Court of Appeal Supreme Court New South Wales Medium Neutral Citation: P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 Hearing dates: 18 February 2013 Decision date: 12 June 2013 Before: Barrett JA (at [1]); Hoeben JA (at [103]); Tobias AJA (at [106]) Decision: 1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal: "The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question." 2. Appeal allowed. 3. Set aside the judgment and orders of the District Court. 4. In lieu thereof, order that the District Court proceedings be dismissed with costs. 5. That the respondent pay the appellants' costs of the appeal. 6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - workplace injury - plaintiff injured by trolley pushed by co-worker - identification of co-worker's employer - that employer was not the defendants - no vicarious liability of the defendants for negligence of the co-worker - workplace and systems controlled by the defendants - whether duty of care owed by them accordingly - whether duty breached - whether duty of care also owed by plaintiff's employer which had no control of workplace and systems - whether defendants entitled to contribution from plaintiff's employer - damages for non-economic loss - whether injury shown to meet threshold of 15 per cent of most extreme case - damages for economic loss - where causes of disability other than the workplace injury operated - whether relevant causation proved - observations on the need for evidence from treating doctors in cases of this kind Legislation Cited: Civil Liability Act 2002, ss 5B, 5D, 5E, 5Q, 15(3), 16 Workers Compensation Act 1987, s 151Z(2) Cases Cited: Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 Leighton Contractors v Fox [2009] HCA 35; (2009) 240 CLR 1 Morvatjou v Moradkhani [2013] NSWCA 157 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Stevens v Brodribb Sawmilling [1986] HCA 1; (1986) 160 CLR 15 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Category: Principal judgment Parties: P & M Quality Smallgoods Pty Limited - First Appellant Trustees of the Homebush Unit Trust - Second Appellant Leap Seng - Respondent Representation: M B Williams SC/T A Berbarian - Appellants P Menzies QC/K W Andrews - Respondent HWL Ebsworth Lawyers - Appellants NSW Compensation Lawyers - Respondent File Number(s): 2009/336435 Decision under appeal Citation: Seng v P & M Quality Smallgoods Pty Ltd & Anor [2011] NSWDC 175 Date of Decision: 2011-11-18 00:00:00 Before: Levy SC DCJ File Number(s): 2009/336435 Judgment 1BARRETT JA: At the time relevant to the events the subject of this appeal, Leap Seng ("the plaintiff"), a woman then aged 47, worked as a process worker in a smallgoods factory at Chullora. 2The plaintiff gave evidence that, on 1 August 2006, she was injured in a part of the factory she called the "hamlet room" when she was struck from behind by a heavy trolley some two metres high laden with thick frankfurt sausages which was being moved by Ms Lidija Andjelov, another worker at the site. The plaintiff was standing still, waiting for other trolley traffic to clear so that she could continue her task of wheeling a pallet jack and storage bin from the "hamlet room" to her place of work in the peeling room where she operated a frankfurt peeling machine, usually in company with one other person. She heard someone call "trolley", whereupon a trolley pushed by Ms Andjelov struck her in the back. The impact forced the plaintiff forward so that her chest was pushed hard against the pallet jack in front of her. 3The plaintiff sued two defendants in the District Court for damages for breach of duty of care in negligence. The first defendant was P & M Quality Smallgoods Pty Ltd (referred to as "Primo"). The second defendant was described in the statement of claim as "Homebush Unit Trust". 4After a four-day trial in April and July 2011 (and subsequent written submissions), his Honour Judge Levy ordered verdict and judgment for the plaintiff against both defendants in the sum of $470,536. 5A notice of appeal was filed on 8 December 2011 by Primo (that is, P & M Quality Smallgoods Pty Ltd) and "Trustees of the Homebush Unit Trust". An amended notice of appeal was filed on 20 December 2011. 6Naming of "Homebush Unit Trust" or "Trustees of the Homebush Unit Trust" as a party was irregular - and the allegation in the statement of claim that "Homebush Unit Trust" was "a corporation and/or business name ... liable to sue and/or be sued in and by its name and style" was a nonsense. However, since no issue is taken about this and the other parties are presumably aware of the person or persons concerned (who appeared below and on appeal), no more need be said about the matter. Much as it goes against the grain, I shall, as the primary judge did, refer to the second defendant below (now second appellant) as "the Trust". 7Upon appeal, Primo and the Trust challenge the finding of negligence and maintain that they have no liability to the plaintiff. There are, subject to that, other grounds of appeal, including as to causation and the assessment of damages. The decision on liability 8The primary judge found that Primo was the occupier of the premises where the plaintiff was injured; and that the Trust "employed all senior managers and supervisors at the site". Neither Primo nor the Trust was the plaintiff's employer. She was, the judge found, employed by Kaybron No 24 Pty Ltd ("Kaybron 24"), one of 45 companies that made up what the judge called "the Kaybron group of companies". Kaybron 24 was said to be "a labour hire company that deployed the plaintiff's labour to Primo's premises". 9The issues on liability were whether either of Primo and the Trust owed a duty of care to the plaintiff and, if so, what the scope of the duty was and whether the duty was breached. 10The judge found that each of Primo and the Trust owed and breached a duty of care. Primo, as the controller of the premises and the party to whom the employer made the plaintiff's services available, was held to owe the plaintiff a duty of care analogous to that owed by an employer as to a safe system of work: TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. Primo was also said to owe, by virtue of its position as the occupier of the premises, "a duty of care to ensure that reasonable care would be exercised concerning the arrangement and management of the premises so as to ensure that persons lawfully on the premises, such as the plaintiff, would be kept safe from foreseeable sources of harm" (at [45]). 11The judge found that Primo was the employer of Ms Andjelov, the person who had been moving the trolley that struck the plaintiff. Hence, it was said (at [52]), "any liability of Primo in connection with its systems of operations would necessarily include a vicarious liability for its employee, Mrs Andjelov, for any action that she undertook in the course of her employment". 12The finding (at [42]) in relation to the Trust was that it, along with Primo, "exercised the ultimate control of the premises as to the sequencing and system of work within the premises". That was apparently seen as sufficient to cause the Trust to owe a duty of care to the plaintiff. 13As to the scope of the relevant duty of care, the judge accepted a submission that he described as follows (at [53]): "The plaintiff's formulation of the negligence of the defendants was principally concerned with allegations of failure to devise and implement a system of work to ensure that the plaintiff would not be exposed to injury due to the movement of trolleys within the premises." 14That formulation, it may be noted, referred to "the defendants" in the plural. 15His Honour also said at [56] (again referring to both defendants): "The manner in which the negligence argument proceeded against the defendants was that the premises were inadequately laid out for the operations being conducted there. In that regard, there was busy trolley and pedestrian traffic within the premises as part of the day-to-day operations of the factory. Those circumstances made a collision foreseeable, if reasonable care was not taken to address and avoid that risk by providing separately designated areas for the safe use and movement of trolleys and pedestrian workers within the premises." 16That submission was accepted. 17The judge went on to hold that there had been a breach of duty on the part of Primo because it had not countered the risk of injury to persons working on the premises by providing "designated or marked areas for the movement of trolleys and pedestrians separately within the premises" and because it had not provided trolleys that could be pulled instead of pushed and which allowed a person moving a trolley to see the way ahead. 18The judgment did not separately analyse the position of the Trust in this respect. The judge seems to have proceeded on the basis that the position of the Trust was the same as that of Primo. 19In relation to the Civil Liability Act 2002, the judge recorded, stating brief reasons, findings that "the prerequisites for a finding of negligence have been satisfied" (s 5B), that the risk of being struck by a trolley was foreseeable (s 5B(1)(a)), that the risk was not insignificant (s 5B(1)(b)), that a reasonable person would have arranged the work system differently in order to take precautions (s 5B(1)(c)), that there was a high probability of harm from a collision in the absence of such precautions (s 5B(2)(a)), that the harm was foreseeably serious (s 5B(2)(b)) and that the burden of taking the precautions was not great (s 5B(2)(c)). 20His Honour also found that causation had been established in accordance with ss 5D and 5E of the Act; also that s 5Q did not apply as it was only the plaintiff's employer, Kaybron 24, that was subject to a duty of the kind dealt with by that section. 21In the result, therefore, both Primo and the Trust were found guilty of negligence towards the plaintiff. Grounds of appeal - liability 22Primo and the Trust challenge the conclusion that they are liable in negligence to the plaintiff. They do so on grounds that may be summarised as follows: 1. The judge erred in finding that Ms Andjelov was an employee of Primo and that Primo was accordingly vicariously liable for the consequences of her actions. The judge should have found that Ms Andjelov was employed by Kaybron 24. 2. The judge erred in attributing a duty of care of the kind exemplified by TNT Australia Pty Ltd v Christie (above). The finding that should have been made, by reference to Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 and Stevens v Brodribb Sawmilling [1986] HCA 1; (1986) 160 CLR 16, is that Primo and the Trust owed no duty to provide a safe system of work for the performance of allocated tasks of employees of Kaybron 24, including the plaintiff. 3. The judge erred in finding negligence because (a) there was no evidence of any reasonably practicable precaution available to Primo and the Trust to obviate the risk that materialised in this case; (b) there was no evidence that a reasonable person in the position of Primo and the Trust would have provided marked traffic lanes for trolleys and pedestrians respectively within the factory; (c) since both the plaintiff and Ms Andjelov were pushing trolleys at the relevant time, there is no evidence that such a system of separation by marked lanes would have obviated the risk; and (d) there was no evidence that lack of such separation caused the plaintiff's injury within the meaning of s 5D of the Civil Liability Act. 4. The judge erred in admitting an expert report and failed to engage with and evaluate certain aspects of the evidence and arguments advanced by Primo and the Trust. 5. The judge erred in failing to reduce the plaintiff's damages in accordance with s 151Z(2) of the Workers Compensation Act 1987 in that he failed to find that Ms Andjelov was employed by Kaybron 24, that that company was vicariously liable for her casual act of negligence and had an obligation to institute and maintain a safe system of work. Ms Andjelov's employer 23I deal first with the identity of Ms Andjelov's employer. On that, the first point to be made is that Ms Andjelov's own understanding as to which entity employed her is by no means determinative. Beyond that, it is of particular relevance to note the evidence of Mr Ujvary, the finance director of the Primo group. He made it clear that some forty Kaybron companies had been formed in order to reduce the quantum of the group's workers compensation insurance premiums. He also made it clear that Kaybron 24 paid Ms Andjelov's wages. This is borne out by her wages slip for the week in question and her taxation group certificate for the relevant tax year, both of which were issued by Kaybron 24. Furthermore, Primo and the Trust expressly accepted, in response to interrogatories, that Ms Andjelov was employed by Kaybron 24 at the date of the accident. They did not seek to say that the plaintiff and Ms Andjelov had different employers. 24It is true that certain documents in evidence may be taken to imply that Ms Andjelov was employed by Primo, that is, P & M Quality Smallgoods Pty Ltd. A "conditions of employment" document signed by Ms Andjelov referred to the employer as "P & M Quality Smallgoods". This might have been a reference to P & M Quality Smallgoods Pty Ltd. However, the document is dated 3 May 1998. There are several instructions for direct deposit of wages into Ms Andjelov's bank account. Each form carries the name of P & M Quality Smallgoods Pty Ltd at the top, followed by the words "trading as Primo Smallgoods". In the body of the form, which conveys the employee's instruction, however, the references are to "my EMPLOYER", without identification. Also in evidence are certain "warning letters" addressed to Ms Andjelov in respect of supposed infractions of workplace rules. These were sent by P & M Quality Smallgoods Pty Ltd. 25Primo (P & M Quality Smallgoods Pty Ltd) controlled the workplace at the relevant time. The documents referred to in the immediately preceding paragraph are explicable on that basis. They do not, to my mind, serve to displace the conclusion indicated by the wages and group certificate documents and, crucially, the reply to interrogatories. 26Ms Andjelov was employed by Kaybron 24 as at 1 August 2006 and the finding of the judge that she was then employed by Primo was, in my respectful opinion, in error. It follows that Primo did not incur vicarious liability, as Ms Andjelov's employer, for any negligence of Ms Andjelov in and about the movement of the trolley that struck the plaintiff. 27It does not avail the plaintiff to call upon principles of agency in seeking to show that Primo and the Trust were responsible for defaults of Ms Andjelov. There is no evidence of any relevant relationship of principal and agent. Duty of care 28The next question for consideration is as to any duty of care owed by Primo and the Trust. As I have said, Primo and the Trust say that the judge erred in attributing a duty of care of the kind exemplified by TNT Australia Pty Ltd v Christie (above) and that the true position was that Primo and the Trust owed no duty to provide a safe system of work for the performance of allocated tasks of employees of Kaybron 24, including the plaintiff. 29That submission cannot be accepted. It was clearly open to the judge to find (as he did) that, while Kaybron 24, as the plaintiff's employer, had a non-delegable duty to ensure that reasonable care would be exercised to ensure that a safe system of work was provided for the plaintiff and she would be protected from reasonably foreseeable risks of harm, it was Primo and the Trust that were responsible for the premises, provided the equipment, created and administered the work systems, sequenced tasks, provided supervisors and exercised ultimate control over the meat processing and other activities within the premises, including control and discipline of persons working there. 30In the light of those findings, the judge was correct to conclude that the situation of the plaintiff was relevantly the same as that of the worker described thus by Mason P in TNT Australia Pty Ltd v Christie (above) at [12]: "But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT's relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked." 31Primo and the Trust were much more than the occupiers of the premises and their responsibilities extended beyond those of a principal vis-à-vis an independent contractor. They owed to the plaintiff either a duty corresponding with that of an employer or a duty very similar to an employer's duty. The evidence of the ergonomic expert 32Before considering issues of breach of duty, I deal with the ground of appeal concerning an expert's report. 33Among the questions relevant to breach is the question whether Primo and the Trust should have had in force within the factory premises a system of demarked areas for trolleys and pedestrians. The plaintiff relied, in that respect, on a report prepared by Ms Sharon Todd, an ergonomic consultant. The report was admitted over the objection of Primo and the Trust. They say that the judge was in error in that respect, since the report offends the "basis rule" - particularly when it is remembered that Ms Todd had not inspected the premises. 34It is not necessary, in this case, to dwell on the status of the "basis rule" following the decision of the High Court in Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588: see the recent discussion by the Court of Criminal Appeal in Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114. This is because some of the conclusions of Ms Todd on matters lying within her field of expertise are generally based on assumptions borne out by oral evidence of the plaintiff so as to have a basis beyond unsubstantiated assumption or mere conjecture. The relevant evidence of the plaintiff about moving the storage bin on the pallet jack and having been struck by the trolley from behind has already been mentioned. In addition, there was no evidence of any system of controlling or regulating the movement of trolleys when in the vicinity of pedestrians, beyond a practice by which the person controlling a moving trolley shouted "trolley" from time to time. The plaintiff heard Ms Andjelov call "trolley" just before she was struck. 35There was sufficient correspondence between assumptions stated by Ms Todd and evidence at the trial to justify admission of the report into evidence. While not all the assumptions were borne out by the evidence, I am satisfied that the attention the judge gave to Ms Todd's report and the weight he afforded it were appropriate. That said, the relevant finding by Ms Todd was of an unsurprising common sense kind: that if there are tall laden trolleys and pedestrians moving in a single area, some system of demarcation or traffic control is required. Whether that should be by way of lines marked on the floor or something else is a matter of detail. The plaintiff's evidence 36Primo and the Trust sought to impugn the plaintiff's credibility at trial. They maintain on appeal that the judge wrongly regarded the plaintiff as a witness of truth. 37In dealing with the issue of credit, the judge noted that the plaintiff gave her evidence through a Khmer interpreter. She apparently speaks some English but the judge accepted that she needed an interpreter for the giving of evidence which is "a matter of some solemnity". The plaintiff testified that she could not read English and her son gave evidence of having translated for her a written statement that she ultimately signed. 38Primo and the Trust rely on what they regard as the plaintiff's rejection of her prior written statement. In the witness box, when questioned through the interpreter, she did decline to acknowledge the accuracy of the written statement. But that was because she could not read it. She acknowledged the presence of her signature on the document she was shown and that her son had read and translated a document that she had then signed. But she was unable to say that the document shown to her was the document her son had read and translated and she had then signed. That is perfectly understandable and bespeaks, in my view, inability to recognise rather than intention to reject or disown. 39Primo and the Trust say that the plaintiff had no need to push trolleys and that trolleys were brought to the machine she operated. That, it is said, undermines her account of having had to bring trolleys to her machine. However, the oral evidence of the plaintiff was that it was a storage bin that she had to transport to her machine. 40The plaintiff said that she was working on the machine alone on the day in question and that "Albert", who usually worked with her on the machine, was on holidays. She specifically denied that she was working with "Hi" on the day in question. Primo and the Trust point to a reference to "Hi" in the accident report and to wages records showing that "Albert" had returned from holidays the previous week. Primo and the Trust did not, however, seek to lead evidence from either "Albert" or "Hi". And on the plaintiff's account, of course, she was not at the machine when the collision occurred but fetching a storage bin. In that immediate sense, she was working alone. 41Primo and the Trust say that the plaintiff gave evidence about working overtime after the incident that calls in question her credibility. She said that she did not do any overtime after the incident and that it was because she was asked to do overtime that she decided to resign. Then, when shown records of overtime payments in two relevant pay periods, she said that she could not remember working overtime on those occasions. Those answers were accompanied by statements that she did not feel up to overtime and told her employer that she did not wish to work overtime. The judge obviously had no difficulty in accepting that, if she had worked any overtime, it was unwillingly and she had forgotten it. There is no reason why that assessment should not be accepted. 42There were also credibility challenges based on various aspects of the plaintiff's description of work practices. These may be accepted as reflective of language difficulties. I say this because a perusal of the plaintiff's oral evidence as a whole discloses several areas in which there was uncertainty about the import of the translated answers attributed to the plaintiff. 43On the basis of the foregoing, as well as matters about to be discussed in relation to the episode itself, I am of the opinion that it was open to the judge to accept the plaintiff's evidence as reliable and that his Honour did not err by doing so. Breach of duty 44I turn now to the grounds of appeal going to breach of the duty of Primo and the Trust to provide a safe system of work and the questions whether there was evidence of any reasonably practicable precaution available to them to obviate the risk to which the plaintiff succumbed and, in particular, whether there was evidence that a reasonable person in their position would have provided marked traffic lanes for trolleys and pedestrians respectively within the factory. 45Central to the judge's finding of breach of duty were four matters: that persons pushing trolleys of the relevant kind had no proper view ahead; that the plaintiff was required to venture into areas of the premises that were regularly traversed by trolleys; that there was busy trolley and pedestrian traffic in the relevant part of the premises; and that Ms Andjelov was pushing the trolley from behind. 46As to the first of these matters, it is shown by the evidence that a trolley is about two metres in height and that there is limited vision between its shelves, particularly when they are packed with meat rolls about 105 millimetres in diameter. There was also evidence that a trolley, during any given movement, is either empty or fully packed. The trolley in question was packed. 47Primo and the Trust say that several aspects of the evidence combine to make untenable factual findings of the judge relevant to the other matters and to the broader proposition that the plaintiff was struck by a trolley pushed by Ms Andjelov. 48They point first to the evidence of Mr Agha, the despatch and packaging manager. He said that women never moved trolleys and that trolleys were meant to be pulled, not pushed. However, Ms Andjelov, while unable to recall an occasion on which the plaintiff was struck by a trolley moved by her and while maintaining that trolleys were to be moved by men, accepted both that she had sometimes moved trolleys and that, while she usually pulled rather than pushing: "On occasion, like I did have to push a trolley." 49The plaintiff gave evidence that she too had pushed trolleys. There was thus clear evidence that, whatever the policy may have been, women did from time to time push trolleys 50The plaintiff, as I have said, referred to the incident's having happened in the "hamlet room". She said she had gone there to collect a storage bin on the pallet jack and that she was struck in the "hamlet room" by a trolley bringing meat out of the cool room. Mr Agha's evidence was that someone working in the plaintiff's job had no occasion to collect anything from another part of the factory as bins were taken to and from the machine operated by the plaintiff, as required; and this was done by male service personnel quite distinct from the machine operator. 51However, Mr Agha could not identify the area referred to by the plaintiff as the "hamlet room"; and his evidence was confined to general procedures and practices without specific reference to actual events on the day in question. While it may in theory have been the case that, as Mr Agha said, someone doing the plaintiff's job had no occasion to leave the machine, the plaintiff herself gave evidence that she would be criticised if ever found idle at her machine and that, if a bin was not brought to her in a timely way, she felt herself obliged to fetch one. The fact that she knew where a bin could be obtained and how it could be transported on the pallet jack suggests that she was well versed in transporting bins that the system should have made it unnecessary for her to seek out. 52I am of the opinion that Mr Agha's evidence of the system and the intended operation of the factory was not sufficient to counter the plaintiff's specific evidence of what actually happened in the manufacturing operations, including on the day in question; and that Ms Andjelov, although she did not recall the particular incident, lent support to the plaintiff's account (and undermined Mr Agha's description of intended operation) by confirming that women sometimes pushed trolleys. There was a demonstrated difference between the mode of operation intended by Primo and the Trust and the way in which things actually happened on the factory floor. 53The question whether Primo and the Trust should have had in force a system of demarked areas for trolleys and pedestrians is of subsidiary importance. The plaintiff relied, in that respect, on Ms Todd's report and, for reasons I have stated, I am of the opinion that the judge paid appropriate attention to that report and afforded it appropriate weight. The point it underlined was that some sensible system of warning of the movements of trolleys was required but absent. 54The judge was, in my opinion, correct in deciding that the risk of harm to factory workers by being struck by moving trolleys was foreseeable (in the sense of being a risk of which Primo and the Trust knew or ought to have known) and that the risk was not insignificant. Furthermore, the circumstances of movement of persons and trolleys, as they emerged from the evidence, indicated that a reasonable person in the position of Primo and the Trust would have taken precautions against the risk over and above an ad hoc and apparently informal practice of calling "trolley" from time to time. It may be that a system of marked areas for trolleys and pedestrians would have been difficult to implement in precisely the way Ms Todd envisaged. If that were so, some variant might have been more feasible within the confines of available space. There was also an obvious possibility of using lower trolleys over which persons pushing could see. The likelihood of potentially serious harm remained while some sensible system beyond mere haphazard shouting to warn of the approach of tall trolleys was not in place. 55In the result, therefore, the challenges to the judge's findings on the negligence of Primo and the Trust do not succeed. Liability of Kaybron 24 56The judge found that there was no justification in the evidence for finding that Kaybron 24 breached the duty of care it owed to the plaintiff as her employer 57The basis for this finding was the inability of Kaybron 24 to devise, implement or control the system of work or to require that Primo and the Trust arrange work practices in any particular way. However, Ms Andjelov - who, the judge found, occupied a supervisory position in relation to the plaintiff - was, as I have found, an employee of Kaybron 24. 58Kaybron 24's inability to devise, implement or control the system of work or to require any particular arrangement of work practices does not lead to the conclusion his Honour reached. It is sufficient to refer, in that respect, to observations of Giles JA (with whom Handley and Stein JJA agreed) in Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214. Speaking of an employer's "non-delegable duty of care", Giles JA said (at [75]): "The language can mislead. In both situations the duty of care is owed by the first person, and the duty of care is not delegated. The performance can be and is delegated. The effect of a non-delegable duty of care is that the person owing the duty of care is under a more stringent duty of care, a duty of care which cannot be fulfilled by exercising reasonable care in entrusting performance to a competent third party. The duty of care requires that the person ensure that the third party exercises reasonable care, in the sense that the person is liable if the third party does not exercise reasonable care." 59The duty of Kaybron 24, as the plaintiff's employer, was thus not attenuated or abolished by the circumstance that Kaybron 24 caused the plaintiff to work in a situation wholly arranged and controlled by others, even though those others may have been competent. 60The continuing existence and non-delegable quality of the duty of Kaybron 24 mean that Kaybron 24 is liable for any breach, regardless of who it was that was retained or allowed by Kaybron to perform the duty. This proposition is given statutory force by s 5Q of the Civil Liability Act. 61It follows that the primary judge erred in rejecting the proposition that a reduction in the plaintiff's damages against Primo and the Trust was required by s 151Z(2) of the Workers Compensation Act 1987. The operation of that section was attracted. 62The primary judge went on, however, to deal with the quantum of reduction, should the true position be that s 151Z(2) required reduction. He concluded that an apportionment fixing Kaybron 24 with 10 per cent of the liability would have been appropriate. Primo and the Trust sought leave, upon the hearing of the appeal, to add a further ground of appeal, as follows: "The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question." 63The principles regarding apportionment need not be considered in any detail. As the High Court pointed out in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, the necessary apportionment of responsibility for a plaintiff's damage involves a comparison of culpability (the degree of departure from the standard of care of the reasonable man) and of the relative importance of the acts of the parties in causing the damage, with the whole of the conduct of each negligent party in relation to the circumstances subjected to comparative examination. A trial judge's assessment of degrees of culpability involves a clear and broad discretion and will not be altered on appeal unless the discretion has obviously miscarried. 64In the present case, where Kaybron 24 had no ability at all to control or influence relevant activities or the way in which they were performed, the primary judge was, in my opinion, correct to regard its degree of culpability as very low. His Honour regarded the appropriate range as 5 per cent to 15 per cent and chose 10 per cent as the appropriate level of contribution. That discretionary decision demonstrates no error. 65The responsibility of Primo and the Trust for any damages awarded should be reduced by that factor. Damages - non-economic loss 66The primary judge assessed damages for non-economic loss at $171,500 based on 33 per cent of a most extreme case. Primo and the Trust say that this was outside the bounds of a sound discretionary judgment, bearing in mind the apparently trivial nature of the plaintiff's injury as recorded at the time. They also submit that the conditions from which the plaintiff was found to suffer in the period after the accident were not attributable to the workplace accident and that the judge had failed to take proper account of unrelated causes of impairment. 67In support of the contention that the injury was, at the time, recorded as trivial, Primo and the Trust refer to the accident report form completed at the time which referred to "bruising". The plaintiff was absent from work for only two days and was then pronounced by her general practitioner, Dr Ly, to be fit for work, although on light duties in the first instance. The plaintiff continued to work full time after her return and did not make a workers' compensation claim. The plaintiff had a chest x-ray on 17 August 2006 (sixteen days after the accident). It was normal. 68The plaintiff next sought medical attention on 4 October 2006, more than two months after the accident. At that point, she had an X-ray of her ankle and foot. More than four months later, on 22 February 2007, the plaintiff was referred by Dr Ly to Dr Rosario who considered the symptoms to be suggestive of tendon sheath inflammation. Dr Rosario recommended rest, anti-inflammatories and ultrasound. An ultrasound of the ankle was performed on 27 March 2007 and MRI of the ankle and knee were carried out in July 2007. Injury to both was confirmed. Dr Rosario was of the opinion, however, that the plaintiff should be able to continue working as long as she avoided kneeling, squatting and climbing. In December 2007 and January 2008, the plaintiff attended physiotherapy for her knees and ankles. 69In February 2008 - some eighteen months after the accident - the plaintiff sought medical treatment for her back and underwent an MRI on a referral from Dr Rosario. This disclosed a degenerative disc disease and Tarlov cysts in the sacral spine. In about July 2008, the plaintiff was referred by Dr Ly to Liverpool Hospital for pain management. The outcome is not made clear by the evidence. A bone scan on 3 August 2009 showed mild arthritis of the spine, shoulders and hip joints. In October 2009, an MRI revealed posterior disc bulging in the spine. 70The foregoing appear to be the only occasions of investigation and treatment outside appointments arranged for specifically medico-legal purposes. The judge referred in detail to the various investigations undertaken by medical practitioners retained for the purposes of the proceedings. These were Dr Stephenson a consultant orthopaedic surgeon, Dr Matalani a consultant occupational physician, Ms Grinter a consultant occupational therapist and Dr Smith a consultant orthopaedic surgeon. 71The primary judge expressed surprise that there was no comprehensive report from Dr Rosario, given the relatively long period over which the plaintiff had obtained treatment from that practitioner. It may also be noted that none of the other practitioners who had actually seen and treated the plaintiff in the period after the accident was called as a witness. The judge had before him only correspondence and contemporary records involving those practitioners. 72The primary judge identified a conflict in the medical evidence concerning the nature and extent of the plaintiff's injuries from the accident and noted that he was called upon to determine the conflict without oral evidence from the several medical practitioners. He set about doing so by reference to the documentary evidence before him. 73The conflict was seen as one between Dr Smith on one side and Dr Ly, Dr Stephenson and Dr Matalani on the other. Dr Smith, who saw the plaintiff in May 2010, was of the opinion that there was no real evidence of significant trauma or of the claimed injuries to back, knees, ankles, neck and shoulders. Dr Ly issued certificates from time to time supporting the conclusion that the plaintiff suffered a crushing injury to her back and chest when struck by the trolley. Dr Stephenson was of the opinion that the plaintiff had injured her spine in the accident, while Dr Matalani accepted that the accident had caused soft tissue injuries involving the neck and back producing left shoulder symptoms related to the neck injury and leg weakness related to the back condition. The judge regarded the evidence of Dr Rosario as not contributory to a resolution of the controversy he had identified. 74The judge expressed a preference for the evidence of Dr Ly, Dr Stephenson and Dr Matalani over that of Dr Smith. He gave six reasons for doing so. First, Dr Smith had apparently approached the assessment without giving much weight to the plaintiff's own account of the accident. Second, Dr Smith, unlike the others, had not had the advantage of re-examining the plaintiff over time. Third, to the extent that Dr Smith proceeded on the basis that the plaintiff was manufacturing symptoms, he was relying on something not put to the plaintiff. Fourth, Dr Smith resorted to an "unexplained subjective expression of opinion" ("no significant post-traumatic lesion"). Fifth, Dr Smith appeared to discount entirely the historical evidence of the plaintiff. Sixth, Dr Smith did not see the contemporaneous injury report. 75It is instructive to refer to that report. It shows quite clearly that the area of injury was in the upper left chest below the collarbone and correspondingly on an area of the back slightly below the shoulder. The moving trolley came into contact with the plaintiff's back and caused her chest to be "squashed" against the pallet jack handle in front. Areas affected are listed as "chest", "shoulder" and "back". 76Having resolved the conflict in the evidence in the way I have described, the judge concluded that injuries to the chest, back, neck and spine were the product of the accident, but that knee and ankle injuries were not. 77Primo and the Trust complain, with justification, that the conclusions based on medico-legal reports by specialists specially retained a considerable time after the event should have been treated with much greater caution, particularly since their foundation was, in large measure, statements made by the plaintiff to the examining doctors. There was a stark paucity of evidence from doctors who had seen the plaintiff in the period immediately after the event or at later times for the purposes of treatment as distinct from medico-legal assessment. 78The contemporaneous evidence goes to examinations and treatment by Dr Ly and Dr Rosario, neither of whom gave oral evidence. Dr Ly's assessment immediately after the accident was that the plaintiff was fit to go back to work after two days - as she indeed did. Dr Ly ordered a chest x-ray, something commensurate with the area of impact. As I have said, it was normal. And significantly, Dr Ly completed WorkCover medical certificates on 9, 10, 19 and 28 August 2006 in which he recorded a diagnosis expressed variously as "Soft tissue injury", "Soft tissue chest and back pain" and "Back and chest pain". Each certificate stated that the plaintiff was fit for suitable duties, but with qualifications in the first three (but not the fourth) about heavy lifting and the like. 79Thereafter in October 2006 and February 2007, Dr Ly ordered an x-ray of the ankle and foot and referred the plaintiff to Dr Rosario for "Chronic right ankle pain, burning sensation on prolonged standing". Given the nature of the accident, problems with the ankle and foot could not have been consequences; and the judge so found. The March 2007 ultrasound related to the ankle and knee, as did the July 2007 MRI and the physiotherapy of December 2007 and January 2008. 80It was not until February 2008, some eighteen months after the accident, that the plaintiff sought medical assistance in relation to her back. It was the MRI carried out at that time that revealed degenerative disc disease. The bone scan of August 2009 disclosed mild arthritis in the spine, shoulders and hip joints. Dr Matalani made a report dated November 2009 in which he expressed the opinion that the plaintiff suffered a soft tissue and chronic musculoligamentous strain of the neck and back representing zero whole person impairment in relation to the neck and 7 per cent in relation to the back. 81Primo and the Trust submit that the judge failed to give sufficient weight to the contemporaneous evidence and that, had he done so, the finding would have been that the only injury to areas that could have been affected by the impact on the upper chest and upper back (that is, injury to the chest, back and neck) manifested itself a year and a half after the event and was, in any event, of a degenerative nature consistent with gradual onset, so that the plaintiff did not establish necessary causation. 82That submission should be accepted. In the absence of contemporaneous evidence from treating doctors indicating a link between the ultimate chest and shoulder problems and the workplace accident (and with the tests of February 2008 and October 2009 disclosing conditions not limited by any medical evidence to the accident), there was, at best, an insubstantial and tenuous theoretical basis for the necessary finding of causation. That basis was, in my opinion, insufficient to discharge the burden that lay upon the plaintiff to show that the injuries she claimed to have suffered through the accident in fact had their source in that event. 83There can be no doubt that the plaintiff did sustain some pain and suffering as a result of the accident. But on the evidence before the judge, it came from soft tissue injury and was minor, necessitating only two days absence from work and restriction to light duties for a short time after return to work. In those circumstances, the extent of the pain and suffering attributable to the workplace accident must be accepted as below the level of 15 per cent of a most extreme case made relevant by s 16 of the Civil Liability Act. It may readily be accepted that Dr Matalani's assessment of 7 per cent whole person impairment would indicate something very far short indeed of a most extreme case. That being so, the plaintiff should be regarded as having failed to prove an element essential to recovery of damages for non-economic loss. The award of damages under that heading should be set aside. Damages - economic loss 84The primary judge awarded $71,000 for past economic loss (plus $7,810 for loss of past employer superannuation contributions) and $119,547 for future economic loss (plus $13,150 for loss of future employer superannuation contributions). There were also sums for past and future domestic assistance. 85In assessing economic loss, his Honour began by referring to unchallenged evidence that the plaintiff was coping with her work without difficulty before the accident but had, at that time, underlying knee and ankle problems. Because there was no evidence that knee or ankle injury had been sustained in the accident, the judge considered it (at [178]): "unsafe to approach the matter of assessment on the basis that the plaintiff must be taken as she is found and that the accident must be seen as the material contributing factor giving rise to the plaintiff's impairment of earning capacity so as to, in this case, shift the burden to the defendant to call evidence to untangle what level of disability is due to the injury in question, and what level of liability is due to the underlying condition along the lines of the conventional common law authorities: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164." 86His Honour then said: "Instead, the plaintiff is required to prove a relevant causal connection, and the evidence does not permit that conclusion: s 5D and s 5E of the CL Act 2002. That said, in the absence of explanatory medical evidence I must make some assessment as best I can of the degree of attribution of the respective problems because it would be unsatisfactory to simply make no assessment." 87The judge went on to note that the plaintiff was coping quite well with her work before the accident without any knee or ankle symptoms but those matters had a clear capacity to interfere with her activities at some unascertainable future point. That being so, he considered it appropriate to apply a "discount factor to reflect the potential vicissitudes posed by the underlying knee and ankle problems" (at [182]). The factor chosen was 50 per cent for past economic loss and 25 per cent for future economic loss. The figures for past and future economic loss quoted above reflect the application of those discounts. 88As I have said, the plaintiff returned to work soon after the accident and was assigned initially to light duties. After about a month, she said that she could not continue to work at her former level which included significant overtime. Her employer then told her that if she was not going to work overtime she should not come back. She therefore did not present herself for work at the Primo factory after September 2006. Instead, she found lighter work in a factory at Warwick Farm. But that involved a lot of standing and she left after a very short period. 89The judge expressly rejected, as inconsistent with the medical evidence, the proposition that the plaintiff's inability to continue in the Warwick Farm position resulted from her injury at the Primo factory. He added that the degree to which the problems with standing resulted from the knee and ankle problems "was left unexplained". But the judge accepted, on the basis of the opinion of Dr Matalani, that the plaintiff had been unable to work since leaving the Warwick Farm position and that that was "on account of the injuries to the back and neck and the resultant disabilities". 90Primo and the Trust contend on appeal that, in assessing past and future economic loss, the primary judge failed to take proper account of the supervening causes of impairment of earning capacity represented by the medical conditions affecting the lower limbs. That contention is advanced in the context of a number of discrete arguments. 91First, Primo and the Trust submit that the judge's findings of inability to work failed to take account of compelling contemporaneous evidence, being the several WorkCover medical certificates to which reference has already been made. These show that the plaintiff's own treating doctor had, in the period immediately after the accident, formed an opinion that she was, within less than a month, fit to resume work. The qualification concerning lifting and like activities that appeared in the first three certificates was not repeated in the fourth (28 August 2006). 92Second, Primo and the Trust say that the opinion of Dr Matalani (one of the experts whose evidence the judge preferred) represented an unreliable and inadequate basis for the judge's conclusion that the accident had rendered the plaintiff unable to work. The opinion was that the plaintiff suffered a soft tissue and chronic musculoligamentous strain of the neck and back representing zero whole person impairment in relation to the neck and 7 per cent in relation to the back. That opinion was stated in a report of November 2009 and repeated in a further report of February 2011. 93Third, Primo and the Trust point out that, even though Dr Matalani had assessed the disability at such a low level, he expressed the apparently inconsistent opinion that the plaintiff was "practically unemployable". More precisely, he said that she was unsuitable for work requiring repetitive bending and twisting of the spine, prolonged uninterrupted sitting, prolonged waking and standing, heavy manual handling or sustained flexion or extension of the neck - factors that, viewed in the context of the plaintiff's limited English and eduction, were likely to cause difficulties in obtaining suitable employment in the open labour market. 94Fourth, Primo and the Trust point to the inconsistency of the conclusion as to lack of earning capacity with both Dr Matalani's assessment of 7 per cent whole person impairment (related wholly to the back) and the contemporaneous evidence provided by the WorkCover certificates. 95There is merit in the submissions of Primo and the Trust. Again, the absence of contemporaneous medical evidence as a basis for the conclusions reached and the reliance on medico-legal reports prepared at a much later time provide an insubstantial basis for findings of causation. As I have already said, attention to the contemporaneous evidence, such as it was, would have supported a finding of some immediate but apparently transient soft tissue injury of a minor kind only to the area of impact. More serious injury to the chest, back and neck manifested itself a year and a half after the event and, as stated, was of a degenerative nature consistent with gradual onset. 96The problem of lack of differentiation between contemporaneous medical assessments and later evaluations - and between the significance of each - is emphasised when one reads Dr Matalani's report. Under the heading "History of Presenting Condition", Dr Matalani refers to pain in the neck and back in the period immediately after the accident and to the two-day absence from work. He then moves to a description of pain in the legs, hands and arms which is introduced by the ambiguous word "Subsequently"; then a reference to x-rays to the ankle and foot in October 2006 which showed no injury; then a reference to pain emerging in the knee and ankle and the MRI of July 2007 which showed degenerative changes; then a reference to referral for MRI of the spine in February 2008 and the treatment to the lower back and leg in November 2008; and finally a reference to to a further MRI in early November 2009. These events are recorded in a way that implies that they occurred as part of a continuum of effects of the accident. 97One may readily accept that Dr Matalani dealt with matters frankly and on the basis of the materials he was given and the history provided by the plaintiff herself. The point is that the conditions communicated to the expert witness more than three years after the event went far beyond those with which the plaintiff presented when she obtained medical treatment in the period immediately after the accident. To the extent that that method of communication implied that all the identified conditions had their origin in the accident, it created an inaccurate impression. The risk that the court might proceed on the basis of such an inaccurate impression would have been substantially reduced had treating doctors given evidence and been cross-examined. 98With the evidence in the state I have described, it was not open to the judge to find, on the balance of probabilities, that the plaintiff had proved a relevant causal connection between the workplace accident and the condition that, on her case, caused her to be incapable of working to earn her living. It is true that she continued at the Chullora factory for only two months after the accident (leaving at the end of September 2006), then went to the Warwick Farm position and soon afterwards (presumably by the end of October 2006) stopped working altogether. What does not appear from the evidence is that the soft tissue injury that had, up to that point, been the only observed and diagnosed consequence of the accident was causative of any disability that brought about, within the space of some three months, complete incapacity to engage in gainful employment. It may be that the health problems observed a year and a half (and more) later by the medico-legal witnesses were productive of such incapacity. But those health problems were not shown to have been caused by the event of 1 August 2006. 99On the whole, therefore, I am of the opinion that the challenges made to the judge's findings on economic loss succeed because relevant causation was not proved by the plaintiff. 100This makes it unnecessary to deal with a discrete matter not so far mentioned, namely, the award made by the judge for domestic assistance. I do so nevertheless.The judge held that s 15(3) of the Civil Liability Act precluded any damages for past domestic assistance but awarded $76,305 for future domestic assistance. Primo and the Trust contend that this was in error because it failed to give effect to s 15(3) in relation to the future component. The plaintiff accepts the correctness of that argument and concedes that the damages award should have been reduced by the $76,305 figure. Conclusions 101The conclusions I have reached may be summarised as follows: 1. The appellants should be granted leave to amend their notice of appeal by adding a ground of appeal in the terms set out at [62] above. 2. The primary judge afforded appropriate weight to Ms Todd's report. 3. The primary judge correctly accepted the evidence of the plaintiff. 4. The primary judge erred in finding that P & M Smallgoods Pty Ltd (the first appellant) was Ms Andjelov's employer and vicariously liable accordingly for negligence on her part. 5. The primary judge correctly held that the two appellants owed to the plaintiff a duty of care in negligence either corresponding with or very similar to an employer's duty. 6. The primary judge correctly found that the appellants breached the duty of care owed by them to the plaintiff. 7. The primary judge erred in finding that Kaybron 24 Pty Ltd carried no responsibility for the loss and damage suffered by the plaintiff. He should have found that that company carried a responsibility of 10 per cent, thus activating s 151Z(2) of the Workers Compensation Act to that extent. 8. In relation to non-economic loss, the judge should have found that the threshold of 15 per cent of a most extreme case had not been met, so that an award of damages was precluded by s 16 of the Civil Liability Act. 9. The judge's assessment of damages for economic loss was not soundly based. There should have been no award of damages for economic loss. 102I therefore propose the following orders: 1. Grant leave to the appellants to amend their notice of appeal by adding the following ground of appeal: "The primary judge erred in the exercise of his discretionary assessment that Kaybron No 24 Pty Ltd ought to bear 10 per cent of the culpability involved in the accident in question." 2. Appeal allowed. 3. Set aside the judgment and orders of the District Court. 4. In lieu thereof, order that the District Court proceedings be dismissed with costs. 5. That the respondent pay the appellants' costs of the appeal. 6. Order that the respondent be granted a certificate under the Suitors Fund Act 1951, if qualified. 103HOEBEN JA: I agree with Barrett JA and the orders which he proposes. 104This Court has said on many occasions that the tender of medical reports and medical records where complex and controversial medical issues are involved is unsatisfactory. This case is yet another example. There was a real controversy between the parties as to the nature of the injuries suffered by the respondent and their effect. The resolution of that controversy would have been greatly assisted by oral evidence, not only from those doctors retained for medico-legal purposes, but most especially the treating doctors. That was not done. 105Since the primary judge reached his conclusions as to damages on the basis of his analysis of the available (albeit limited) medical material, this Court is in the same position and can carry out that process for itself. In my opinion, the medical records and certificates provided at the time of the incident and in the months following, better accord with the conclusions of Barrett JA than those of the primary judge. In particular, the conclusions of the medico-legal experts called in the respondent's case were based on an unqualified acceptance of the respondent's evidence. That evidence, however, was different to that which was recorded in the records of those doctors who treated her at the time of and following the incident. 106TOBIAS AJA: I agree with the orders proposed by Barrett JA for the reasons he has expressed. I would also endorse the remarks of Hoeben JA at [104] which deal with a similar problem to that to which I referred in Morvatjou v Moradkhani [2013] NSWCA 157 at [110]-[113]. In my respectful opinion, something needs to be done about these problems. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2013