Dr Emerson and Mr Ward for Mr Glover, and Mr Dohrmann for the defendant. The following discussion is instructive: "HIS HONOUR: What's the status of the difference or differences between the safety experts in this case? I know Mr Glover's case is that he slipped while standing on the channel. There are several very good pictures of the channel. It's clearly steel trowelled or equivalent and the allegation is, apart from the statutory counts, the significant allegation is, I suspect, there should have been rubber mats of the sort that we are usually familiar with that would have made it safer or something similar. What's the status of the differences between the experts on the issue of the safety of the surface of the channel? RUSSELL: There is not a great difference. Our expert says, well, it's a wet process and you have to expect water to be there from time to time but he also acknowledges that slurry is dangerous and slippery and oughtn't to be there. So there is not a great difference between them. HIS HONOUR: Again without binding you, on the basis of that frank statement of the differences and subject to the fraud issue there may be no difference between you. RUSSELL: In practical terms I think that's probably right. I would need to review Mr Dohrmann, but I think that's right. HIS HONOUR: I haven't a view about this and I haven't read the experts' reports, but I might ask you to see if you can seek some instructions about whether there's likely to be any review of the defence denial of the breach of duty, putting it as neutrally as I can. RUSSELL: I will have a look at that, your Honour. There's an ultimate problem with that in that accepting that water and slurry is potentially dangerous and shouldn't be there and should be broomed out of the way, that leaves the question of, well, whose job was it to do that, and our answer to that is Mr Glover. HIS HONOUR: That goes to contributory negligence, doesn't it? RUSSELL: Not when the person injured is the person who has ultimate control of the factory on the day. I know Mr Glover is going to say Mr Saddington gave him directions, but not as to the day-to-day running of the factory and the fine detail like that. I also thought Mr Glover's case was my employer didn't provide me with sufficient skilled labour to allow me to carry out that task." 89 Mr Russell indicated on the fourth day of the hearing that he no longer required Mr Ward to attend for cross-examination. Dr Emerson was not cross-examined either. 90 Both Mr Glover himself and Mr Khandhar in his written submissions either accepted or embraced as accurate the following general description of the way he put his case: "HIS HONOUR: … My present understanding of your case is that it was unsafe for the defendant to maintain a channel or channels adjacent to the beds, which channels were ungraded or otherwise configured to facilitate the removal of excess or unwanted liquids; that they were excessively smooth, steel trowelled; that the ambient dust created by the cutting operation when mixed with the cooling water from the cutting machine created a slurry that was projected directly on to that slippery channel; as well I suppose as a matter of common sense that the apparently raised lips of the channel facilitated a retention of that slurry, rather than its dispersal; and in the context that that channel provided a person doing the de-dagging or covering with plastic, the only access to that work, that in combination, was a dangerous system. Is that roughly your case? PLAINTIFF: Yes, your Honour. HIS HONOUR: There are other aspects to it as well, I understand, that relate to the speed at which you had to work, the availability of man power, the availability of expert manpower, or the production of a system that, as a combination of those matters, may have reduced the risk or eliminated it entirely on one view. And there are statutory counts to which I haven't had particular regard concerning a place at which you are required to stand or work and access to your work and the need for those two things in all respects to be safe, to paraphrase the statutory count." The liability experts Dr B N Emerson 91 Mr Glover tendered Dr Emerson's report dated 17 November 2003. He inspected the defendant's premises on 21 October 2003. His report focussed primarily on the significance of slurry causing the surface of the channels to become slippery. It was his conclusion that the underfoot surface upon which Mr Glover was standing when he had his accident failed to meet minimum requirements and that it caused him to slip. He said it was "clear . . . that a hazard of a slippery underfoot surface existed at material times and a person stepping onto such a surface is in my opinion at significant and foreseeable risk of injury". Dr Emerson was not cross-examined. Mr R Ward 92 Mr Glover tendered Mr Ward's reports dated 24 March 2004, 4 April 2004 and 30 May 2009. Mr Ward was of the opinion that the defendant did not provide safe working conditions or safe methods of working in that they failed to meet the requirements of the Shops and Industries Act 1962 or of the Regulations under the Occupational Health and Safety Act 1983, ensuring safe working conditions or safe methods of working, because there were floor areas that were not drained clear and were therefore slippery. Mr Ward was not cross-examined. Mr Dohrmann 93 Although Mr Dohrmann was referred to in discussions about whether or not he would be required for cross-examination by Mr Glover, the issue wholly receded in significance, as the defendant did not ultimately tender Mr Dohrmann's report. The defendant's submissions - liability 94 The defendant's written submissions were divided into three categories – common law negligence, breach of statutory duty and contributory negligence. The defendant's submissions with respect to the first category were to the following effect. 95 Mr Glover was recruited from overseas to start up the defendant's factory. He was experienced in the concrete industry and was experienced in the use of slide formers. The directors of the defendant on the contrary had little or no such experience and relied upon Mr Glover to commission and run the factory. Mr Glover had the power to hire and fire staff and was responsible, presumably in the practical sense, for the safe operation of the factory. 96 Mr Glover knew that the process of cutting beams that were resting on the beds used a saw that was water-cooled and that the operation created slurry that became deposited on the channel between the two production beds. Mr Glover had a practice of keeping the factory clean and this included a worker pushing a broom down the channel on a regular basis to remove the accumulated water and slurry. Mr Glover's accident happened on a Sunday when the defendant had to make do with a limited workforce, including Mr Glover and his wife. Mr Glover attempted to obtain other workers for that day but was unable to do so, or was at least unable to get workers who would work past about lunchtime on Sunday. 97 Mr Glover and Scott Thompson were engaged in operating the slide former. Mr Thompson operated the machine and Mr Glover was de-dagging the formed beams and pulling up the roll of plastic over them. As well, Mr Glover was carrying out other duties including assisting Mr Clay with the batching operation and testing the concrete. Mrs Glover was at the far end of the factory cutting beams when the accident happened. She had, however, earlier been down at Mr Glover's end of the factory cutting beams and that operation had created the slurry that had settled on the channel. 98 Mrs Glover had to stand on the channel and on the slurry to use the saw. She had no problems doing so as she took care. Further, on her version, the channel could not be swept while production was occurring on an adjacent bed. The slurry was thus a usual feature of the production process, known to all who worked in the factory, including Mr Glover. 99 Mr Glover answered to Mr Saddington and the board. However, on the day in question Mr Glover was said to be "in charge" of safety in the factory. He knew or ought to have known that slurry had been created by the beam cutting operation and that it would need to be broomed away or that care would have to be taken until it was. The defendant contended that it was simply a matter for Mr Glover to direct one of the workers to spend a very short time to broom the slurry away. He did not do this. There were two other workers to whom that task could have been assigned. 100 The defendant submitted in such circumstances that it had not been negligent. It left the safety in the factory to its most experienced employee, who had the power to direct people as to how they performed their duties. Even though there were time pressures to finish the job that day, it could not be suggested that it was impossible to find someone to do the sweeping, which would only have taken a short time. 101 With respect to the second category the defendant submitted that none of the statutory provisions upon which Mr Glover purported to rely provided him with a cause of action. For example, s 22(1)(a) of the Occupational Health and Safety Act provides that nothing in Division 1 of that Act shall be construed as conferring a right of action in any civil proceedings in respect of a contravention of any provision of the Division, which includes s 15 upon which Mr Glover sought to rely. 102 Mr Glover also sought to rely upon certain provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990. The regulation is a regulation of the type referred to in s 22(2) of the Act, so that a breach of such a regulation does not give rise to a civil action. 103 He also sought to rely upon s 19, s 22 and s 34 of the Shops and Industries Act. The defendant submitted that s 19(1) had to do with cleaning factories generally, rather than the imposition of a specific requirement to remove any waste product from an industrial process while it is being carried on. 104 Subsections 22(2)(a) and (b) provide that where a wet process is carried on in a factory, the floor of every part of the factory where persons are employed shall be grated and drained so that liquids can easily run off. The defendant contended that using the saw to cut beams involved water-cooling of the blade, which is a wet process. That process was carried on on the spare casting bed, not on the channel between casting beds. Water then flowed from that place of work onto the adjacent channel. That wet process was carried on by people standing on the factory floor itself, rather than on the channel, to do the cutting. Section 22(2) requires drainage on the floor of that part of the factory where persons are employed in such process. That would require drainage on the factory floor, rather than in or for the channel. In any event, the defendant contended that Mr Glover was neither engaged in a wet process nor standing on the factory floor when he slipped so that s 22 has no application. Water that runs from the area where a wet process is carried out onto some other part of the factory floor, does not result in a breach of s 22(2): see Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 at 192E. 105 Section 22(4) of the Act requires that all floors be maintained in good order, condition and repair. In this case there is no suggestion that the channel was a "floor", or that it was otherwise than in good order, condition and repair. 106 Section 34 of the Act requires all floors to be of sound construction and properly maintained. The defendant submitted that the section had in terms nothing at all to do with the circumstances of this case. It contended that a failure to sweep slurry off an otherwise unexceptionable floor was not a breach of a section predicated upon notions of sound construction and proper maintenance of that floor. 107 With respect to the third category, the defendant emphasised that Mr Glover was the experienced person in the factory on the day that he was injured and had the power to direct how work was to be done. It contended that he should have been aware that the beam cutting operation had created slurry and that it had not been removed. Furthermore, when Mr Glover stood in the channel to do the de-dagging and the rolling of the plastic, he would have been standing in the slurry, which could not have escaped his notice. 108 The defendant submitted that I should find that Mr Glover was not, but should have been, wearing safety boots, rather than trainers as the evidence of Mrs Glover taken alone would suggest he was wearing. As a matter going to the question of any contribution in fact to the occurrence of the damage Mr Glover may have sustained because he was not wearing safety boots, Mrs Glover gave evidence that she had never experienced any problems working in slurry if such boots were worn. 109 With the exception of Godden, the defendant did not refer me to any authority in aid of any of its submissions in any of these categories. Mr Glover's submissions - liability 110 Mr Glover's submissions emphasised the inadequate staffing levels as being at the heart of his case on liability. In short, Mr Glover was required to attend to an urgent order that necessitated working on a Sunday, but in circumstances where no workers who were available that day were prepared to work for the whole of the day. He submitted that Mr Higgins, for one, was well aware that he had directed that urgent work be done when he knew full well that insufficient staff were available, particularly in circumstances where a high percentage of the work involved re-cutting of beams and hence the production of slurry. Mr Thompson gave evidence that the slurry was not always swept out of the channels because there were not always enough workers to do it. The day that Mr Glover was injured was such a day. Mr Glover had asked Mr Saddington to employ extra labour on a number of occasions, but his requests were denied. The proposed seven-day roster system devised by Mr Glover and briefly implemented by the defendant was not maintained. Furthermore, an end product of this attitude was that there was a high turnover of workers and retention of suitably experienced workers became a problem. 111 All of the experts agreed that slurry was slippery and that it was dangerous to walk on. In these circumstances Mr Glover submitted that the casting bed gullies or channels should have been drained or swept so as to obviate the possibility that workers, including him, would be required to work on or walk over slurry at any time. 112 Mr Glover conceded that the provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 referred to by the defendant did not give rise to an independent cause of action. However, he maintained a submission limited to the proposition that establishment of the criteria with which the various sections deal amounted to prima facie evidence of negligence on the part of the defendant, which Mr Glover could call in aid in his case to establish a breach of his employer's duty at common law. The proposition is uncontroversial in general terms. He submitted that s 22(2)(a) of the Shops and Industries Act was "clearly breached". 113 With respect to the issue of contributory negligence, Mr Glover's written submissions anticipated a wider series of contentions by the defendant than were ultimately made. Mr Glover accepted that he was the most experienced person in the factory and the person with a responsibility to direct how the work was to be done. He also acknowledged that he should have been aware that cutting beams created slurry and that the slurry had not been removed. 114 Mr Glover contended, however, that his loyalty and hard work could not be prayed in aid by the defendant as in some way going to the establishment of contributory negligence. Mr Glover contended that the accident occurred because of his own high work ethic and the circumstances, to which he commendably responded, requiring the factory to work on a Sunday to meet an urgent order. Mr Glover worked with inadequate staff and under less than ideal conditions. If he were inadvertent to a risk that confronted him in such circumstances, it could not amount to contributory negligence. Mr Glover emphasised that he was faced with the need to complete a job urgently and that it was both necessary and unavoidable that he work in an area that was slippery and therefore unsafe. It was not reasonable to expect him to ameliorate or avoid the particular risk himself. He insisted that he was wearing safety boots. Conclusions - liability General 115 In my opinion, the defendant clearly breached its duty to Mr Glover by failing to devise a proper or safe system of work, and by failing to provide a safe place for him to work. This arises in the following ways. 116 The defendant's submissions fail to accommodate the fact that it was not possible to sweep the slurry from the channels without it actually or potentially flowing or spilling over and onto the adjacent production beds. If there were beams in the course of manufacture, the sweeping process could not be performed, and had to be postponed, until the beams had been removed. It was in this period that production of slurry was particularly dangerous. It was in this particular period that Mr Glover was injured. It is wholly beside the point that there may also have been insufficient labour to do the task if the state of production of beams in the factory at the time meant that sweeping could not be done before that occurred. In other words, the system employed by the defendant specifically incorporated and accepted the notion that until the new beams that were being manufactured had been removed from the production beds, no sweeping of slurry of any sort could occur because the beams might be damaged or otherwise adversely affected by it. The system involved no means by which, through proper drainage or other technique, the slurry could be cleared away whilst beams remained on the production beds. 117 Conversely, but to the same effect, the system for cutting beams to shorter lengths itself involved returning them to the unused or vacant production beds for this purpose. That produced the inevitable consequence that slurry would be created in an area where new beams were being manufactured. The defendant did not formulate and employ a system that allowed for the beams to be cut to size in the yard or in some area of the factory where the production of slurry did not foul the channels where workers were required to walk. Unless or until some alternative location for the cutting of beams could be found, the defendant ran the risk, to which employees were thereby exposed, that channels would fill with accumulated slurry whose removal was subject to a potential delay, and in circumstances where no interim disposal method had been provided. For as long as there was such a delay, and the slurry remained in the channels, the factory was unsafe and dangerous. 118 It does not matter that there were or were not sufficient other workers available on the day to sweep or broom the slurry. None of them would in any event have been able to commence to sweep the slurry away before Mr Glover was injured. Mr Glover would presumably have been entitled to insist that none of the freshly manufactured beams was damaged or degraded by slurry and Mrs Glover's evidence makes it plain that removal of slurry by sweeping would have had at least the potential to do precisely that. The fault in the defendant's system was that the production of beams on the one hand and the contemporaneous cutting of different beams on the other hand were incompatible operations, because they together precluded the timely and efficient removal of the slurry produced by the cutting of beams and the factory became and remained unsafe in the meantime. Critically, no attention had been directed to any alternative means of slurry removal that would have allowed or permitted both operations safely to occur together. Mr Glover had suggested the installation of a drainage system but the defendant had not implemented his suggestion before the accident occurred. 119 The defendant did not suggest that Mr Glover had not been exposed to a risk of injury that by the exercise of reasonable care might have been foreseen and avoided. It was not suggested that the risk was not real, or was far-fetched or merely fanciful, or remote, trivial and inconsiderable. In my opinion the evidence supports a finding, and I find, that there was a real possibility of injury being sustained by the class of employees of which Mr Glover was a member, which was foreseeable by a reasonable person placed in the defendant's position. Mr Glover's request for the installation of drainage in the channel was significantly more than a mere complaint, coming as it did from an employee with his particular experience and knowledge. His proposal for an incremental beam size facility falls into the same category. These suggestions or complaints ought reasonably to have alerted even the most recalcitrant or resistant defendant to the existence of a possibility that a failure to dispose of accumulated slurry carried with it a real and serious risk of injury to workers exposed to it on the floor of the factory where they were required to work. The dangerous conditions in the factory were not a one-off or novel event, or the end result of a series of unusual or rare happenings or occurrences. They were the persistent and reoccurring end product of a system that recreated the identical risk on a regular basis. There is no doubt that the risk was foreseeable. 120 Nor did the defendant submit that there was no reasonably practicable alternative system that it could have used and which was free from the risk of which Mr Glover complains. The incremental beam size system was apparently not adopted because the storage yard had not been completed. There is no suggestion that it could not have been or that it has not since been made large enough to work in this way. The defendant did not suggest that drainage was impossible or impractical. Even the provision of rubber mats on the channels as a temporary measure may have been a solution, although the evidence about this barely rises above the anecdotal. More than this, however, the defendant unsurprisingly did not contend that the risk created by the system of work that the defendant adopted, and which led to Mr Glover's injury, was not preventable or that any proposed alternative method of performing the work that was free from risk was available only in a general or theoretical way. 121 The defendant did not contend that Mr Glover's injuries were not relevantly caused by its breach of duty. In my opinion, Mr Glover has clearly established that there was a defect in the defendant's system of work and that his injuries arose out of that defective system. He has established that he slipped upon the slurry that would not have been present if the defendant's breach had not occurred. In other words, there was a direct relationship or connection between the production and presence of slurry and the accident suffered by Mr Glover. No issue is taken that Mr Glover's injuries were caused in the way that he claims. 122 Finally, it was in my opinion unreasonable conduct on the part of the defendant to persist with the system of work that led to the accident. It was both unreasonable in the circumstances of this case for the defendant to institute and maintain the system in the first place, and its failure to eliminate the risk that it created showed a want of reasonable care for Mr Glover's safety. 123 I find that the defendant breached its duty to take reasonable care for the safety of Mr Glover as its employee and that he was injured as a result of that breach of duty. Statute 124 The Shops and Industries Act was repealed on 1 July 2008. It was in force at the time of the matters giving rise to these proceedings. Section 22(2) of the Act was as follows: " Floors, roofs and ceilings 22(1) … (2)(a) Where a wet process is carried on in a factory the floor of every part of the factory where persons are employed in such process shall be of solid material having a smooth and impervious surface, and shall be so graded and drained that liquids can easily run off. A platform, mat or other dry standing place shall be provided at every place on such floor where an employee stands while working. (b) Except in a case to which paragraph (a) applies, the floors of all those parts of a factory wherein persons are employed shall, subject to section 19, at all times be kept dry." 125 The burden of the defendant's submission was that the wet process in this case was carried on by people standing on the factory floor, rather than on the channel, to do the cutting. The section required drainage of the factory floor, rather than the channel, so that the channel was not relevantly the floor of the factory "where persons are employed in such process". Nor was Mr Glover "engaged" in the wet process, even if working nearby. 126 In my opinion, none of these propositions is correct. The expression "the floor of every part of the factory where persons are employed in such process" is not limited to the precise position where the person using the saw to cut beams was required to stand. This follows from the use of the words "every part". The evidence makes it clear that the surface of the channel was a part of the factory upon which people were required to walk. The fact that it was raised up does not mean that it was not the floor of the factory. The steps to an upper level of a factory would be no less the floor of the factory, as opposed to the walls or the ceilings. Finally, nothing in the section ties its operation or applicability to an injury to the person performing the process. Indeed, the section is not concerned with civil liability of a factory occupier or employer to an entrant or employee for breach of a duty of care, as the defendant's earlier submissions made plain. 127 It seems to me that there has been a failure to conform to the requirements of the section. To that extent there is prima facie evidence of a breach by the defendant of the duty it owed to Mr Glover to take reasonable care for his safety. However, for the reasons that I have already given, my determination of this aspect of Mr Glover's case is not critical to the outcome. Contributory negligence 128 It is not in dispute that Mr Glover was experienced and in charge of the operations in the factory on the day he was injured. He had the power to direct how work was to be done. It is also clear that he was aware of the presence of slurry in the channel where he eventually slipped, that it was likely to be slippery, if not certainly so, and that it would not be removed until after the beams cast on the adjacent bed had been removed. 129 Even though it is correct to say that Mr Glover was the defendant's representative on the factory floor, he held that position for operational purposes. He did not assume the defendant's ultimate liability or responsibility for anything that went wrong while he was in charge. The defendant's submissions on contributory negligence, however, have a flavour of such a proposition. 130 In the way that I have concluded, Mr Glover was in a very real sense presented with a fait accompli. The parameters within which he was required to take charge of the factory floor and organise the work were constrained by the defendant's insistence that the system it devised should be maintained despite the risks that it contained. Mr Glover had tried to implement, but had been prevented from implementing, a variation of the system of work at the factory, within the confines of which he was required to operate, which arguably would have eliminated and certainly would have reduced the risk. However, the slip hazard created by the slurry became and remained a fact of life at the Rutherford factory. To the extent, therefore, that the defendant propounds an "ultimately in control of the factory on the day he was injured" type of analysis to support an allegation of contributory negligence, I reject it. The defendant cannot be permitted to benefit from an alleged failing on Mr Glover's part that is said to have created the risk whilst simultaneously seeking to avoid the consequences of ignoring his very recommendations that would have eliminated it. 131 To the extent that the defendant suggests that Mr Glover failed at a fundamental level to take care for his own safety, I also reject it. The lack of sufficient staff is relevant at this point of the analysis. Mr Glover was performing more than one task on the day he was injured. He should not have been required to do so in this case. Even if the defendant cannot be criticised for requiring him to do so as a general proposition, it cannot also suggest that he was at fault for not being more careful when he walked on the slurry. If mere inadvertence will not ordinarily amount to contributory negligence, it is difficult to conceive of a better case of mere inadvertence than the present one. As previously, I find it difficult to accept, and I do not accept, that the defendant can take the benefit of the sweet part of the fruit whilst rejecting the sour. Mr Glover's industry and commitment to his task were beneficial to the defendant and happily accepted by it. His injuries were occasioned in the frenetic circumstances of the day. Any contribution of a so-called failure by Mr Glover to take proper care for his own safety to the injuries that he suffered in those circumstances is either inconsequential or non-existent. It did not amount to contributory negligence. 132 The defendant also contended that I should find that Mr Glover was not wearing safety boots, but was wearing what are referred to as "trainers". This gives rise to both a factual dispute between the parties as to precisely what footwear Mr Glover was wearing at the time and also the legal issue of whether the failure to wear safety boots, if found, was a relevant contributor to the accident. 133 Mrs Glover's evidence on the issue was dramatic and credible. She had resorted to a vernacular assessment of her former husband's conduct when he approached her in an injured state following his fall, when she said, "What the bloody hell have you done?" When Mr Glover said he had slipped and fallen over she said, "I'm not surprised in those trainers". The defendant embraced that evidence even notwithstanding the curious evidence concerning Mrs Glover's proportional interest in the outcome of the proceedings, and the available basis for an assertion, ultimately not advanced, that she had a motivation to assist Mr Glover's case. In the present context the defendant would presumably contend, although it did not do so in terms, that Mrs Glover's credibility is enhanced by her answer because, having regard to her particular interest in the outcome of the case, it was inimical to her interest and thereby more, rather than less, likely to be consistent with truth. 134 Mr Glover's evidence was particularly adamant and indignant. He expressed himself strongly, to the point of almost becoming alarmed, that it could ever be suggested he would do so foolish a thing as to wear anything other than safety boots in a factory. That was his training and his custom and it never varied. Furthermore, slurry contained lime and the conditions of the factory were such that he could not have tolerated them in footwear that was not waterproof. He denied that he was wearing trainers. 135 Mr Clay's evidence was not significantly helpful. Although it was agreed that he had no recollection of what Mr Glover was wearing, and could never recall anyone in the factory wearing anything except safety boots, he was not tested on his answers and I am not able easily to weigh his evidence against the versions given by Mr and Mrs Glover. 136 I found both Mr and Mrs Glover to be credible and reliable. On this point their evidence is in conflict. I see no legitimate basis upon which to express a preference for the evidence of one over the evidence of the other. Any attempt to do so would be artificial. The defendant bears the onus of proof on this issue and has failed to prove the facts it relies upon. 137 Furthermore, I have been provided with no evidence that "trainers" are any more or less likely to contribute to a slip on slurry than work boots. There was no evidence concerning the condition of the putative footwear, and no opinions were expressed, other than inferentially by Mrs Glover, that trainers were more likely to be slippery and hence more dangerous on slurry than boots or anything else. I am not entitled or prepared to draw upon my own experience, having regard to the unique collocation of factors at play in the present case, nor was I asked to do so. The defendant bears the not inconsiderable burden of proving that trainers would have contributed to Mr Glover's injuries if he had been wearing them. I am not satisfied that it has done so. 138 I am satisfied in all of these circumstances that Mr Glover did not contribute to his loss and damage by reason of his own negligence. Damages 139 As a preliminary, but important, matter I observe that senior counsel for the defendant made the following concession on the third day of the hearing: "HIS HONOUR: I really should inquire, is there a medical and disability issue in these proceedings? RUSSELL: No, there is not. The only medical issue will be what has been the plaintiff's capacity to work in [ sic , "since"] the accident but there is no issue that he suffered a quite serious back injury, he had an operation and is disabled from doing the more physical aspects of the work he used to do." 140 The nature and extent of the evidence that needs to be considered under the present heading is therefore considerably informed by Mr Russell's response. Non-economic loss 141 The defendant conceded that if he succeeded on the issue of liability Mr Glover would become entitled to damages for non-economic loss. Section 151G(2) of the Workers Compensation Act 1987 provides as follows: "(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded." 142 The amount in force at the date of Mr Glover's injury adjusted in accordance with s 151G(7) and s 151G(8) was $215,550. The defendant expressly observed that thresholds in s 151G(4) and s 151G(5) could be ignored. Section 151H only applies to claims for damages commenced after 27 November 2001 and can also be ignored for present purposes. 143 The defendant submitted that Mr Glover's non-economic loss should be calculated as 30 per cent of a most extreme case or $64,665. Mr Glover's corresponding contention was that he represented 60 per cent of a most extreme case or $129,330. I consider that Mr Glover's entitlement represents 50 per cent of a most extreme case or $107,775. This is for the following reasons. 144 There is no dispute that Mr Glover suffered a significant injury to his back, including disruption to his lumbo-sacral spine. Dr Gutman reported on a CT scan of Mr Glover's spine on 5 May 1994 noting a moderate to large disc herniation on the right posterior aspect of the L5-S1 level. The herniation compressed the first right sacral nerve root at its exit from the sac. Within weeks, Mr Glover had been referred by Dr Harvey to Professor Ghabrial, who operated upon him on 8 June 1994, excising the prolapsed and sequestrated disc and performing a lumbar discectomy. 145 Remarkably, in my opinion, Mr Glover returned to work with the defendant in mid-July 1994. Stocks had been permitted to run down in his absence and he was required to work long hours as a result. In October 1994 he went off work apparently exhausted, and the defendant terminated his employment on 14 November 1994. 146 Professor Ghabrial has recommended that Mr Glover avoid heavy lifting, repetitive work and excessive bending, as well as sitting or standing for excessive periods. The recommendations were not limited in time. As early as his report of 30 November 1994, Professor Ghabrial was of the opinion that Mr Glover would remain permanently unfit for any work performed in disregard of these recommendations. There is a prospect that Mr Glover will require further surgery. Dr Matheson, who examined Mr Glover on behalf of the defendant, does not share that view. Even though Mr Glover saw Dr Millons at the defendant's behest, no report from him has ever been served. Every doctor who has treated Mr Glover since he last worked in 1998 has expressed the view that he should eventually come to further decompression surgery and a multilevel spinal fusion. Dr Ghabrial has expressed the view that further surgery in the form of disc excision and spinal fusion including instrumentation would be theoretically appropriate but could not be guaranteed to clear Mr Glover's symptoms. Mr Glover's recent deterioration in his symptoms has corresponded to him giving greater consideration to a surgical option. 147 Professor Ghabrial expressed the opinion in his report of 29 October 2009 that Mr Glover was then unfit for any type of employment. He said that Mr Glover had been unfit for any type of work since he had seen him in January 2000. His condition had stabilised. Mr Glover was assessed as having a permanent loss of the efficient use of his right leg at or above the knee of 25 per cent and a corresponding loss in the left leg of 20 per cent. He was assessed to have a permanent impairment of the back of 50 per cent. 148 Dr Matheson described Mr Glover as "a man with some disability". He somewhat curiously described that disability as "the usual disability expected of a person who has had a back operation". Dr Matheson thought Professor Ghabrial's "assessments of impairment were a bit on the high side". He expressed agreement with Dr M Hutton that further surgery could make Mr Glover worse. He disagreed that the chances of improvement following surgery were likely to be as high as 50 per cent. Dr Matheson agreed with Professor Ghabrial's assessments concerning Mr Glover's past fitness for employment. 149 The defendant conceded, quite properly in my view, that Mr Glover had "a quite serious back injury". Mr Glover did not give articulate evidence of the way that this affected him, except in the context of the need for domestic assistance and care. This is referred to separately later in these reasons. This is explained in large measure by the fact that Mr Glover was unrepresented when he gave his evidence in chief. However, no suggestion has been made that any of Mr Glover's complaints concerning his condition made to his doctors was anything other than a reliable record of his condition from time to time. I propose to treat such material as a reliable statement of how he has fared since the accident. 150 There is no doubt that Mr Glover has sustained a serious injury, which has disabled him for over 15 years and will continue to do so for the rest of his life. It has been and continues be painful, distressing and disabling and has adversely affected the quality and amenity of his life. It has restricted and constrained his domestic, recreational and social activities in ways that have not been and will never be adequately ameliorated or relieved by treatments or medication to which he has reasonably had access. In all of the circumstances I consider that Mr Glover's condition corresponds to at least 50 per cent of a most extreme case. Past economic loss 151 The defendant acknowledged that its concession that Mr Glover was at least 30 per cent of a worst case for the purposes of assessment of his non-economic loss foreclosed its ability to argue that he was not entitled to past economic loss if its liability in negligence were established. Section 151I in force at the relevant time applied to an award of damages for past or future economic loss for loss of earnings or loss of earning capacity. Section 151I(2) provided that the Court is to disregard the amount (if any) by which a plaintiff's weekly earnings would (but for the injury) have exceeded the maximum amount of weekly payments of compensation under s 35. Section 151I(3) referred to indexation of the maximum amount of weekly compensation under that section. Section 151I is in these terms: "151I Calculation of past and future loss of earnings (1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (2) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (3) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35." 152 Section 35 provides as follows: " Maximum weekly payment (1) The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000. (2) If the amount mentioned in subsection (1): (a) is adjusted by the operation of Division 6, or (b) is adjusted by an amendment of this section, the maximum weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. (3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted." 153 The amount for which s 35 provides is indexed. When Mr Glover was injured the figure was $1,063.50. By his 65th birthday it had risen to $1,684.30. 154 The defendant calculated that Mr Glover's theoretical maximum entitlement to economic loss, which is now all past economic loss, should be determined in accordance with a schedule setting out the applicable sums calculated by reference to these provisions between November 1994 when Mr Glover ceased employment with the defendant and his 65th birthday in 2009. The schedule did not take account of Mr Glover's residual working capacity, about which the defendant made additional submissions, or any reduction for contributory negligence, which is now no longer applicable in view of my findings on that issue. The defendant submitted that Mr Glover could not obtain an award for economic loss that is higher than the figures in this schedule because of the restrictions in s 35 and s 151I of the Act. The defendant's schedule was relevantly in the following form: 155 The defendant contended, "Mr Glover's earning capacity was reduced but not destroyed". From 22 April 1995 until 8 July 1995 he worked for an organisation called Mulia Group in Jakarta. The precise nature of his work is not revealed in the evidence. Then from 29 September 1995 until 31 March 1996 he worked for the Hyundai Corporation. Once again his precise duties are not specified. Between 10 October 1996 and 1 May 1997 and again between 25 May 1997 and 7 March 1998 he worked for Christiani & Nielsen. Mr Glover has not worked since March 1998. 156 The defendant submitted that Mr Glover has at all times had a residual earning capacity. Mr Glover tendered reports from Dr Robert Pryor, a vocational psychologist that had been obtained by the defendant, dated 17 August 2004 and 2 March 2009 and the defendant relied upon them in support of its case. Dr Pryor said the following in his second report: "He may have some industry contacts which could facilitate a resumption of work in the construction industry but after eleven years such a prospect appears unlikely. Another possibility would be for Mr Glover to start his own business but the start up costs and the difficulty of obtaining work may also mitigate [ sic ] against this possibility. As a result I am inclined to reiterate the options noted in my earlier report as being probably the most appropriate for Mr Glover were he to consider a resumption of employment. These options seek to utilise his background in the construction industry and yet at the same time not make such physical and emotional demands on someone who has been out of the industry for over a decade and whose pain levels continue to be at disturbing levels. . . These specific options that Mr Glover could consider include: Building Manager, Caravan Park and Camping Ground Manager, Insurance Risk Surveyor, Sales Representative – Building Products, Building Information Officer and General Clerk. Although Mr Glover expressed some intention in the past while in Australia to take up possibility of further training given his age this seems unlikely therefore no specific options based on further training are outlined. This assessment was undertaken from a psychological perspective. Note was taken of Mr Glover's self-reported physical limitations. However, evaluation of these limitations is beyond this assessor's area of expertise." 157 Dr Pryor's first report contained a detailed description and analysis of Mr Glover's psychological condition and his obsessive dedication to the present case, to the practical exclusion of many other aspects of his life. He also said this: "Mr Glover demonstrated pain behaviours including fidgeting and mild complaint. I observed his sitting tolerance to be in excess of 75 minutes. I gave him the option of a break before commencing psychometric testing but he opted to keep going. As a result this meant that he was able to stay in the office for over four hours without desperately needing to go out to have a long or short break or walk." 158 Mr Glover's observed sitting tolerance had reduced to 60 minutes by the date of Dr Pryor's second report. 159 The defendant acknowledged that the consensus of medical opinion was that Mr Glover has been disabled from heavy work that would further strain his injured back. It submitted that he had not been similarly disabled from supervisory work or from working in some other sedentary occupation. When he could not do the heavy work for Christiani & Nielsen, he was transferred to their Singapore office to do supervisory work, which he found he could manage. He also applied for a large number of other jobs between 1997 and 2000, although he was unsuccessful in obtaining employment. Mr Glover had agreed that he had not applied for any jobs since 2000, in which year his first trial took place. 160 Mr Glover said that since 2000 he had been engaged full-time in preparing for his Court of Appeal hearing in 2003 and thereafter for this one. He has chosen to live in Australia on a tourist visa in a de facto relationship and is legally not entitled to work by reason of his current immigration status. The defendant submitted that Mr Glover's physical capacities would not have prevented him from doing some work during that time either in his native United Kingdom or elsewhere overseas. 161 The defendant acknowledged that Mr Glover was "a man of skill and experience, who had shown a propensity to work overseas in the past" and there is evidence that jobs would have been available to him overseas. Mr Glover claimed that he was entitled to be compensated for a loss of the opportunity to exploit these areas of employment by reason of his injuries and disabilities. However, the defendant submitted that the limitations imposed by the combination of s 35 and s 151I of the Act made a separate consideration of such a claim a matter of theoretical interest only. Mr Glover can recover no more than the maximum amounts referred to in the defendant's schedule. This is so whether Mr Glover is notionally considered to be losing income in Australia or overseas. 162 The defendant also contended that while the medical evidence demonstrated that Mr Glover could not do physical, hands-on work, he would have been capable at all times since he left the defendant of working in a supervisory role, in which he was trained and experienced. The defendant submitted in those circumstances that Mr Glover had suffered a loss of earning capacity not exceeding 20 per cent. 163 The defendant also submitted that Mr Glover had failed to mitigate his loss contrary to s 151L(1) of the Act which provides as follows: " 151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, (c) whether the injured worker has duly complied with the worker's obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)-(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker." 164 The defendant argued that Mr Glover had voluntarily determined to reside permanently in Australia, in which country he has been unable to work legally because of immigration restrictions. Mr Glover should have sought work overseas during the period since the Court of Appeal's decision in 2003. His insistence that he remain in Australia since that time had to be contrasted with his obligation to mitigate his damages by seeking suitable alternative employment, in his case overseas, and he bore the onus of proving that he had taken reasonable steps to do so, which onus he has failed to discharge. 165 However, Mr Glover has no such onus unless the defendant establishes that it made Mr Glover aware that he was required to take the step in question: s 151L(3). There is no evidence before me that the defendant or its insurer made Mr Glover aware that he was required to take the step referred to in s 151L(2)(b). As the defendant promotes only Mr Glover's failure to seek suitable alternative employment as a basis for contending that he failed to mitigate his damages, the provision does not apply, because "the court assessing damages does not have to take the matters referred to in [that paragraph] into account". 166 Mr Glover submitted that he was self-evidently not a person who did nothing after the accident. He secured and persevered with employment overseas for over four years. Some of these jobs were of a supervisory nature. He continued with this work until he could no longer cope, because the pain he was experiencing prevented him from working any more. Exhibit "L" is an impressive series of letters from companies to which Mr Glover applied for work, particularly in 1999 and 2000. He appears to have sought employment in an energetic way during this period without success. Mr Glover's evidence was that he was never favourably considered for employment at any time after disclosing that he was not fully fit. 167 Mr Glover emphasised that he struggles sitting for any length of time, that standing was also troublesome and that he could not walk on uneven ground. In such condition he emphasised that he would have been unreliable and effectively unemployable. After 1998, even a low level supervisory position would have been beyond him. That is what caused him to cease work overseas, as he could no longer cope. 168 Mr Glover emphasised what was said by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61 at [50] – [54] as follows: "[50] In Magnou v Australian Wool Testing Authority Limited [2007] NSWCA 357 the Court (Tobias and McColl JJA and Handley AJA) at [20] accepted that the general principles that apply to the assessment of past and future economic loss were as set out by McColl JA (Handley and Bryson JJA agreeing) in Rabay v Bristow [2005] NSWCA 199: '[73] Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed ( Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person : H Luntz , Assessment of Damages for Personal Injury and Death (4th ed) at 118 [1.9.20]. [74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ. …. [79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v J C Hutton Pty Limited [199] HCA 20; (1990) 169 CLR 638 at 643 per Deane Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters …': Donald v McKeown [2004] NSWCA 285 at [38].' (emphasis added) [51] For the purposes of this case it is necessary to expand the proposition in Rabay [73] concerning proof of loss of earning capacity. [52] In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity "ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate", a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that "the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity." [53] The relative responsibility of the parties for adducing evidence going to the issue of residual earning capacity was discussed in Linsell v Robson [1976] 1 NSWLR 249 (at 254 – 255) by Glass JA who stated: 'I should like to recapitulate what I said in Davies v Lumsden … concerning the evidentiary responsibility in cases of this kind of the real defendant, viz the insurer, and the risks it runs in pursuing its policy of testimonial inactivity. The plaintiff, of course, has the ultimate burden of proving the extent of his loss. The plaintiff tendered evidence of the disabilities which severely restricted his earning capacity, the failures which he encountered in his attempts to get work. The evidence of attempts was slight, but whether the proved record of failure is extensive or not, the plaintiff is trying to prove a negative. The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff's meagre materials will be held sufficient to support a conclusion, which in this case the trial judge clearly reached, viz that the plaintiff retained only a severely restricted earning capacity, the exercise of which was unlikely to produce a large income.' [54] Reynolds JA (with whom Hope JA agreed) made observations to like effect in Yammine v Kalwy [1979] 2 NSWLR 151 (at 155) (approved by Heydon JA in Moss (at [69])) that: '[I]n seeking to quantify his damages [for lost earning capacity] a plaintiff could be well advised to offer such evidence [as to the level of wages he might earn, notwithstanding his handicap]; and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither in the absence of such evidence, could complain, to the same effect, at any quantification arrived at.' [55] In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132-133) per Sugarman JA: see also McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353 (at [64 ff] per Ipp JA (Beazley and Basten JJA agreeing))." 169 Mr Glover emphasised that it is insufficient for a defendant to hypothesise about a plaintiff's unexercised earning capacity. He submitted that the "argument must be tethered to the reality of an injured, middle aged man on the open labour market". He submitted that no employer would take him in even a supervisory role and that the existence of such a job had not been proved beyond the purely theoretical. This was a reference to a series of allegedly suitable jobs of the sort referred to by Dr Pryor. 170 Moreover, Mr Glover contended that it was not open to the defendant to suggest that he made a conscious decision to remain in Australia to pursue this case rather than to return to the United Kingdom to seek employment. Mr Glover emphasised that he has been permanently unemployable since 1998. Mr Glover was not prepared to concede that he retained any unexercised or residual earning capacity exceeding 10 per cent. 171 As at 1 May 1994 Mr Glover was paid an annual salary of $70,000 with the use of a company car plus petrol. He was paid $5,833 gross per calendar month or $3,776 per calendar month after tax. Mr Glover suggested that that corresponded to $944 net per week. However, the net weekly sum is less than that because the calculation is made on a calendar month basis, rather than four-weekly. Adjusted for this difference, the weekly amount is approximately $885 net per week. 172 Mr Glover referred to evidence produced by the defendant that showed that Mr Thompson, who replaced Mr Glover, was given salary increases between 1996 and 2006, rising from $611 net per week when he assumed the role of factory manager to $1,111 net per week when he left. That represented an overall increase of 82 per cent or approximately nine per cent per annum. Applying the same percentage increase to Mr Glover's weekly net income for the periods during which he was unemployed, Mr Glover submitted that his net weekly income at all times exceeded the adjusted maximum amount allowable in accordance with s 35 and s 151I of the Act, so that he became entitled to have his loss of earning capacity determined by reference to that maximum adjusted amount. 173 This is not completely accurate because Mr Glover's net weekly wage does not exceed the s 35 statutory maximum until the period commencing 1 October 1997. Adopting the nine per cent per annum increase assumption, and comparing that figure to the equivalent sum under s 35, Mr Glover's unreduced loss of income should be calculated at the initial net weekly rate of $885 from 14 November 1994 until the net weekly sum increased at that rate begins to exceed the maximum weekly amount for which s 35 provides. By my calculation, and adopting this approach, Mr Glover would be entitled to $885 net per week from 14 November 1994 until 30 September 1995, then at the rate of $964.65 until 30 September 1996, and then at the rate of $1,051.45 until 30 September 1997. From 1 October 1997 the s 35 rate becomes $1,110.90 whereas Mr Glover's wage indexed at nine per cent will have by then have increased to $1,146.10, or in excess of the statutory amount. Using the same comparison, Mr Glover's hypothetically calculated weekly wage from the defendant continued thereafter to exceed the maximum weekly amount under s 35 until his retirement 29 January 2010. This is shown in tabular form as follows: Period Net wage from defendant Maximum weekly s 35 payment 14 November 1994 to 31 March 1995 $844.00 $1,063.50 1 April 1995 to 30 September 1995 $844.00 $1,066.50 1 October 1995 to 31 March 1996 $964.65 $1,071.90 1 April 1996 to 30 September 1996 $964.65 $1,078.70 1 October 1996 to 31 March 1997 $1,051.45 $1,086.40 1 April 1997 to 30 September 1997 $1,051.45 $1,090.20 1 October 1997 to 31 March 1998 $1,146.10 $1,110.90 1 April 1998 to 30 September 1998 $1,146.10 $1,119.30 1 October 1998 to 31 March 1999 $1,249.25 $1,139.10 1 April 1999 to 30 September 1999 $1,249.25 $1,159.00 1 October 1999 to 31 March 2000 $1,362.00 $1,178.10 1 April 2000 to 30 September 2000 $1,362.00 $1,197.20 1 October 2000 to 31 March 2001 $1,484.25 $1,210.20 1 April 2001 to 30 September 2001 $1,484.25 $1,237.80 1 October 2001 to 31 December 2001 $1,617.81 $1,259.20 1 January 2002 to 31 March 2002 $1,617.81 $1,259.20 1 April 2002 to 30 September 2002 $1,617.81 $1,281.30 1 October 2002 to 31 March 2003 $1,763.40 $1,299.70 1 April 2003 to 30 September 2003 $1,763.40 $1,321.90 1 October 2003 to 31 March 2004 $1,922.10 $1,348.60 1 April 2004 to 30 September 2004 $1,922.10 $1,373.10 1 October 2004 to 31 March 2005 $2,095.90 $1,398.30 1 April 2005 to 30 September 2005 $2,095.90 $1,420.50 1 October 2005 to 31 March 2006 $2,284.55 $1,449.50 1 April 2006 to 30 September 2006 $2,284.55 $1,479.40 1 October 2006 to 31 March 2007 $2,490.15 $1,506.90 1 April 2007 to 30 September 2007 $2,490.15 $1,535.90 1 October 2007 to 31 March 2008 $2,417.30 $1,563.50 1 April 2008 to 30 September 2008 $2,714.30 $1,594.00 1 October 2008 to 31 March 2009 $2,958.55 $1,621.60 1 April 2009 to 30 September 2009 $2,958.55 $1,654.40 1 October 2009 to 29 January 2010 $3,224.80 $1,684.30 174 From the total maximum sum arrived at by adopting this approach must be deducted the figures that relate to the periods between 22 April 1995 and 9 July 1995, 27 September 1995 and 22 April 1996, and 13 October 1996 and 7 March 1998, during which periods Mr Glover was employed overseas as earlier described. 175 The fact that Mr Glover was able to obtain and retain employment for these periods demonstrates that at least during these periods he retained and exploited an earning capacity notwithstanding his injuries and restrictions. The issue for determination is whether or not his cessation of employment for the last time in March 1998 was a genuine and reliable reflection of an effective total and permanent loss of earning capacity at that time, or something less, such as a merely reduced earning capacity due pain and restrictions that led to a decision to cease work, or even something wholly unrelated to a genuine total or partial loss of physical capacity for work. 176 In March 1998 Mr Glover was 53 years old. By then he had demonstrated a long and productive working life during all periods when he was fit and even including the periods when he was not. I am satisfied that his work ethic is authentically characterised by the vigour and determination with which he approached his work for the defendant, enduring long hours and weekend work under trying conditions and with little support for the industrial and logistical difficulties that confronted him. There is no demonstrated reason why Mr Glover would change his previously well-documented enthusiasm for hard work and choose to cease work entirely unless there were sound reasons or causes for him doing so. Mr Glover was able at all times to command relatively large wages, reflecting his experience and no doubt the recommendations of previous employers upon which presumably he was successively able to rely when seeking new work. Mr Glover puts his case upon the basis that by the time he ceased work for the last time he was physically no longer able permanently to work and resigned himself to unemployment as a result of his physical incapacities. As I have indicated earlier, there are a great number of letters from prospective employers to whom Mr Glover applied for work that bespeak his unsuccessful attempts to re-enter the workforce. All of these matters lead me to conclude that Mr Glover became totally and permanently incapable of working in any employment for which he was suited in November 1994 as the result of the injuries he sustained while employed by the defendant. His periods of work since then reflect his determination to continue in employment despite his condition and do not demonstrate that he was not genuinely incapacitated. On the contrary I find that Mr Glover continued to work overseas in these periods despite considerable disability until doing so became too much for him in March 1998 when he realised, and others confirmed, that his effective working life had ceased. 177 I do not consider that Mr Glover retained any effective residual earning capacity that he was capable of exploiting during the time since then. Far from approaching the matter upon the basis of a retained capacity, and hence suitability, for some hypothetically available positions of the sort suggested by Dr Pryor, Mr Glover's own efforts demonstrated that there was no such job for him to be found. As the authorities suggest, the question of whether or not a disabled worker is or is not possessed of an exploitable capacity to earn income is to be approached with a realistic understanding and appreciation of the industrial market for labour of the sort that the injured worker could provide and the likelihood in that same setting that any assumed employer would have been prepared or able to provide employment that would produce a realistic opportunity for the injured worker to do so. In other words, the credit to which the defendant is entitled for Mr Glover's retained capacity for work must be assessed in the real world and not merely theoretically by reference to economists' notions of labour supply and demand. I do not consider that Mr Glover had any capacity for work that he was able to exploit for commercial purposes once he finally ceased work in March 1998. Having heard and considered all of the evidence, including a quite extended opportunity to observe Mr Glover during the course of the proceedings, I am satisfied, if there were any work that Mr Glover could have done since then, in the realisation of some residual earning capacity, he would have done it. I consider that, contrary to the defendant's submission, Mr Glover's earning capacity was not merely reduced but was in fact destroyed. 178 I consider that Mr Glover is entitled to an amount for past economic loss calculated by reference to the shaded figures in the table I have prepared, representing either his net weekly wage from the defendant when it was less than the maximum s 35 amount, or representing the maximum s 35 amount when his weekly wage indexed at nine per cent per annum from 1994 exceeded that amount, less wage loss at the relevant rates for the periods when he was employed. According to my calculations, that final sum is $897,996.55. I would ask the parties to check my calculations and provide me with confirmation that they are correct or with an alternative figure in substitution for that figure if they are not, calculated in the way I have described. 179 Section 151I(1) provides that in awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under s 35, even though that maximum amount under section 35 is a maximum gross earnings amount. Section 35 speaks in terms of the "maximum weekly payment of compensation to an injured worker". It does not say that for the purposes of assessing such entitlement, the Court shall reduce or adjust any sums provided for by, and awarded under, s 35 by reference to the applicable income tax rates for that gross wage or salary. The s 35 figures are a measure of the maximum amount payable to the injured worker, which is on ordinary principles to be calculated net of income tax. The s 35 amount applies when the worker's net income exceeds that amount. There is no logic or warrant for then reducing the "gross" s 35 sum by deducting tax at the notionally applicable rate, because that would have the potential to reduce the amount of compensation payable to the worker to a sum below the worker's actual net weekly wage or salary that triggered resort to the s 35 figure in the instant case. If the defendant has intended by its submissions and schedule to promote a different approach, I reject it. Past loss of superannuation benefits 180 I would also ask the parties to provide me with their agreed assessment of past loss of superannuation benefits calculated by reference to the figures I have adopted for Mr Glover's past economic loss at the applicable rates over the period in question. As the past loss of superannuation figure is calculated by reference to an employee's earnings base, the net figures used for the purposes of Mr Glover's loss of earning capacity will have to be "grossed" up for superannuation loss calculations. Past domestic assistance 181 The fact that I have found that Mr Glover does not retain a residual earning capacity is not coextensive with a finding that he is totally incapable in a domestic setting from caring for himself or from attending to all of the domestic tasks that are necessary for his daily life. In this respect I reiterate that I have had the benefit of observing Mr Glover throughout this case in Court standing and sitting and handling documents and files as he either presented his own case or assisted and instructed as others did so. He gave evidence of the extent to which he required assistance with the most trivial of tasks, such as making toast or preparing small meals and washing up, through the usual gamut of domestic chores such as washing clothes, making beds, cleaning the house and bathrooms, vacuuming and ironing and mowing the lawn, washing the car and attending to the garden. Repairs and maintenance also achieved their usual emphasis. 182 Mr Glover's partner Ms Lisowski gave evidence about the assistance that she provided to him in the period from September 2000 to the present time. The claim that is now made is for 22.5 hours per week. The first six hours of any such claim are not compensable in accordance with s 151K(4) and the first six months of any such claim are not compensable in accordance with s 151K(2). The claim therefore is for 16.5 hours per week starting from March 2001. There is no issue that a reasonable average rate over the period to date for gratuitous care is $19 per hour. 183 Mr Glover relies upon the reports from Mr Maddock dated 10 December 2009 and Ms Flaherty dated 9 December 2009. The claim for future domestic assistance is formulated as follows: (a) Garden/home maintenance services – average 2 hours per week; (b) Shopping service – average 2 hours per week; (c) Domestic assistance – average 6 hours per week; (d) Meal preparation – average 4 hours per week; (e) Personal care – 14 hours per week. 184 In accordance with s 151K(3), no compensation may be awarded if the services for which compensation is claimed would have been provided to Mr Glover as the injured worker even if he had not been injured. 185 Mr Glover gave evidence referable to this part of his claim on 18 March 2010 pursuant to leave granted by me to re-open his case. The defendant submitted that he was guilty of exaggeration and prevarication when he did so. This proposition was developed by reference to the way in which Mr Glover originally formulated his claim under this head compared to the way in which it was ultimately presented to me. 186 On 3 June 2009 Mr Glover filed a statement of particulars dealing with injuries, disability and economic loss. He also filed on the same day another document entitled "Updated Supplementary Particulars". This document set forth his claim for superannuation, a claim for services, a claim for psychological injury, additional particulars of disabilities, and past and future out-of-pocket expenses. Mr Glover subsequently gave evidence many times that he had spent much of the last 10 years preparing this case. He did not have the assistance of lawyers during most of this time. The defendant contended, however, that it should be accepted, given the time that he had to prepare his case, and the attention that he gave to doing so, that the particulars filed by Mr Glover on 3 June 2009 would have been accurate. 187 Mr Glover certainly attempted during his evidence to present himself as a person who is significantly disabled in all aspects of his domestic life. By contrast, his earlier particulars indicated that he had been able to cook, although standing, reaching and bending caused back pain. In evidence before me he said that he could only make a cup of coffee, a piece of toast or a sandwich. His written particulars indicated that he has washed dishes after meals, but is required to do it more slowly, sometimes intermittently with pain. This ability has now entirely left him. 188 Furthermore, his earlier particulars indicated that he could change linen, make beds and turn the mattress, albeit with pain. He can no longer do this at all. Cleaning the bathroom and the toilet were intermittently achieved in the past with pain, but have also been beyond him since 2003. He was until 2002 able to trim lawn edges with a spade. In his oral evidence Mr Glover said that he only did this a few times until 2002. He particularised an ability to go shopping but only with difficulty. In his oral evidence he said that he was now limited to buying a loaf of bread or a newspaper. 189 Mr Glover's claim in the June 2009 particulars for domestic services was for "an average not exceeding two hours per day". By contrast, the current claim is particularised as a need for domestic services at least three hours per day and four hours per day into the future. This discrepancy is explained as a mistake that Mr Glover says he must have made when copying particulars from a 2003 document when the matter was before the Court of Appeal without any regard for whether the particulars were accurate or not. The defendant submitted that this was to be contrasted with the very close and detailed involvement with his case that Mr Glover has otherwise demonstrated and should therefore be rejected. 190 The defendant also emphasised the following portions of the transcript of Mr Glover's cross-examination on this area: "Q. Are you telling me that at night you cannot wash up two plates without getting pain? A. When you cook there's more involved than just washing up plates. Q. What is the answer to my question, Mr Glover. Do you tell me that at night you cannot wash up two plates without getting pain? A. I could do, like I said cups, I could do two plates and that would be it. Q. And you can do cutlery as well, can't you? A. No, by the time you get down to cutlery and cooking utensils, no I can't. Q. I didn't ask you about cooking utensils. You would be able to wash the two knives and the two forks and the two spoons from the evening meal, wouldn't you? A. I would just about be able to do that, yes. Q. And you don't try at the moment, do you? A. I have tried many times. Q. So you do the washing up at night, do you? A. I said I have tried many times, not now. Q. But have you done it? A. Not lately, no. ***** Q. How do you get to the shops? A. I drive because it's only two minutes up the road. Q. So you drive there? A. To the shops, yes. Q. Why did you feel the need to add to your answer "only two minutes up the road"? A. Because it's close. Q. You are trying to impress upon the Court the level of your perceived disabilities, is that right? A. No." 191 The defendant submitted that Mr Glover adopted an advocate's role in giving this evidence. It also drew attention to the following portion of Mr Glover's cross-examination: "Q. I need to take you to a different matter. You told us that before the accident many of the domestic activities, particularly cooking, were shared 50:50 between yourself and your ex-wife, correct? A. Yes. Q. But isn't it the case that before the accident your ex-wife used to do much more of the cooking than you did? A. I would say she most probably did more of it, yes. Q. Not 50:50 she did more? A. It was near enough 50:50. Q. You remember, don't you, that from time to time you've provided particulars of your claim not just by filing documents in court but by sending faxes to Spark Helmore the lawyers for the insurer, correct? A. Yes. Q. Can I read to you from one of 2 July 2004, one of your faxes under the heading "particulars of claim for domestic assistance" you wrote this "cooking depends on what was cooked approximately 1 hour per day when on my own and approximately 15 minutes per day when with my wife, there were no children involved in our marriage". That's what is in your particulars back in July 2004. Is that accurate? A. I'd say yes. Q. Wasn't it the case that she did more of the domestic duties than you did? A. I wouldn't say more. We did 50:50. Q. But in relation to cooking when you were with your ex-wife you did cooking of about 15 minutes per day, is that right? A. Maybe yes, maybe. Q. That's what you said in the particulars. Were they right or wrong? A. We would only have one meal in the day, in the evening and that was it. Q. What I've read to you is from your particulars of July 2004. Is that right or wrong? A. It could be more because like I said in those times I didn't take it exact times and minutes of what we did. I know we did it more or less 50:50. Q. Does that mean your particulars you supplied in July 2004 in relation to the need for assistance with cooking were wrong? A. I wouldn't say it was wrong. It's what I thought at the time because I know we did everything 50:50. Q. But your particulars in relation to cooking rather suggest that you did 25% and your ex-wife did 75%. Isn't that what the particulars say? A. Well, I know it was more or less like 50:50. Q. But the particulars say something else, don't they? A. Yes. Q. And they were done now 6 years ago? A. Yes. Q. Is it also the case that when you were with your ex-wife she did more of the housework in terms of minutes or hours spent than you did? A. I imagine she may have done a little bit more but as far as I know we did 50:50 because we were both working at the same time. I would do bits of the cooking, she would do bits. I would normally do the washing up at those times. Q. You worked long hours and she worked long hours? A. Yes." 192 The defendant submitted that the evidence given by Mr Glover was exaggerated and was aimed at giving an impression of the need for domestic and related assistance that was far greater than the true position. 193 Mr Glover's partner Ms Lisowski gave evidence that she thought she could only continue to care for him for two more years at most. She has arthritis. She gave evidence that she spends ten minutes each day helping him shower and get dried, 20 minutes for each meal, or one hour per day, and 45 minutes per day ironing and washing. In cross-examination she conceded the following matters. First, that even if she lived in the house by herself, without Mr Glover, she would still have to clean her whole house. Secondly, the only extra cleaning of the house that she does is sometimes when Mr Glover has a flare-up of pain and sleeps in the second bedroom. Thirdly, when Mr Glover has a simple breakfast or lunch, he makes it himself. Fourthly, she spends 20 minutes each evening making his evening meal. Fifthly, the time estimates given by her were to clean the whole house occupied by her and Mr Glover. 194 In his report dated 17 August 2009 Professor Ghabrial said this: "I believe that you [Mr Glover] require domestic assistance for two hours per day for cleaning, bed making, washing dishes, washing and hanging clothes and dealing with garden and yard activities." 195 Mr Glover gave evidence that he could do some cleaning, some bed making, some dishwashing and some washing and hanging out clothes. The defendant therefore contended that Professor Ghabrial's assessment was unduly generous, and an overstatement of Mr Glover's true needs. 196 The difficulty with any realistic assessment of claims such as the present, is that experts who proffer opinions are largely dependent upon reports of capacity provided by the claimant. In the case of treating doctors there is a not unusual and expected inclination to treat complaints and reports of the need for care and assistance at face value as genuine. Similarly, experts who are retained to assess the domestic and living conditions of a claimant are themselves reliant upon what they are told and make recommendations for care regimes that reflect the information that they receive. Even Dr Matheson for the defendant accepted Mr Glover as "a man of some disability", but said that it would not prevent him from doing some light reasonable work. Dr Matheson assessed Mr Glover's domestic needs as limited to help with heavy tasks. 197 In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1967-68) 122 CLR 649 at 662, Barwick CJ said this: "The matter is somewhat different in the case of disbursements which are decided to be reasonably necessary for the continued life and health of the respondent and which flow from the injury inflicted upon him. In connexion with these, it can properly be said that they must be regularly and continuously disbursed and that the respondent must have the ready cash to disburse them. Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent. The jury must be warned, in my opinion, against blindly accepting the views of the medical practitioners. What is reasonably required is a matter for the jury - or for the judge if sitting alone." 198 I have to assess Mr Glover's needs in the light of all of the evidence, including the evidence given by Mr Glover in the course of his cross-examination. I formed the distinct impression that Mr Glover's protestations of disability were exaggerated. I compared the evidence that he gave, of almost functional invalidity in the kitchen and the laundry, with his ability to conduct his own case in Court before me, where I observed him to stand for lengthy periods, moving and bending and dealing with heavy files and lever arch folders with little or no sign of restriction or discomfort. I am not legitimately able to substitute these observations for considered medical opinion and I do not propose to do so. However, it is well within my scope to compare the effort and the time that it takes to prepare a meal or to load dry clothes into a washing machine with the type of activities that I observed in Court. I have little doubt that Mr Glover's capacities, and his ability to attend to domestic and personal hygiene tasks in his home as part of his daily routine of living, were considerably understated by him in these proceedings. I feel in the circumstances inclined to reject as unpersuasive Mr Glover's answers to these questions given in cross-examination: "Q. Can I suggest this to you, that you are capable of doing a lot more around the house than you presently do. Do you agree or disagree? A. No, I disagree with you. Q. I suggest to you that you could make some contribution each day to the housework but that you chose not to. Do you agree or disagree? A. I disagree. Q. And I suggest to you that you are doing little or no housework because Miss Lisowski simply gets in and does it rather than waiting for you to do it. Is that right or wrong? A. That's not right. Q. If you were on your own if you weren't with Miss Lisowski you'd have to fend for yourself, wouldn't you? A. No, it's probably that if it wasn't for her I wouldn't be here I would most probably be in the UK most probably and members of my family would be doing it. Q. If you were on your own for any untoward reason you would have to fend for yourself? A. Yes, but I don't know how I would manage. Q. But you could manage all these domestic duties by yourself if you took your time and were careful about the way you did them? A. I don't think so. Q. Don't you think if on your own nowadays you could probably manage with a cleaner coming in 2 days a week to do all the heavy work? A. No. Q. You would need someone for several hours for every day of the week, would you? A. I think so. I would need someone to help me shower every day." 199 Ms Gracey, an occupational therapist retained by the defendant, in a report dated 8 March 2010, considered that Mr Glover's needs did not exceed the six-hour threshold in s 151K(4). Mr Maddock, an occupational therapist retained by Mr Glover, said this: "Q. In his home did you see any equipment of the kind that OT's prescribe? A. No I didn't. Q. But the home needs modification, doesn't it, particularly in the bathroom area? A. Not extensive, standard sort of modification, things like rails, safety in the shower and things like that. Q. But once he gets some of those modifications in the bathroom the rails and the shower stool and things like that he will be better to manage his own hygiene and showering for a start? A. In most circumstances as long as he doesn't have a severe exacerbation of his symptoms and needs someone to actually assist him in those things. ***** Q. Against the background of your understanding of his level of disability, [Ms Lisowski] reported to you what she's doing for him and you think that's a reasonable amount of time to spend and a reasonable prescription for the care that he needs, is that right? A. Yes. There was also account not necessarily what she's doing immediately but what she has been doing in the past as well." 200 In my opinion, much of the assistance Ms Lisowski provided to Mr Glover would have been provided by her even if he had not been injured. I acquired the very distinct impression during the course of the evidence about this that Mr Glover's enduring attitudes to domestic tasks were not originally formulated in a social atmosphere of gender equality, and that his current views about who should bear the burden of them were still similarly influenced. Mr Glover gave me the impression that he wanted to convince me that he was so disabled that he could do almost nothing for himself around the house, and that he was prepared to allow others to believe the same thing so that his needs were met. I am not satisfied, however, that his domestic restrictions are as great as he portrays them. 201 Doing the best I can, I consider that Mr Glover's needs for domestic assistance in the past have been no greater than an average of 14 hours per week made up of two hours for garden and home maintenance, two hours for shopping assistance, seven hours for domestic assistance and meal preparation and three hours for personal care. This assessment also takes account of those services and assistance that would have been provided even if Mr Glover had not been injured. The claim is made from March 2001 until the present time at the agreed rate of $19 per hour for gratuitous care. The first six hours are not recoverable. The sum to which Mr Glover is entitled under this head is therefore arrived at as follows: $19 x 8 hours x 9.5 years (494 weeks) = $75,088. 202 I award Mr Glover $75,088 for past domestic assistance. Future domestic assistance 203 In my opinion on the balance of probabilities Ms Lisowski will continue to provide gratuitous domestic care and assistance for Mr Glover into the future. This is so notwithstanding the arthritis from which she suffers and its apparently deteriorating progressive state. However, this problem has existed for approximately 10 years already and Ms Lisowski has been able to provide assistance to Mr Glover notwithstanding. She has been able to complete a TAFE course in aged care and perform 120 hours practical experience for that purpose. She is relatively young and the level of her disability is not particularly great. The nature of the tasks that she has performed, and will continue to perform, are also not particularly arduous or strenuous, and do not involve heavy work as normally understood. I consider that Ms Lisowski will continue to perform these tasks, so that the need for commercially provided care and domestic services is in my opinion unlikely to arise. 204 Mr Glover is now 65 years old. He will require some level of care as the result of the normal ageing process. The defendant contended that his normal life expectancy must be taken to be reduced as the result of his Chronic Obstructive Pulmonary Disease as discussed by Associate Professor McKenzie in his 18 June 2009 report. At the age of 65, Mr Glover has a medium life expectancy of 20.68 years. The seven-year reduction posited by Associate Professor McKenzie, which is not otherwise contradicted in evidence before me, reduces that period to approximately 14 years. The five per cent multiplier for 14 years is 523.9. The defendant submitted that that should be further reduced to 10 years having regard to the combined effect of all these considerations. However, I consider that a life expectancy of 14 years is the appropriate one to adopt. 205 The weekly rate is $19 by eight hours per week or $152. That produces a sum for future gratuitous domestic assistance of $152 multiplied by 523.9 giving $79,633. In arriving at that figure I have also taken into account as best I can the expectation that many of the services for which Mr Glover claims damages under this head would have been provided to him even if he had not been injured and so are excluded by the force of s 151K(3). I have also taken account of the evidence that Mr Glover has what he describes as "flare ups" from time to time, about four times a year, when his levels of disability, and the consequent need for care and domestic assistance, temporarily increase. Account must be taken of the "give and take of domestic arrangements": see Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249. 206 I award Mr Glover the sum of $79,633 for future domestic assistance. Past out-of-pocket expenses 207 It is unusual and regrettable that these amounts were not capable of either agreement or limitation. I am satisfied that the parties' respective legal representatives have commendably exhausted both their efforts and their influence in this regard. 208 Mr Glover's claim for out of pocket expenses is set out in a letter dated 30 April 2010, which became exhibit "AW". The claim for past expenses is as follows: (a) Past pharmaceutical expenses: $25,020 (b) Past medical consultations: $8,861.75 (c) Costs of attending defendant's medicals: $12,448.40 (d) Travel expenses in preparation for conduct of the proceedings: $18,441.76. 209 The claim for pharmaceuticals was based on printouts from two pharmacies between 21 April 2007 and 29 April 2010 and 1 June 2009 and 30 April 2010. The defendant did not dispute that the cost of prescriptions for Oxycontin, Panadeine Forte, Tramal, Brufen, Codeine and Paracetamol were compensable. All other medicine dispensed was for unrelated conditions such as blood pressure or gout. The defendant was prepared to allow $20 per month for the claimed period or $3,850. There was no other evidence on this part of the claim. 210 The defendant accepts that it is liable to pay $7,915.50 for this part of the claim. The difference is accounted for by the exchange rate applied to sums in pounds sterling. I consider that $8,000.00 is a proper sum to allow. 211 There is no evidence to support a claim for travelling expenses to the defendant's medicals, assuming such a claim were otherwise viable. It should be rejected. Similarly, travelling expenses would fall to be considered as a cost in the proceedings and assessed as such. I reject that claim. 212 I am not, therefore, in a position to assess Mr Glover's claim for past out-of-pocket expenses beyond a total allowance in his favour of $11,850. There is no evidence that would permit me to conclude otherwise. Future out of pocket and medical expenses 213 Any award under this head must be limited by reference to Mr Glover's life expectancy of 14 years. The defendant disputes the claim for future surgery. 214 In his 29 October 2009 report Dr Ghabrial said this: "I discussed with [Mr Glover] the pros and cons of surgery in the form of disc excision and spinal fusion including instrumentation however we both agreed to leave things alone as there is no guarantee that will clear his symptoms". 215 The defendant accepts that the amount of $44,000 allocated to the cost of such surgery is otherwise reasonable. 216 The medical opinion discussed earlier was to the effect that Mr Glover should eventually come to further surgery in the form of decompression and a multilevel spinal fusion but the chances of success were not rated at anything better than 50:50. I have not had the benefit of adamant or convincing evidence from Mr Glover that he intends to submit to such surgery and in the light of the fact that Dr Ghabrial has not endorsed it as a likely source of improvement, I do not consider that Mr Glover is ever likely to have it performed. 217 I am prepared to allow pharmaceutical expenses in to the future at the rate of $20 per week, which equates to a discounted sum over 14 years of near enough to $2,500. I also allow one general practitioner visit per month, based on historical trends, at the rate of $55 per visit over the same period. This produces a calculation of $12.69 per week multiplied by 529.3 giving a total sum of approximately $2,500. There is a claim for psychiatric counselling but the evidence does not support such a claim. 218 Mr Glover also claims for aids and equipment and home modifications. This claim amounts to approximately $20,000. The details of these claims have been provided to the defendant. Having regard to the fact that the defendant has received the benefit of my conclusion that Mr Glover will not undergo a further operation, it does not seem to be unreasonable that it should bear the burden of the cost of aids and equipment designed to ameliorate Mr Glover's ongoing condition. There is little detailed evidence concerning these items although the occupational therapeutic opinion seems to provide a sufficient basis for my conclusions. I allow $20,000 under this part of the claim. 219 I am not prepared to allow any of the claimed sum of $20,570 for car washing. Even notorious motoring enthusiasts can live with a far less rigorous regime than weekly car washes at $30 per wash. The claim should in any event be subsumed in the allowance for garden and home maintenance or is otherwise de minimus and can be wholly disregarded. Costs and interest 220 Senior counsel for the defendant has indicated that the question of costs should be deferred until each of the parties has had an opportunity to consider these reasons. That is particularly so in light of the fact that the Court of Appeal has delegated the task of who should pay the costs of the first trial to me, and I have not yet received any submissions concerning that question. I will consider the parties' submissions on any question of Mr Glover's entitlement to, and the calculation of, interest on any aspect of the damages that I have awarded that may arise at that time as well. Orders 221 I shall do no more at this stage than to list the matter before me for further submissions on costs and interest, and any arithmetical matters that are thought to arise, at a time within the next fortnight suitable to the Court and to the parties, to be arranged in consultation with my Associate. My formal order in the circumstances will therefore be limited to the following: 1. I direct the parties within 14 days to bring in short minutes of order to give effect to my findings and conclusions. ********** 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.