Supreme Court New South Wales Medium Neutral Citation: Carr v O'Donnell Griffin; Carr v Wagga Mini Mix and Pre-Cast Concrete Pty Limited [2013] NSWSC 840 Hearing dates: 2/4/2013, 3/04/2013 & 4/04/2013 Decision date: 27 June 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The parties are to bring in short minutes of order reflecting the up to date figures for damages to the judgment date and the s 151Z(2) apportionment. Catchwords: TORTS - personal injury - joint tortfeasors - worker subcontracted by employer - liability of employer and controller of worksite - pre-existing degenerative conditions - vicissitudes Legislation Cited: Civil Liability Act 2002 Social Security Act 1991 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Bourke v Victorian WorkCover Authority [1998] VSCA 24 Cole v DIB Group t/as DIB Group Pty Ltd t/as Hill & Co & Anor [2008] NSWDC 201 Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74 Estate of the Late M T Mutton by its Executors & R W Mutton t/as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340 Froom v Butcher [1976] QB 286 Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 Kearney v Ballyfore Engineering & Excavations Pty Ltd [2011] NSWSC 210 Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638 Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Stevens v Bodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Category: Principal judgment Parties: 2009/339807 Rodney James Carr (Plaintiff) O'Donnell Griffin (Defendant 2011/354221 Rodney James Carr (Plaintiff) Wagga Mini Max and Pre-Cast Concrete Pty Limited Representation: Counsel: 2009/339807 M Cranitch SC with CM Inglis (Plaintiff) M Fordham SC (Defendant) 2011/354221 M Cranitch SC with CM Inglis (Plaintiff) L Morgan (Defendant) Solicitors: Commins Hendricks (Plaintiff) Norton Rose (Defendants) File Number(s): 2009/339807; 2011/354221 Judgment 1HER HONOUR: The plaintiff seeks damages for personal injuries sustained in an accident that occurred on 25 February 2007 when, during the course of his employment, he sustained injury to his back, shoulders and neck. There are two proceedings involving the plaintiff. In proceedings No 2009/339807 the defendant is O'Donnell Griffin. In proceedings No 2011/354221 the defendant is Wagga Mini Mix & Pre-Cast Concrete Pty Limited. The evidence in proceedings No 2009/339807 is evidence in proceedings No 2011/354221. 2The first defendant, Wagga Mini Mix & Pre-Cast Concrete Pty Limited ("Wagga Mini Mix") was the plaintiff's employer at the time of the accident. The second defendant O'Donnell Griffin contracted with Wagga Mini Mix to supply workers and equipment. The plaintiff, Mr Carr, was operating a bulldozer on a site controlled by O'Donnell Griffin when the accident occurred. 3The plaintiff and his daughter, Toni Carr, gave evidence and were cross-examined. Drs Miller and Dalton gave evidence and were cross-examined. Background 4The plaintiff was born on 13 January 1964 in Tumut. He is currently 49 years of age. He now resides in Adelong, a village of about 800. It is located approximately 19 kilometres from Tumut. 5He grew up in Tumut. He attended school in Tumut until Year 10 and obtained the School Certificate. While at school, the plaintiff worked about three hours per week with the local pharmacies. At the age of 16 years upon leaving school the plaintiff commenced studying a pre-apprenticeship course in mechanics and welding attending Technical College. He attended this course for approximately one year. 6From the age of 15 years, the plaintiff obtained various labouring jobs in the Tumut area, firstly on a part time basis and then full time. He worked as a labourer with APM Mills, CSR, Softwood Mills and Hardy Bros. He worked his way up to leading hand. The plaintiff worked at CSR for about 15 years as a leading hand. He was employed at Hardy Bros in Tumut as a plant operator for five years. 7In mid 1982, the plaintiff had a motorbike accident. The plaintiff remembers that he hurt his right knee by hitting a telegraph pole in the accident. His medical records record a fall in March 1983, although they do not indicate if this was a fall from a motorbike. The plaintiff was unable to recall any details of this accident. The plaintiff was also asked about a diving accident in early 1998 where he dived into shallow water and hurt his neck but he didn't remember it. In June 1998 he had an accident when working on a car that was propped up on some bricks. The plaintiff recalled that he had to have five stitches in his arm after being struck by the handbrake cable although he did not recall any injury to his neck or shoulder. 8Between 1998 and 2001, the plaintiff obtained employment with Downer Connect as an optic fibre specialist for approximately three years. This employment involved travelling to install optic fibre. At this time he was based in Melbourne but he carried out jobs in Queensland and various other places. 9In about 2001, the plaintiff spent three to four months training as a carer with Valmar Support Services in Tumut. For six months after he qualified, he was the carer in charge of the Danger Unit at Valmar Disabled Unit. He also provided care for his mother who resides in her own home and he still visits her. 10During the course of his various employment placements the plaintiff undertook a number of on the job training courses and he obtained a Plant Operators Licence and Front End Loader Licence. He also obtained tickets for operating heavy machinery, including a backhoe, excavator loader, end skids gear, grader and bulldozer, as well as tickets in plastic pipe fitting. 11In or about 1989, the plaintiff married his first wife. They had two children together. His son and daughter from that marriage lived with their mother when the relationship ended in or about 1993. They are now aged 25 and 22 years. 12In 1994, the plaintiff married his second wife. They had two daughters together, Deni who is now 18 years of age and Toni who is now 15 years of age. 13The plaintiff was employed by Wagga Mini Mix and Pre-Cast Concrete Pty Limited. While there was some disagreement whether the plaintiff was employed by Wagga Mini Mix in 2002 or 2004, it does not really matter and I accept that the plaintiff was employed by Wagga Mini Mix from 2002. 14In or about 2002, the plaintiff commenced work as a plant operator/leading hand foreman, specialising in the installation of optic fibre cables with the business Wagga Directional Drilling. His duties included operation of heavy machinery, and the laying and maintenance of optic fibre cables. At that time he was living in Tumut with his second wife and both of his daughters Deni and Toni. In about 2004, the plaintiff's second marriage ended. Toni and Deni lived with their mother following the separation. 15The plaintiff enjoyed outside activities. He enjoyed playing rugby league (at one stage at first grade level in the local competition), playing golf about once a month and fishing off the bank. He enjoyed motorcycle riding. Once a year he and some mates would take a motorcycle trip along the Great Ocean Road. He also enjoyed cooking and kept a tidy house. Prior injuries 16If the plaintiff has any previous problems, it was as long ago as 1982 or thereabouts (T64). The plaintiff did not accept that he had had a driving accident in 1998, but believes it could have been his brother in law (T64). However, he did accept that he had an accident in June 1998 where he injured his arm. I accept that the plaintiff's prior injuries had resolved and did not cause him any problems. 17It is convenient at this stage that I record my findings about the plaintiff. I closely observed the plaintiff when he gave evidence and was cross examined. He gave his evidence in a straightforward manner. I have no hesitation in accepting his evidence as being truthful with one exception to which I will briefly refer later in this judgment. The plaintiff accepted that in a statement he made he had incorrectly stated the speed at which the bulldozer was travelling. The accident 18The plaintiff gave evidence that he was working on multiple sites along the Sydney to Melbourne rail corridor. According to the plaintiff, Wagga Directional Drilling was contracted by O'Donnell Griffin to lay cable along the Melbourne to Sydney line in the more difficult parts. As he explained at (T19.41-47): "They had blokes there, but they only more or less, they say, take the cream in the business. They say they were doing all the easy bits, with no rock and everything, so they contracted us. They did a water main, and had to go underneath the water main. And we had proper locaters and stuff for any good - you know, any things you could damage. And so they hired us, and in the end we done a good job there so they give us other little bits and pieces." 19The area of rail corridor for which O'Donnell Griffin subcontracted workers and equipment from Wagga Mini Mix was located between Wallendbeen and Galong, a distance of approximately 41 km (Ex 1D/4). The plaintiff was digging trenches and laying cable over a distance of up to 900 metres per day (T19.40 - T20.11). The site he was working on at the time of the accident was located near Harden, approximately 110 km from his home in Tumut, and about the same distance from Wagga Wagga where his employer is based. 20On Sunday, 25 February 2007, the plaintiff was working alone on site on the west side of the Harden Bridge at Harden adjacent to the Melbourne to Sydney railway line ("the site"). However, on Saturday 24 February 2007 (the previous day), the plaintiff and his team were directed to lay cable at Wantabadgery which took all day. As the bulldozer was needed on Monday for another job by Wagga Mini Mix, the plaintiff had to complete the job, that of spreading the ballast pile, on his own on Sunday (T23.9-14). The plaintiff was reinstating an area in which the area had been cleared and optic fibre cable had been laid. To do this, he was using a Case 14.5 1150G tonne bulldozer ("the bulldozer") (Ex C). He was carrying out the task of spreading ballast, which is used to stabilise the railway sleepers upon which the track rests. There is a diagram showing a pile of ballast, the position of the pile that the plaintiff was clearing and where the fibre optic cable had been laid (see Ex A). 21On the day of the accident the plaintiff was required to create a ramp leading up to the pile of ballast then make successive passes with the bulldozer, pushing an amount of ballast off the top of the pile each time, then reversing back and pushing forward again. With each pass over the ballast, the bulldozer blade was dropped about 30 cm so as to push the top layer off the pile, which was then spread a bit further each time. This process is known as sheeting. The bulldozer is operated at a fast walking pace. The plaintiff estimates that he was travelling at no more than 10 kilometres per hour. To reverse the bulldozer the plaintiff had to move out of his seat and twist to the right, because vision through the back window was obscured by hydraulic rams at the back which provided the motive force for tynes which were attached to the back of the dozer. These tynes had to be raised, as they were not in use on this occasion. The plaintiff gave evidence that the raising of the tynes blocked about half the window (T30). 22The plaintiff was leaning to the right hand side, his left leg was pushing up against the dash (T32.9). The right leg was just hanging on to the seat, the left arm was operating the controls and the right arm was sitting on a tool box supporting, in part, his body weight (T32). Part of his weight was supported by the seat back (T33). His body was raised about 6 or 8 inches above the seat (T.33.37). The plaintiff had to adopt this position because the vision through the rear vision mirrors were not effective having regard to the positioning of the tynes, and he could only see to the right of the vehicle, but not directly behind or to the left because of the tynes. In addition, there was so much dust and dirt flying around that it was impossible to see using the mirrors (T34.17). There was no spotter, another worker watching out for hazards and other workers, on this day. 23The plaintiff had performed about four movements forwards and backwards pushing the ballast, reducing the pile by about 4 feet or 1.2m when, as he reversed, the bulldozer came to an immediate halt and spun to the right, causing him to be thrown off the seat, backwards and downwards in the cabin. He was immediately aware of pain in his back, shoulders and knee. He was shocked and dazed. His nose was bleeding. 24He was able to get out of the bulldozer and inspect the area. It was at that time that he became aware there was a metal post, formed by a doubled up piece of railway track, welded back to back, that had been cut off (leaving a 30 centimetre length exposed) that had been buried in the ballast. (A similar but taller piece of metal post is shown in Ex A, p 6.) This metal post was not visible to him prior to that time, as it had been covered with ballast. During the last forward movement with the bulldozer, the post became exposed after the bulldozer had passed over it, pushing the next layer of ballast ahead of it. When the bulldozer was reversing back over the ballast pile, it hit the exposed metal post. 25As the plaintiff was in severe pain he drove straight home to Tumut and rested. When he awoke the next morning he had difficulty moving due to the pain in his back and left shoulder. His right leg was also tingling and he was generally aching and felt terrible (T38). 26It is now convenient that I record that in cross examination the plaintiff was asked about a statement he had made in the Workers' Compensation Commission proceedings in relation to the accident. In that statement he had stated that the bulldozer he was driving was doing approximately 30 kilometres per hour in reverse when it hit the exposed post. The plaintiff stated in evidence that although he did say this in his statement, on reflection it was probably inaccurate as the bulldozer could not attain a speed of 30 kilometres per hour. He believed that when the bulldozer dropped off the back of the ballast pile, although its actual speed may have been only 5 kilometres per hour, with gravity it would have been dropping at a faster speed. He also stated in evidence that the bulldozer didn't have a speedometer but agreed with counsel that he was probably going quickly in reverse when the accident occurred (T71-72). The evidence contained in his statement was incorrect. As previously stated, when he was challenged in cross examination, he accepted that he was in error and upon reflection that he had overstated the speed. Are the defendants liable in negligence? 27The plaintiff seeks a verdict against both defendants; he alleges that they both were negligent. Wagga Mini Mix and O'Donnell Griffin deny liability and both allege contributory negligence. The legal principles 28The relevant sections in relation to liability for negligence of the Civil Liability Act 2002 are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 29It is not in dispute that the defendants owed the plaintiff a duty of care to take reasonable steps to avoid a reasonably foreseeable and real risk of injury. What constitutes reasonable care is measured by the objective and impersonal standard of the reasonable man - see Cook v Cook [1986] HCA 73; (1986) 162 CLR 376. The risk of injury is both foreseeable and real if it is of a kind that would be sustained by a member of the class of which the plaintiff is a part and is not far-fetched or fanciful, irrespective of its likelihood as a probability. 30The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there "must be" a practicable alternative and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff must provide at least some evidence that the alternative is a practicable one which is open to the defendant - see Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 581; Stevens v Bodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 50; and Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (2005); 138 LGERA 50; (2005) 213 ALR 249; (2005) 79 ALJR 565. O'Donnell Griffin 31O'Donnell Griffin was contracted by Australian Rail Track Corporation to upgrade the railway track along the Sydney to Melbourne railway line. It formed a subcontract agreement with Wagga Mini Mix in relation to this work for the section between Galong and Wallendbeen in New South Wales (Ex 1D/4). The plaintiff was employed by Wagga Mini Mix as a plant/operator/optic fibre specialist. 32The primary responsibility for control of the day-to-day system of work and direct supervision of the workers from Wagga Mini Mix rested with O'Donnell Griffin at the time of the accident. The supervisor on site was Mervyn, from O'Donnell Griffin. As previously stated, on the day of the accident, the plaintiff was required by O'Donnell Griffin to move the pile of ballast in a work area that was controlled by O'Donnell Griffin. As such O'Donnell Griffin owed the plaintiff a duty of care. 33The plaintiff alleges that O'Donnell Griffin was negligent in that it failed to ensure that the area was properly cleared following laying of the optic cable; failed to properly, if at all, instruct the persons laying the pipe as to procedures for clearing the land; failed to ensure good housekeeping practices for outdoor work; placed ballast to be moved by the plaintiff near a hazard which was not clearly visible to the plaintiff; failed to ensure that hazards were properly removed rather than being left on the site; failed to cut off the steel pole at or below ground level; failed to employ a safe system of identifying possible hazards; failed to warn the plaintiff of the hazard, being a pole which was cut off and not readily visible; failed to make visible to the plaintiff any hazard from his vantage point in the bulldozer; and failed to instruct its workers to remove all dangerous items from the site. According to the plaintiff's counsel it must be inferred that the ballast was dumped as part of the process of work carried out by O'Donnell Griffin, and dumping it over and concealing a hazard, knowing that the ballast had to be spread out, was clearly negligent. 34The plaintiff submitted that the appropriate way of dealing with the pole was to have removed it before it became a hazard. The plaintiff further submitted that the system of work which was adopted by O'Donnell Griffin was lax in the extreme and there was no attempt by them to maintain even a reasonable supervisory role over circumstances which, potentially, were very dangerous. According to the plaintiff, it was clearly foreseeable there was a potential for harm in having a hidden trap within the ballast if not to the bulldozer operator, then to those who might have to deal with the ballast and come upon it unexpectedly. 35While O'Donnell Griffin pointed out that there was no evidence, firstly, as to how the ballast was placed over the pole; secondly, when the other poles had been removed, how long it had been there ; and finally, whether O'Donnell Griffin had sufficient time to discover it, as O'Donnell Griffin was in control of the site, it would have been in possession of this knowledge or should have been. It could have called evidence on any of these topics to show that it was not responsible but it chose not to do so. In any event, regardless of who actually placed the ballast such that it was covering the post, O'Donnell Griffin was the contractor on site and they were responsible for site safety. 36The plaintiff relied on an expert's report from Mark Hennessy of Mark Dohrmann Partners Pty Ltd dated 10 February 2009 (Ex A). Mr Hennessy referred to s 10 of the Occupation Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001. Section 10(1) of the Act, as was in force at the time of the accident, reads: "A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health." This applies to premises that are controlled in the course of a trade, business or other undertaking of the person. Division 1 of Part 4.2 of the Occupational Health and Safety Regulation discusses general duties of controllers of premises. A controller of premises is to "identify any foreseeable hazards arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises." This is to include hazards arising from the layout and condition of the premises and the physical working environment and it is to occur during any design of the premises and before the premises are provided for use as those of work (cl 34). 37Mr Hennessy stated that the risk associated with identified hazards is to be assessed and then eliminated or at least controlled. The controller of the premises must also provide information to employers who have responsibilities under this Regulation to allow them to fulfil their responsibilities. This information is to cover any foreseeable hazard arising from the premises that have not been eliminated, and how that risk is controlled, and any measures that the employer may need to adopt to control any such risk (cl 35 and 38). The questionnaire 38O'Donnell Griffin filled in a Subcontract Prequalification Questionnaire (Ex 1D/3) which formed part of the subcontractor evaluation process. The objective of the questionnaire, as stated in the document, "is to provide an overview of the status of the subcontractors' Occupational Health & Safety (OH&S) management system". This questionnaire was jointly completed by the manager of Wagga Mini Mix and the construction manager of O'Donnell Griffin on 22 November 2006. 39In O'Donnell Griffin's Subcontract Prequalification Questionnaire (Ex 1D/3), Question 4.3 is as follows: "4.3 Is there a procedure by which employees can report hazards at workplaces?" The answer to this question was "No" with the comment "A pro forma is used to conduct a site specific Risk/Hazard survey". As it turns out, the answer "No" was correct. 40Question 5.1 asks whether employees are involved in decision making over OH&S matters to which the response was: "Yes. Employees are encouraged to raise any issues at toolbox meetings." 41In relation to identifying hazards on site, the plaintiff gave the following evidence (T22.13-40): "Q. Were you able ever able to discuss with the supervisors at O'Donnell Griffin the question of whether or not there were hazards that you had to take care of on the site? A. I didn't really have to. Q. Okay. Why was that? A. Well, you sort of go on - there was hazards, they weren't something you'd trip over. Only railway rubbish you were nowhere near. Mervyn - Mervyn, which was the boss - he'd come around every now and then, but he was pretty busy, and if there was anything you'd tell him. Usually there wasn't. He always had what he called a leading hand around, but you'd barely see him. Q. Did they give you spotters and so forth when you were operating machinery? A. I used my own spotters for the machinery, but train spotters were a big thing because you were in a railway corridor. Q. And was that provided by O'Donnell Griffin? A. That was provided by them, yes. Q. And so you never did you ever attend a toolbox meeting with O'Donnell Griffin? A. No. No, unless they called it a different name or something, but toolbox meeting. Q. Well, did you ever have a meeting, during smoko or any other time afterwards, where safety matters were discussed, with O'Donnell Griffin? A. No, well, we didn't. No." 42The plaintiff was part of a team of five or six men from Wagga Mini Mix. There were no regular safety meetings conducted with either himself or any of his team. He was unaware whether O'Donnell Griffin conducted such meetings with its own employees. The plaintiff and his team were told where they were going and would meet somewhere for breakfast on the way to a job site. The only time he went near O'Donnell Griffin's premises was when he had to pick up cable, otherwise they would meet on site (T21.35 48). There were no toolbox meetings between O'Donnell Griffin and the employees of Wagga Mini Mix nor was there any regular contact with Mervyn the site supervisor whereby the employees of Wagga Mini Mix could raise their concerns. There was no real means of communication between O'Donnell Griffin and employees of Wagga Mini Mix so there could be an exchange as to the potential risks and hazards on the work site and what was being done to address them. 43Importantly, the plaintiff gave evidence (T95-96) that he had seen other similar metal posts placed at regular intervals along the railway line and there were other metal posts, like the one which the plaintiff hit with his bulldozer, which had been already been removed from along the rail corridor where the plaintiff was working before the accident (T95-96) as was evidenced by the photographs (Ex A). Had O'Donnell Griffin carried out the task of assessing the jobs that were required to be done, and ensure that they did not present a hazard it is more likely than not the post would have been removed prior to the plaintiff carrying out the spreading of the ballast in the bulldozer and the accident would not have occurred. Further, I accept that O'Donnell Griffin failed to instruct their employees that posts should not be cut off and, if they had seen any posts, that they should not be covered with ballast. Spotters 44Both O'Donnell Griffin and Wagga Mini Mix employed spotters. A "spotter" is another worker who watches out for hazards such as overhead wires or gas lines, other workers on site. In the case of the railway corridor, the spotter obviously watches out for trains. He or she signals to the workers when a train is coming (T20.14). O'Donnell Griffin should have employed a spotter when workers were working on the railway corridor, as was the case on the day of the accident. 45The plaintiff's evidence is that he usually had a spotter when he was working on an excavator but not so much on a dozer. The following exchange provides an explanation of the role of a spotter (T68.41-50; 69.1-5; 69.15-19): "Q. I think one of the things you told her Honour was that whilst O'Donnell Griffin supplied train spotters, Wagga Directional Drilling would usually send you a spotter? A. Usually have a work mate that you can get to do it with an excavator. Q. On that day you weren't given a workmate were you? A. No because of the - because it was Sunday. They went back but the job had to be done before the dozer left see. Q. Ordinarily Wagga Directional Drilling would have given you a workmate that would have kept an eye out on what you were doing, wouldn't they? A. No not really. Its a thing if you've got a bloke there you can get on watch or not just as long as they don't stand in the road sort of thing. It's not a. Usually get a spotter. Usually have a spotter when you're digging around high pressure lines, gas lines, anything like that and that's all you really need but. ... Q. Did you tell her that you were supposed to have a workmate with you but he hadn't turned up or wasn't there? A. I probably would have mentioned it's good to have a spotter but I knew there was going to be no-one there because it's a simple job. You don't - you should actually have a train spotter there too if it comes to that." 46The plaintiff also said a spotter was not required that day as he was working on his own in an area where there were no additional hazards such as overhead wires and there was no need given the nature of the work he was doing (T84.18-44). The plaintiff gave evidence that even if there had been a spotter present, he believed they would not have seen the post (T85.6). However, the plaintiff's vision while driving the bulldozer is more limited than that of a spotter. While I accept it is the plaintiff's opinion that a spotter would not have seen the post, his view does not override the responsibility of the defendants to employ a spotter, or at least a co-worker who can be used as a spotter when necessary. O'Donnell Griffin should have had a spotter present, so should have Wagga Mini Mix. It may not have been necessary to have had two spotters but both the defendants were responsible to ensure that one spotter or a worker who can act as a spotter when needed was present at the work site. Had the spotter been present, he or she would have seen the metal posts lying around on the site. Armed with this knowledge, the spotter could have checked the ballast after each load had been removed by the plaintiff in his bulldozer and it is more likely than not the spotter would have identified the pole before the plaintiff's bulldozer's tynes collided with it. 47In summary, on 25 February 2007 at the time of the accident, the plaintiff was performing the task of "sheeting" a pile of ballast which he had been instructed to do by the supervisor from O'Donnell Griffin. This task involved scraping off the top layer of ballast with a bulldozer and spreading it by pushing it forward, then reversing back over the pile and scraping and pushing forward the next layer. The system of work involved risks to safety as the driver of the bulldozer was placed in a position that was potentially dangerous. Firstly, it was not known if there were any hazards hidden by the pile of ballast and secondly, the driver had only limited vision through the rear window of the bulldozer when he was reversing off the ballast pile and he was forced to adopt a position in the bulldozer cab where his body was twisted and extended in order to be able to see, partially, where he was going when reversing. 48The plaintiff was placed at risk of injury because the pole was cut off at about 300 mm above the ground and then left in situ, thus reducing its visibility, especially to an operator reversing a vehicle, and increasing the risk of it causing injury to a person on foot or in a work vehicle, such as might work beside a train line from time to time. The risk was increased by the placement of a pile of ballast adjacent to the remaining section of pole, thus concealing if from the view of a worker who would inevitably have the task of spreading the ballast over a wider area. The limitations of the bulldozer made it more difficult to see the pole, in particular, the limitations of the mirrors and the plaintiff having to adopt an awkward, twisted and unstable posture, from which he fell when the bulldozer struck the pole. Further, there was no effective means of communication between the workers on site. Had there been, risks could have been identified and the workers warned off them. 49In my view, it was reasonably foreseeable that it was likely that there were posts or other dangerous objects not visible but present under the piles of ballast so when the plaintiff's bulldozer tynes came into contact with the metal post the impact would cause him to be thrown about the cabin and suffer injury to his back, left shoulder and left knee. The risk of the plaintiff suffering injuries was foreseeable and not insignificant. 50The measures which O'Donnell Griffin, in their role as principle contractor and site manger, could have taken to prevent exposing the plaintiff to risk were: * By following out the type of review or audit of work site safety called under the Occupational Health and Safety Regulation. A competently-conducted and timely inspection would have been likely to have identified the presence of a metal post cut off 300 mm above ground level and comprising a risk of injury to workers who were walking or operating vehicles and machinery in the area, and should have promoted earlier intervention. * By training their workers and contractors in workplace safety including practical advice on hazards, and on good housekeeping in outdoor work environments. * By providing better supervision of the workplace, to prevent workers taking dangerous short cuts such as cutting a pole off instead of removing it, and to prevent workers from wandering around near where the bulldozer was operating. * By removing the pole in the first place, instead of cutting it off. * By making the presence of the pole with hazard highlighting warning materials, such as brightly coloured tape and/or bunting. * By constructing a protective barrier around the post to prevent people injuring themselves on it, and to prevent it being concealed by the placement of materials such as ballast close to it. 51All of the above are reasonable practicial alternatives that could have been implemented by O'Donnell Griffin to prevent the plaintiff suffering injury. In these circumstances, a reasonable person would have taken at least some of these precautions as it is likely that a person such as the plaintiff carrying out bulldozer work in a site where hazards had not been removed would suffer injury. Hence, it is my view that O'Donnell Griffin breached its duty of care to the plaintiff and was negligent. Wagga Mini Mix 52It is noted that in its defence Wagga Mini Mix (at D [8]) pleaded that the proceedings have been commenced in breach of the time limitation prescribed in s 151D of the Workers Compensation Act 1987 and says that these proceedings are not maintainable except with leave of the Court. However, no evidence was given on this subject and no submissions were made by either party. Hence, it is not necessary to deal with this issue. 53Wagga Mini Mix has an overriding and non-delegable duty to the plaintiff as his employer which required it to provide a safe system of work to address any foreseeable risk of injury. Part of an employer's duty of care is that it require that reasonable care be taken of its employees, even by others, over whom it has control: Kearney v Ballyfore Engineering & Excavations Pty Ltd [2011] NSWSC 210, Rothman J at [144]. 54The plaintiff alleges that Wagga Mini Mix was negligent in that it failed to take any or adequate precautions for the safety of the worker; exposed the worker to a risk of injury which could have been avoided by reasonable care; failed to warn the worker of the dangers incidental to his work; failed to provide appropriate means of inspection of the area in which the worker was employed and to ensure good housekeeping practices for outdoor work. Other particulars of negligence were pleaded but I will not repeat them here as I have already decided that they were the responsibility of O'Donnell Griffin. Wagga Mini Mix submitted that the only particular negligence levelled against it by the plaintiff is the failure to inspect the site and a failure to supervise. I do not agree. The other particulars of negligence have been referred to above. 55Senior counsel for the plaintiff submitted that if there was an unsafe system of work under which the plaintiff was required to work, provided that it can be seen to be causally related to the accident, then it is almost impossible for the employer to escape liability. The plaintiff submitted that the non-delegable duty was breached in failing to enquire or to investigate whether the tasks, which he was being given to do, were inherently as safe as they could be. 56The Occupational Health and Safety Act 2000 (the Act) aimed to protect the health, safety and welfare of people at work. It contained provisions that require employers to consult with employees on health, safety and welfare matters. Division 1 of Part 2 of the Act prescribes that employers must ensure the health, safety and welfare of their employees when at work. This extends to (s 8(1)): * Ensuring that any plant or substances provided for use by the employees is safe and without risks to health when properly used; * Ensuring that systems of work and the working environment are safe and without risks to health; * Providing information, instruction, training and supervision necessary to ensure the health and safety at work of employees; * Providing adequate facilities for the welfare of employees at work. 57The subcontract between O'Donnell Griffin and Wagga Mini Mix stated that Wagga Mini Mix is to supply all labour, equipment and machinery to complete the works and, in the general conditions, is deemed to have inspected the site, the facilities on it and the physical conditions above and below the surface prior to commencing work. Wagga Mini Mix was also contracted to comply with all applicable legislation and carry out the works in accordance with O'Donnell Griffin's OH&S requirements. 58The plaintiff had undergone a six hour induction on arrival on the site before any work was commenced (T21.16-31). It was submitted that Wagga Mini Mix, with respect to its obligations to its employees, had complied with what was considered standard practice. 59However, nothing was done after that. The plaintiff, in cross-examination, gave the following evidence: "Q. Did anyone from Wagga Directional Drilling while you were there go out to that work site and have a look at it? A. Not that I seen no not the one I rung up and told anyway. Q. And so is it the case that they, being Wagga Directional Drilling, sent you out there to do the job and that you got out there and assessed it? A. It was already assessed. We sort of got told what to do. Q. You don't remember seeing anyone from Wagga Directional Drilling there? A. No not unless they were talking to one of the other blokes he had subcontracted like. The old fellow was in the office might have come out once but he was a locator, he often drops in and locates stuff when you hit something but other than that no only the blokes who were working with us." 60Wagga Mini Mix has not done an assessment of the work site that the plaintiff and his team were working on. The supervisor of Wagga Mini Mix should have gone and carried out an inspection of the site and ensured that it was safe. Had Wagga Mini Mix done so, it would have become obvious that there were dangerous objects lying around the site such as the metal posts and the supervisor should have become aware that it was also likely that some of them were hidden and not visible in the piles of ballast. For the reasons given earlier, Wagga Mini Mix should have ensured there was a co-worker on site that could act as a spotter while the plaintiff was spreading the ballast. It is likely that the spotter would have "spotted" the post and signaled to the plaintiff to stop while it was removed. 61As previously stated, it was reasonably foreseeable that there were posts or other dangerous objects not visible but present under the piles of ballast so when the plaintiff's bulldozer tynes came into contact with the metal post the impact of the collision would cause him to be thrown about the cabin and suffer injury to his back, left shoulder and left knee. The risk of the plaintiff suffering injuries was foreseeable and not insignificant. 62Wagga Mini Mix as employer could have taken steps to prevent exposing the plaintiff to risk by following out the type of review or audit of work site safety called for under the Occupational Health and Safety Regulation. A competently conducted and timely inspection would have been likely to have identified the presence of a metal post cut off 300 mm above ground level that comprised a risk of injury to workers who were walking or operating vehicles and machinery in the area, and should have promoted earlier intervention. There are reasonable practical alternatives that Wagga Mini Mix could have taken such as proper inspection of the site and employment of a coworker who could have acted as a spotter on site and identified the hazards such as the metal posts to prevent the plaintiff suffering injury. Hence, it is my view that Wagga Mini Mix breached its duty of care to the plaintiff and was negligent. 63I am satisfied that both Wagga Mini Mix and O'Donnell Griffin breached their duty of care to the plaintiff and were negligent. Contributory negligence 64In so far as Wagga Mini Mix is concerned, it pleads particulars of contributory negligence as, while engaged to reinstate an area of railway track using a bulldozer, if assistance or further assistance was required the plaintiff failed to seek or utilise such assistance; while engaged to reinstate an area of railway track using a bulldozer, the failure to inspect or properly inspect the area before conducting such work; the failure to exercise reasonable care for his own safety; and the failure to keep a look out or any proper look out for hazards in the immediate vicinity. 65O'Donnell Griffin pleads particulars of contributory negligence as failure to take reasonable care for his own safety; failure to keep a proper lookout; failure to check that his area of work was safe; failure to ensure that hazards were removed before operating the bulldozer; operating the bulldozer at an excessive speed; operating the bulldozer in a manner that was reckless in the circumstances; and failure to undertake his work in accordance with instructions, direction and training. 66In considering the question of apportionment, the Court is required to reduce the damages recoverable to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16. The inquiry is not concerned with the cause of the accident but with the cause of damage: Froom v Butcher [1976] QB 286 at 292. 67While assertions of contributory negligence by the plaintiff were pleaded in the defendants' defences, no submissions were made by the defendants, either in writing or orally at trial. 68While the plaintiff had observed poles similar to the one which was submerged in the pile of ballast lying around the site, no proper inspection of the site had been conducted by either defendant, and there was no spotter present at the time of the accident. As stated earlier, the plaintiff and his team were directed by O'Donnell Griffin to lay cable at Wantabadgery on Saturday, 25 February 2007 and this task had taken all day. As the bulldozer was required by Wagga Mini Mix on Monday, 27 February 2007, the plaintiff was obliged to complete the job of spreading the ballast on his own on Sunday. The plaintiff gave evidence that it was not normal practise on site to have a spotter at all times when operating a bulldozer, despite the limited vision the driver had when it was reversing. It is my view that this was a failure in the system of work that was the responsibility of both defendants. As the pole was not visible to the plaintiff before the bulldozer tyne struck it, and he was working without a spotter, in these circumstances he cannot be held responsible for causing his injuries. I do not apportion any contributory negligence to the plaintiff. Apportionment of liability 69The apportionment between the defendants must now be determined in accordance with the Civil Liability Act 2002 save for its exemption pursuant to the operation of the Workers Compensation Act 1987. 70The civil liability of an employer for injury to a worker gives rise to an award of damages under Part 5 Division 3 of the Workers Compensation Act, s 151E(1). By virtue of s 151G, damages against an employer are limited to damages for past and future economic loss. As such, the Civil Liability Act does not apply: s 3B(1)(f). However, there is no exclusion of the application of the Civil Liability Act to the claim against O'Donnell Griffin. 71The plaintiff seeks damages from both defendants under s 151Z(2) of the Workers Compensation Act thus the apportionment of damages in relation to two defendants has to be determined. An assessment of the relative contributions of the defendants requires the approach set out in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at [10] to be adopted. The Court must make: "(a) comparison both of culpability, i.e. of 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: ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 72As to contribution, the plaintiff submitted that Wagga Mini Mix is at best 10 per cent liable for any injuries suffered by the plaintiff. O'Donnell Griffin submitted that on the evidence, it appeared that Wagga Mini Mix had not inspected the site and on that basis, a contribution of only 10 per cent was inappropriate. 73O'Donnell Griffin submitted that an apportionment of 60 to 70 per cent for a breach of the duty of care to the plaintiff against it was appropriate, with a corresponding finding of 30 to 40 per cent against Wagga Mini Mix as the plaintiff's employer due to the contractual arrangements that were in place and the events that occurred. Wagga Mini Mix submitted that their share of the liability was at most 20 per cent on the basis that the plaintiff had gone on site to share a task that O'Donnell Griffin was already doing, it was work that they had control over and they gave the plaintiff instructions for the job. If Wagga Mini Mix had done an inspection it says that it would not have been able to see the metal post that was hidden by the pile of ballast and therefore an inspection would have made no difference to the outcome on the day of the accident. I disagree with this proposition because had it carried out an inspection it would have seen the metal posts lying around and been aware that they would pose a dangerous hazard if they were in the piles of ballast. 74There are a number of authorities that have dealt with the situation where an employee has been injured while working on a site to which they have been sent by their employer. I will briefly refer to DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, Cole v DIB Group t/as DIB Group Pty Ltd t/as Hill & Co & Anor [2008] NSWDC 201, TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174, Bourke v Victorian WorkCover Authority [1998] VSCA 24, Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74, and Estate of the Late M T Mutton by its Executors & R W Mutton t/as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340. 75In DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, a truck driver was making a delivery of fuel to the premises of DIB Group where he had made previous deliveries on numerous occasions. On this occasion, the driver stepped on a pit cover which was faulty. The pit cover gave way and he suffered injuries. The Court of Appeal found that a site inspection would not have, on the probabilities, revealed the risk of the unstable pit cover. To achieve that, it would have been necessary to take the further step of questioning staff of the appellant as to their knowledge of risks arising from the use of the depot. Whether such questioning would have revealed the risk was a matter for speculation. The trial judge had found that the employer, Finemores, had provided an induction to their drivers and a trainer had visited the site and was required to report on any obvious risks (Cole v DIB Group t/as DIB Group Pty Ltd t/as Hill & Co & Anor [2008] NSWDC 201 at [12] - [17]). The Court upheld the finding of the trial judge that the employer was in breach of the only duty said to arise, but that the duty, if fulfilled, would not have revealed the risk, stating at [66]: "To the extent that the employer did have a duty to its employee, whilst working on the premises of the appellant, its case in respect of breach was limited to the failure to carry out a site inspection or to warn the drivers not to step on pit covers. As a factual matter, liability of the employer was not established." 76In TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, a worker whose services had been hired out by his employer, Manpower Services (Australia) Pty Ltd, to TNT Australia was injured as a result of a faulty pallet jack whilst working at TNT's premises. It was held by Mason P (with whom Davies and Foster AJJA agreed) that an employer that hires out its employees into the control of another person without the transfer of employment to such person, retains an employer's non-delegable duty of care even though it is no more than an employment agency/bureau or "body hire company". At [67] Mason P stated: "In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees." 77In TNT Australia Pty Ltd v Christie & Ors, liability was apportioned on the basis that TNT Australia pay 75 per cent of the damages awarded to the employee as it had day-to-day conduct and care of the system of work and gave specific instructions to the employee as to the work to be done, the hours of work and the nature of that work. Manpower Services was required to pay 25 per cent on the basis that as the employer, it had a non-delegable duty of care. 78In Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, a labour hire organisation sent an employee to work at a client's warehouse. It had done nothing to ensure safe working conditions at the warehouse, failing to even visit the work site to see what the working conditions were. The employee was injured because a ladder on which he was standing was not properly secured. Giles JA (with whom Beazley and McColl JJA agreed) upheld the trial judge's finding that the injury was caused by a failure in the system of work, stating at [48]: "The failure was in the system of work, which did not properly attend to securing the ladder, and it was a breach of the defendant's non-delegable duty of care; the injury was in law caused by the negligence. There was also a direct breach by the defendant in its failure to instruct the plaintiff as to the use of ladders, negligence which may also in law have caused the injury in that, properly instructed, it may be that the plaintiff would not have assumed that Mr Madden was holding the ladder and would have gone up the ladder only when it was secured; but it is not necessary to rest the defendant's liability on that breach." 79As the company to which the employee had been hired was in liquidation at the time of the trial, proceedings were discontinued against it and the labour hire company was held to be liable in damages to the plaintiff employee. 80Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 is another labour hire case where the plaintiff was injured while working on a construction site. He was employed by Dee Why Enterprises Pty Ltd which contracted his services to a formwork subcontractor, Dalma Formwork (Australia) Pty Ltd. Dalma had appointed a supervisor, Mr Uremovic, whose services were also supplied by Dee Why Enterprises. The supervisor was responsible for ensuring that Dalma carried out its contractual obligations under the formwork subcontract Dalma had with the overall project manager of the site, Bovis Lend Lease Pty Ltd. Basten JA (with whom Beazley and Ipp JJA agreed) held at [75] that the supervisor's knowledge should be attributed to Dee Why because he was supplied by Dee Why to carry out the function: "[I]t is not clear what specific steps could reasonably have been taken by Dee Why. No doubt one might infer that a senior manager from Dee Why might have inspected the site with Mr Uremovic during the two or three weeks between the time it took over the employment of the men and the date of the accident. Had that step been taken, it might have been reasonable to expect that the penetration, and the potential risk it created, might have been identified. By contrast, Dalma and Bovis were in control of the site on a daily basis and must between them bear the bulk of the responsibility. In the circumstances an apportionment of 20% liability to the labour hire company is appropriate." 81The question of whether an employer's non-delegable duty is discharged where an employee is working on a third party's premises depends on a number of factors. As was stated in Bourke v Victorian WorkCover Authority [1998] VSCA 24 at [42 - 43] per Winneke P (Brooking and Buchanan JJA agreeing): "True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, that occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he has breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v. Austin Lifts Ltd. [1959] 1 WLR 100: 'Notwithstanding what was said in Taylor v. Sims & Sims (167 LT 414), it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work ...; and if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances.' (See also Wilson v. Tyneside Window Cleaning Co. [1958] 2 QB at 121-2 per Pearce, LJ; Sinclair v. William Arnott Pty. Ltd. (1963) 64 SR (NSW) 88 at 9102 per Walsh, J.) One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors." 82In Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74, the remoteness of the third party's premises was a factor in determining the employer's liability. The plaintiff, an employee of a labour hire company, was injured after falling from his bunk in the sleeping quarters of a Bass Strait oil platform operated by Esso. The trial judge apportioned 80 per cent liability to Esso and 20 per cent to the employer, which was upheld by the Victorian Court of Appeal. Winneke P (Tadgell and Chernov JJA agreeing) held at [21] that the trial judge had not erred in concluding that Esso was primarily responsible for the plaintiff's injury. Whilst the employer had the right to inspect the premises and make recommendations if it believed the safety of the worker was at risk, Esso was the occupier and person in control of the premises where the injury occurred and the premises were not easily accessible to the employer day to day for inspection or observation of defects: "[Whilst] ...both the occupier and the employer were in breach of their respective duties to the worker, it is equally clear that they point unerringly to the conclusion to which his Honour came; that the person who had the immediate control of the rig, and the facilities within it, had by far the greater opportunity to rectify the defects which existed." 83The fact that an injury to a worker occurred on premises not controlled by the employer was an important factor in Estate of the Late M T Mutton by its Executors & R W Mutton t/as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340. In that case, a truck driver employed by Howard Haulage to deliver grain, fertilizer and gravel up and down the eastern half of Australia was seriously injured when offloading grain on a farm owned by Mutton Bros. Ipp JA (with whom Hodgson JA agreed) stated that: "146 Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer's own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, working conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work. 147 In the present case, it was not reasonably possible for the respondent to have devised and implemented a safe system of work dealing with the specific circumstances involving the appellant's auger and the particular circumstances that obtained on the appellant's farm. The respondent was not aware of those circumstances and, in my view, considerations of reasonableness did not require it to be aware of them. Additionally, the respondent had no control over the auger and was not in a position to take appropriate measures to guard it. That is not to say, of course, that the respondent did not owe Mr Kelman a duty of care in the general terms expressed in Czatyrko v Edith Cowan University [[2005] HCA 14] at 842 to 843. The means by which the respondent was required to discharge that duty, however, must be determined by the particular circumstances." 84In Howard Haulage, Spigelman CJ in a dissenting judgment, agreed that it was important that the accident did not occur on a property controlled by the employer, observing at [8] that: "It is of significance that the work in this case, unlike the Edith Cowan University case, was conducted on premises and, specifically, with equipment, provided by a third party. This is a relevant, but not determinative, consideration on the issue of breach." 85On the question of apportionment of blame between joint tort-feasors for the injury of a worker, Winneke P in Esso said at [21]: "The apportionment of blame between the two fell to be assessed by making a comparison of the significance of the respective departures from the relevant standards of care required. Such a comparison involves matters of relative emphasis, proportion and value judgment upon which reasonable minds might differ and which does not readily admit of articulation. As has been repeatedly said in this connection: 'A finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.' (British Fame (Owners) v Macgregor (Owners) [1943] A.C. 197 at 201 per Lord Wright.)" 86Wagga Mini Mix had not done an assessment of the work site that the plaintiff and his team were working on. In TNT Australia Pty Ltd v Christie, the extent of the employer's duty was emphasised, particularly where it chose to delegate its responsibility to the company to whom it hired its employees. In that case, the employer was making weekly visits to the site where the employee was working and it was found to have a 25 per cent responsibility. Wagga Mini Mix contracted its workers to work at multiple sites along the Sydney to Melbourne rail corridor. 87As was discussed in Esso, the remoteness and size of the work site is a factor in consideration of how easily accessible it was for Wagga Mini Mix to make regular inspections or identification of hazards. However, it should be noted that the distance between the employer's premises in Wagga and the work site at Harden where the accident occurred, and the distance between the plaintiff's home in Tumut and the work site are both approximately 110 kilometres. The plaintiff was making the approximately 220 kilometres round trip daily and it is not unreasonable to expect that his employer would have made regular inspections of the sites to which it was sending its employees to work. 88While O'Donnell Griffin had day-to-day control of the site and supervision of the plaintiff, Wagga Mini Mix did not conduct any inspection or assessment of the system of work or work site where it was sending its employees or send a spotter/co-employee on the day of the accident. Accordingly, I apportion liability to Wagga Mini Mix of 25 per cent and 75 per cent to O'Donnell Griffin. After the accident 89Immediately after the accident, it was the plaintiff's back which was the most painful. He continued to have pain in his shoulders and back. When the pain in his back and shoulders did not resolve the following day he attended the local hospital and was informed that he should make an appointment with his doctor. On 28 February 2007, the plaintiff attended Dr Abdul Usham, his General Practitioner. This was the first appointment he could obtain. Dr Usham prescribed Panadeine Forte, Tramal and Valium, and referred him for an x-ray of his lumbar spine, which the plaintiff underwent on that day. 90On 7 March 2007, the plaintiff attended Dr Usham again concerning his ongoing back pain which was becoming worse. Dr Usham recommended a CT of the lumbar spine which he underwent on 13 March 2007. 91On 15 March 2007, the plaintiff attended Dr Usham due to pain in his right side around the hip and pelvis. Dr Usham referred him to Ms Arragon, physiotherapist, and prescribed Mobic and Nexium. 92On 3 April 2007, he returned to Dr Usham due to increasing back pain in his back which was radiating down his right leg. He was also aware that his left knee, which had been painful until then, had become swollen. Dr Usham referred him to Dr Kerin Fielding, an orthopaedic surgeon in Wagga Wagga. 93On 18 April 2007, the plaintiff first attended Dr Angela Hatfield who was a locum for Dr Fielding. Dr Hatfield recommended an MRI of the plaintiff's left shoulder, left knee and thoracic spine as well as continuing physiotherapy. For some unknown reason, the wrong shoulder (the right) was initially x-rayed. 94On 6 June 2007, the plaintiff underwent the MRI examination recommended by Dr Hatfield. He continued to attend Dr Usham for pain relief medication on a monthly basis. 95During the time between the accident and 8 July 2007, the plaintiff was living alone for approximately 18 weeks. His mother and sister did some shopping and his brother-in-law, who was living in the back shed, took out the garbage. The plaintiff was unable to do the housework. 96On or about 8 July 2007, the plaintiff's daughters Toni and Deni, then 11 and 13 years respectively, came to live with him as their mother had moved to Canberra. He had sole custody of the girls at that time. He relied on the girls to assist with cooking meals, washing dishes, washing clothes and hanging clothes out and bringing clothes in and housework. John Pringle, the girls' maternal grandfather took the girls to and from school each day. 97On 13 August 2007, the plaintiff attended Dr Fielding and underwent an examination of his left knee, back and left shoulder. Dr Fielding recommended a left knee arthroscopy and left rotator cuff repair and acromioplasty. Dr Fielding also noted an L4/5 and L5/S1 nerve root impingement related to a back injury. The procedures recommended by Dr Fielding took place on 15 August 2007 and he was in hospital for two days. His left knee improved for a week or so. His shoulder improved for about three weeks but now it "pops out" all the time (T43.50). 98On 19 September 2007, he attended Dr Fielding for review following the surgery. On 31 October 2007, he attended Dr Fielding who recommended CT guided facet joint injections for the ongoing pain in his back and the pain which was radiating down both of his legs. He had these injections but did not experience any relief from the pain. 99On 31 October 2007, approximately eight weeks after his surgery, the plaintiff attended Leah Dodsworth, psychologist, at Wendy J Dignand & Associates for counselling. He was finding it increasingly difficult to cope with the constant pain he was experiencing. The plaintiff had always worked and not being able to work was very difficult for him. He felt frustrated at his situation and being unable to function physically as well as the fact he was not recovering. The plaintiff saw her each week, then each fortnight and is still seeing her on a monthly basis. He finds these consultations helpful. It helps him with handling the pain (T45.5-24). 100In late 2007, the plaintiff saw Dr Todhunter in Albury at a pain clinic and was prescribed Lyrica. This drug did not agree with him. It was recommended that he attend the pain management clinic for three weeks as an inpatient. This came to nothing. If he had the opportunity he would like to attend the pain management clinic for that three weeks (T45.49). 101In 2008, the plaintiff's condition got worse. He continued to rely on help from his sister and children. He is a neat and tidy housekeeper. He felt obliged to pick up things off the floor and that would hurt his back. He had to rely on pre-prepared food from Woolworths, although he could sit down and peel vegetables. The girls and Patricia Blundell (Trish) did the cleaning. Trish was the plaintiff's partner for some time. This is no longer the case. The plaintiff is currently living alone. 102I accept that as a result of the accident, the plaintiff experiences constant pain in both shoulders, his lower back and left knee. He cannot perform any activities where he has to reach above shoulder height, and it is also difficult to do any work where his arms have to remain outstretched from his body. He is unable to kneel or squat, and his pain increases if he bends, stoops or lifts anything. The pain in his neck and shoulders is causing him to suffer headaches. The plaintiff has not been able to sleep well since the accident. Medical Evidence 103There is a difference of opinion between the plaintiff's and defendant's experts as to the extent to which the current orthopaedic disabilities are caused by the accident. There is little disagreement between the psychiatrists in so far as the plaintiff's psychiatric injuries are concerned. Physician's evidence 104The plaintiff's expert, Dr Geoffrey Miller, a specialist surgeon, examined the plaintiff on 30 April 2008 and provided a report on 13 May 2008 (Ex B, pp 80-84). He examined the plaintiff again on 2 May 2012 and provided a report on 4 May 2012 (Ex B, pp 85-88). 105The defendants' expert, Dr Seamus Dalton, a rehabilitation physician, examined the plaintiff on 16 May 2011 and provided a report on 25 September 2011 (Ex 1D/2, pp 1-12). After reviewing Dr Miller's report of 4 May 2012, he reported on 24 August 2012 that his opinion was unchanged (Ex 1 D/2, pp 13-14). 106A joint experts conference was held between Drs Miller and Dalton on 28 March 2013 and a joint report produced (Ex 1D/2, Physicians' conclave report, pp 143-147). Both doctors gave evidence at the hearing, Dr Dalton in person and Dr Miller via teleconference. Both physicians agreed that the plaintiff suffers from pre-existing degenerative conditions affecting his cervical and lumbar spine, left shoulder and left knee. The issue is when they would have become symptomatic. 107The conditions that have been identified include degenerative disc disease and facet joint osteoarthritis affecting the plaintiff's cervical and lumbar spine which has been confirmed with CT and MRI scans. The degenerative condition affecting the left shoulder is a tear of the rotator cuff along with osteoarthritis and degeneration of both joints of the shoulder. The degenerative condition affecting the plaintiff's left knee includes osteoarthritis of the knee along with degenerative change in both menisci and a degenerate tear in the lateral meniscus. The basis for diagnosis is the fact that these pathologies are clearly longstanding and degenerative in nature (Report of Dr Dalton, 25 September 2011, Ex 1D/2, pp 1-12). 108Dr Miller has based his opinion on the history, clinical examination and results of investigations in reaching his conclusions regarding medical evidence of injury to the plaintiff arising out of the incident. Dr Dalton based his opinion on the history provided by the plaintiff, the contemporaneous medical records of his treating doctors and his assessment of the clinical findings in examination and the radiological investigations which have been undertaken (Ex 1D/2, p 143). 109Dr Miller considered that as a result of the accident, the plaintiff suffered aggravations of pre-existing asymptomatic degenerative conditions affecting his left shoulder, right shoulder, lumbar spine and left knee. He considered that these were unlikely to manifest themselves in some level of disability at some point in time without a prior history of trauma or incident. The majority of patients with degenerative changes would require a significant event to become symptomatic (Ex 1D/2, p 146; T125.37). 110Dr Dalton disagreed and considered that it is likely that the plaintiff suffered only aggravation of a pre-existing degenerative lumbar spine condition as a result of the accident but that the plaintiff did not sustain injuries to his left shoulder, right shoulder and left knee at that time (Ex 1D/2, p 143). He was of the view that the plaintiff had not had a significant event in relation to his shoulder or knee due to the accident (T125.45-50). 111Dr Miller strongly disagreed with Dr Dalton that the accident wasn't a significant event to the plaintiff's shoulder and knee (T128.7-8). He also disagreed that the existence of a rotator cuff injury meant that it was inevitable that due to the plaintiff's physical work, he would have ended up with shoulder problems without a significant event occurring (T136.19-22). 112Drs Dalton and Miller agreed that such degenerative conditions can be rendered symptomatic at any time following minor or major trauma but also considered that often these degenerative conditions can become symptomatic at some point in time without any history of antecedent trauma (Ex 1D/2, p 146). 113Both physicians agreed that the chances of degenerative changes becoming symptomatic are higher if someone is engaged in heavy manual labour and has an active lifestyle but may have remained asymptomatic or have given rise to little disability which may not have impacted on the plaintiff's ability to continue with his employment but for the accident (T124.36-43). The extent to which these conditions may or may not have affected the plaintiff's ability to continue in his employment would depend entirely on the extent and severity of symptoms manifesting at that time and whether or not such symptoms were amenable to treatment (Ex 1D/2, p 146). 114Neither physician could say when or if such conditions would have manifested themselves in a disability, and to what extent, if the accident had not occurred. They agreed that the fact that the plaintiff had been doing manual work since he was a young man, without any symptoms, was a positive prognostic sign of the plaintiff being able to get through the rest of his life without symptoms of the degenerative changes identified unless he had a significant injury (T139.28-37). 115There was agreement between the doctors that there is no way of assessing if and when each condition would have affected the plaintiff's capacity to perform domestic activities but for the accident. Dr Dalton was of the opinion however, that the extent of the rotator cuff pathology affecting the plaintiff's left shoulder was such that it was likely that it would have become symptomatic at some point in time in the future (Ex 1D/2, p 147). 116I accept that up until the accident, the degenerative changes identified to the plaintiff's cervical and lumbar spine, left shoulder and left knee were asymptomatic. I also accept that the plaintiff's chances of degenerative changes becoming symptomatic are higher as he was engaged in heavy manual labour and had an active lifestyle but they may have remained asymptomatic or have given rise to little disability which may not have impacted on his ability to continue with his employment but for the accident. However, neither physician was able to say on the balance of probabilities as to when they might have manifested themselves and to what extent had the accident not occurred and to reflect this uncertainty, I have decided that the proper approach is to increase vicissitudes from 15 to 20 per cent. Psychiatric evidence 117So far as the plaintiff's psychiatric and psychological condition is concerned, a joint witness conference was held between psychiatrists Drs Robert Gertler and Phillip Brown on 28 March 2013 and a report produced (Ex 1D/2, pp 148-151). They were in agreement that the plaintiff was suffering from an Adjustment Disorder and that he also has a Chronic Pain Disorder Associated with Psychological Factors. These are both recognised psychiatric illnesses which would not have occurred but for his having developed ongoing pain after the incident on 25 February 2007. They say that the plaintiff's illnesses were unlikely to have remitted since they both assessed him. 118Dr Brown was of the opinion that the plaintiff's Adjustment Disorder was a mild degree when he assessed him on 4 March 2013, and such was indicated by his having coped over time with a number of non work injury related stresses, primarily the ongoing problem of the behaviour of his elder daughter and wife, as well as with his physical symptoms. Dr Gertler said he had examined him on 25 September 2012, and so some five months before Dr Brown, and its degree then was more severe, but the symptoms of such are well known to fluctuate with the stresses of the time. 119Drs Gertler and Brown were in agreement that his treatment by his psychologist, Ms L Dodsworth had been supportive and had helped him to deal with the stresses from his physical problems, their limitations and consequences and the non work injury related stresses in his life. It was considered that he had shown quite some fortitude in having dealt with the spectrum of these stresses. 120They also agreed that the plaintiff's prognosis was guarded. However, there may be some improvement in his psychological conditions after his legal case was settled and he was able to address his financial problem. However, he would need to continue to cope with his not being able to return to physically active employment and with whatever organic pain and limitations he comes to have from his physical conditions. I accept these opinions of Drs Gertler and Brown. Damages 121A threshold is imposed by s 151H(1) that must be satisfied before damages can be awarded, namely that the injured worker has a degree of permanent impairment of at least 15 per cent. The method of assessment is specified in that section and Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. There is no dispute that the threshold has been satisfied in this case. Different heads of damages for different defendants 122The heads of damages that can be awarded against Wagga Mini Mix are limited. Damages that can be awarded against the employer are only for past loss of earnings and future economic loss due to the deprivation or impairment of earning capacity (s 151G) and any amounts of weekly payments of workers compensation already paid are to be deducted from the amount of damages awarded (s 151A(1)(b)). 123Any such award is subject to the limitation that amounts that would have, but for the accident, exceeded the maximum amount payable provided for in s 34 are to be disregarded (s 151I). The current weekly maximum compensation amount is $1,903.70. The plaintiff's claim does not exceed this amount. Damages for past loss of earnings and future economic loss are also to be awarded against O'Donnell Griffin. 124The amount awarded for future economic loss is to be determined by the adoption of a discount rate of 5 per cent (s 151J). 125In determining the amount for future economic loss the Court is required to disregard any earning capacity of the plaintiff after he reaches "pension age" being the age of 67 (see s 151IA and s 23(5A) of the Social Security Act 1991 (Cth)). (1) Non economic loss - O'Donnell Griffin 126It is not in dispute that the severity of the plaintiff's non-economic loss is at least 15 per cent of a most extreme case: s 16 of the Civil Liability Act. The current maximum amount is $535,000 and the plaintiff submits that the appropriate amount, having regard to the severe impact physically and psychologically upon him of his injuries is somewhere between 55 per cent and 60 per cent of a most extreme case. Therefore, the plaintiff submits that the non-economic loss should be 57 per cent of a most extreme case, being $305,000. O'Donnell Griffin submits an amount of $139,000 for non-economic loss which is 25 per cent of a most extreme case. 127Prior to the accident, the plaintiff enjoyed an active lifestyle before the accident based around outdoor activities. He enjoyed a social round of golf regularly and riding his motorbike. During the Christmas break, he would often take a bike trip with some mates along the Great Ocean Rd, through Melbourne and back up the South Coast to Nowra. He liked to go fishing and camping (T13). He also worked long hours, often between 60 and 80 hours per week (T14.24-26). He is no longer able to take part in the outdoor activities he once enjoyed because of his injuries. 128The plaintiff enjoyed working and was skilled, well motivated and an excellent worker but he has not been able to work since the accident due to his injuries. He would have liked to have continued being active and working. 129Due to the accident the plaintiff suffered serious physical injuries to his back, shoulders and neck. His left shoulder is worse than his right. On 15 August 2007, the plaintiff underwent surgery, namely a left knee arthroscopy and left rotator cuff repair and acromioplasty. 130In August 2007, after the surgery by Dr Fielding, the plaintiff had some improvement with his knee for a little while and then it started to get worse. His shoulder ended up popping out again and continues to pop out "all the time" (T43). The pain in his left knee restricts his movements such as squatting and kneeling. 131The plaintiff gave evidence that he had no problem with these areas in his body before the accident, although he did have problems with the right knee. These problems appear not to have caused any issues. There is no suggestion that he sought treatment in respect of the right knee injury or had mentioned it to any doctor in the years prior to this accident. 132Since the accident the plaintiff is suffering from Adjustment Disorder and has Chronic Pain Disorder Associated with Psychological Factors, which are a direct result of his ongoing pain after the incident on 25 February 2007. He still suffers pain. The plaintiff has to attend his psychologist Leah Dodsworth on a regular basis to assist him with dealing with the pain he experiences. In 2008, his pain became worse. 133Currently, he experiences constant pain in the back of his neck. He suffers from regular headaches. Due to pain, he cannot sleep properly. While he is independent with his personal care, he is unable to carry out housework tasks other than in 15 minute intervals. He cannot vacuum or manage the outside maintenance. He can drive a car but has to take rest stops. He takes medication. 134The plaintiff tries to keep involved in community affairs. He has a dog called Sarg, a Staffordshire terrier. He takes his dog up to the craft facility two or three times a week. He enjoys talking to the residents and the residents enjoy feeding Sarg. He also visits his mother a few times a week, daily if his mother is not well. In September 2012, his mother had heart surgery. He can wash up for her and tries to help out as best he can. On Thursdays, he and his dog go to the senior citizens club at Tumut. He would love to return to being a carer. However, due to his physical limitations, he accepts that he will be unable to do this type of work. 135Taking the above into account, I assess the plaintiff non economic loss as 52 per cent of the most extreme case. This equates to the sum of $278,200. (2) Past out-of-pocket expenses 136The parties agree that the past out-of-pocket expenses are $103,667. These have been paid by the insurer of O'Donnell Griffin. (3) Past economic loss 137At the time of the accident the plaintiff was earning $1,062 net per week. From 1 July 2005 to 30 June 2006, the plaintiff earned $1,271 net per week. An average of the two amounts is $1,166 net per week. His employer provided him with a company vehicle that he was entitled to use for personal use. 138The plaintiff claims the costs of the loss of the use of the motor vehicle that was supplied by his employer. The plaintiff tendered a search of used car prices - RedBook.com.au (Ex H) that stated the value of a 2005 Nissan Patrol ST CVII when new was between $50,180 and $51,890. The plaintiff says the vehicle he was supplied with was a 2004 model. The plaintiff takes the sum of $51,035 and calculates the loss as follows, $51,035 x 0.235 + $2,750 + $14,743 per annum = $283 per week. 139His employer also provided him with a mobile phone and paid his mobile phone bill. With the inclusion of the cost of a car the total remuneration claimed is $1,449 per week. The plaintiff therefore seeks the sum of $505,701.00 for past economic loss. The plaintiff claims that he has been unable to return to any form of employment since the date of the accident, due to ongoing pain and the physical restrictions associated with his injuries. 140The defendants submitted that the sum of $157,642.92 which is based on average net weekly earnings of $997.74 discounted by 50 per cent on the basis of the plaintiff's capacity for light manual employment or a larger than usual vicissitudes given the causal issue in relation to the injuries sustained. Counsel for Wagga Mini Mix disputed that the provision of a work vehicle formed part of a "salary package" and the defendants have not included any allowance for a car in their figures. 141It is my view that the plaintiff has been unable to work since the date of the accident to the date of this judgment. I prefer the plaintiff's calculations. The defendant bases its assessment upon average weekly net earnings. The plaintiff has produced actual wage records for his net earnings for the financial years 2005/2006 and 2006/2007 (Ex G). The plaintiff was a motivated employee with an excellent work record. He was a skilled worker with a number of qualifications for operating heavy machinery. Although he was not engaged in a particularly skilled task at the time of the accident, he had been employed to lay fibre optic cables which is a very specialized field requiring skills and experience. He gave evidence that he and his colleagues from Wagga Mini Mix were contracted to work on the more difficult sites and were digging a trench for the laying of cable at a rate of about 900 metres per day whereas other workers were only achieving 250 metres per day (T20.5). 142The type of skills that the plaintiff possesses continues to be in high demand and he would have had no difficulty remaining in full time employment. I accept that the plaintiff also had the benefit of a vehicle for his own use, even though he chose not to use it other than for work purposes. He could have used it in a personal capacity if he wished to. Because the plaintiff has to drive to different destinations for work, it is my view that it is more likely than not his past future employment package would have included a work vehicle. Hence, I allow the amount claimed by the plaintiff of $505,701 as at 4 April 2013 but this amount needs to be updated and these calculations are to be made by the parties. (4) Future economic loss 143The plaintiff seeks the sum of $713,741.18 based on the plaintiff working until the age of 67 and applying 3 per cent CPI on his base wage of $1,166 (that is, not including the car). On this basis, the plaintiff's average earnings would have increased from $1,166 in 2007 to $1,475 in 2013. The future economic loss calculated on the weekly amount of $1,449 multiplied with a multiplier of 579.5 less 15 per cent for vicissitudes making a total amount of $713,741.18. 144The defendants submitted that future economic loss should be assessed at $877.47 x 0.85 x 579.5 discounted by 50 per cent based on the plaintiff's capacity of fortnightly manual employment. This equates to the sum of $216,109.89. 145Drs Miller and Dalton agreed that the plaintiff is not fit for his pre-injury employment. They also agreed that the plaintiff has limited, if any, prospects of finding work on the open labour market. Both were willing to accept that with appropriate vocational rehabilitation there may be some potential for the plaintiff to work in a limited sedentary capacity. However, they both agreed, because of physical, psychological and psychosocial barriers, that vocational rehabilitation in an attempt to return this man to work is unlikely to be successful until he has undergone additional pain management. The conditions affecting his back, left shoulder and left knee greatly restrict his ability to undertake manual work (Ex 1D/2, p 144). 146Victoria Gracey, an occupational therapist (Ex 1D/2, report of 10 December 2011, pp 41-80) stated that the plaintiff would not be able to return to work as a fibre optics specialist. This was the result of multiple conditions, not just those solely related to his injuries sustained in the accident. She was of the view that the plaintiff would have been capable of returning to work in a semi-sedentary position on a full time basis. She agreed with Dr Dalton that the plaintiff requires referral to a pain management program to facilitate a return to work and would require some vocational assistance. 147There is no doubt that the plaintiff would return to work if he could. He has an excellent work history and has demonstrated by the number of qualifications he has obtained during his career that he has been willing to increase his skills when the opportunity arose. He also trained as a carer in the early 2000s and worked for a time for a disabled services organisation in Tumut, working with high risk clients such as those with dementia. He said in evidence he would like to work as a carer again but given the physical demands of such a role, it is extremely unlikely that he would be able to do this work. 148In Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 the majority said, at [23]: "... the inquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal." 149The plaintiff was skilled at laying fibre optic cable, a skill that is in great demand and will be in the foreseeable future, given the rollout in Australia of a national broadband network utilising fibre optic cable. 150The defendants have submitted that on the basis of Dr Dalton's opinion that the accident caused an aggravation to the degenerative condition of the plaintiff's lumbar spine, but that any aggravation by the accident to his knee or shoulder was only mild, the discount for vicissitudes should be 50 per cent. His shoulder injury was rendered symptomatic by the accident but was "a time bomb ... waiting to happen" (T127.45). 151Both physicians were of the opinion that even with pain management therapy, it would be very unlikely that the plaintiff would have much of an increase in his ability to work (T130.23-34). They also agreed that with appropriate vocational rehabilitation, there might be some potential for the plaintiff to work but only in a limited sedentary capacity (Ex 1D/2, p 144). 152Mark Ravagani, psychologist, conducted a vocational assessment. He agrees that the plaintiff is physically unsuitable for the work he did prior to the accident. So far as light manual jobs are concerned, Mr Ravagani says that although he does not believe that the plaintiff is unemployable, he faces significant barriers to securing durable employment. Mr Ravagani says that there is a major difference between being able to do a job, or part of a job due to functional restrictions, and being able to find or keep a job. Given the duration of the plaintiff's disability and residential location, his job prospects must be considered limited and highly dependent upon his ultimate level of function. 153However, when one looks to the local labour market conditions for the plaintiff the outlook is not good. The plaintiff lives in Adelong, a small town of 800 people approximately 20 kilometres from Tumut and 80 kilometres from Wagga Wagga. At the time of Mr Ragagani's report, according to the Australian Government's Job Search database there was only one position currently available in Adelong for a part time mail delivery person. Looking further a field there were 11 jobs listed for Tumut, namely, Aboriginal men's support worker, casual cleaner, storeman with good computer skills, casual nail technician, casual apiarist, five casual trainers/assessors and an electrician. None of these jobs would be suitable for the plaintiff due to the physical demands or specific training or experience required. 154The plaintiff will be unable to carry out any employment requiring physical labour. He is not capable of working as a carer as this would involve lifting and other physical tasks. While he may be able to learn to use a computer, it is my view that it is unlikely that the plaintiff will gain paid employment in the future. 155I have already increased vicissitudes from 15 per cent to 20 per cent on the basis of the uncertainty as to how much the plaintiff's existing degenerative conditions of his shoulder, left knee and lumbar spine may effect his capacity to work in the future. 156Also in accordance with Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638, I make an allowance for the possibility that the plaintiff may obtain some future sedentary employment, on a casual basis. I assess his residual earning capacity at $20 net per week. Otherwise, I accept the plaintiff's submission as to future economic loss as reasonable. The parties are to calculate this amount for future economic loss as at the date of the judgment. (5) Past superannuation 157The plaintiff seeks 11 per cent of $505,701 net, which equates to the sum of $55,627.11 as at 4 April 2013. There is no dispute that 11 per cent of the net amount is correct. 158The parties are to calculate the amount up to the date of the judgment. (6) Future Superannuation 159The plaintiff seeks 11 per cent of $713,746.18 net, which equates to $78,512.98. The parties are to calculate the amount up to the date of judgment. (7) Past attendant care - O'Donnell Griffin 160Past care that is provided on a voluntary basis is governed by ss 15 and 15A of the Civil Liability Act. 161The plaintiff seeks an average of 8 hours per week at $22 per hour. At the time of the plaintiff's accident the hourly rate was limited to $22.97 per hour and at the present time at $26.36 per hour. An average between the two is approximately $24 per hour. The plaintiff submitted that the past care appears to average at about 8 hours per week at a rate of $24 per hour. The plaintiff's calculation is 8 x 22 x 349, the total being $67,000. The plaintiff submitted that there is clear evidence that around the time of the operations he needed more care, but he is prepared to average the care to take this into account. 162O'Donnell Griffin allows the sum of $16,768. This amount is calculated as follows, 26 weeks at 6 hours per week at a rate of $25 per hour; 45 weeks at 30 minutes per week at a rate of $25 per hour; 59 weeks at 1 hour 15 minutes per week at a rate of $25 per hour; 186 weeks at 2 hours 15 minutes per week at a rate of $25 per hour. 163The plaintiff relied upon the report of Glynnis Flanagan dated 2 July 2010. O'Donnell Griffin relied upon the report of Victoria Gracey dated 10 November 2011. Glynnis Flanagan and Victoria Gracey provided a joint report dated 15 March 2013. 164Between 25 February 2007 and July 2008, the plaintiff relied on his mother and sister who live in Tumut to assist him with housework and looking after his daughters, Toni, and when she was living with him, Deni. This included house cleaning, lawn mowing, shopping and washing. He relied on his daughters to assist him with cooking, cleaning, washing clothes and washing up. His father-in-law assisted the plaintiff by taking the girls to school and picking them up, as well as providing some assistance around the house. 165In or about July 2008 a friend, Trish, moved in to assist him with looking after the house and the girls. Her son also lived with them although he did not provide any assistance with any household tasks. 166In or about March 2009, Deni moved out to live with her grandfather and his younger daughter Toni remained living with him. Toni took over responsibility for those tasks that Deni had helped with including general house cleaning, cleaning bathrooms and washing up. She estimates these tasks took approximately six hours per week. 167On or about 23 April 2010, the house the plaintiff was renting was sold. The plaintiff, Trish and family moved into another rental property in Adelong. The plaintiff found it very difficult to maintain that property, and relied on Trish and Toni to do the heavier work including chopping and carting firewood. Trish also assisted him with shopping, cleaning, cooking and washing. Toni and Trish assisted him approximately 6.5 hours per week in attending to those duties. 168The plaintiff's daughter Toni gave evidence and was cross examined and provided a statement (Ex J). She was a truthful witness and I accept her evidence. Toni says that when her father started to do housework he would probably last 10 to 15 minutes before having to have a break (T109.13). 169In or about October 2010, Trish and her son moved out. At that time Toni assumed responsibility for assistance in the house. Toni attended to the mowing and cleaning up outside and assisted him with jobs inside. She estimates that she assisted the plaintiff with care of approximately seven hours per week. 170Occupational therapist Glynis Flanagan, in her report of 2 July 2010, estimated the plaintiff, between 25 February 2007 and 30 April 2010 required an average of 7.6 hours per week past care (Ex B, pp 92-93). This is slightly more than the estimate provided by Toni Carr. 171I allow an amount for an average of 7 hours per week past care at $24 per hour as being reasonable. The parties are to calculate the amount for past care up to the date of the judgment. (8) Future Care - O'Donnell Griffin 172The plaintiff seeks the sum of $213,120 for future care at $45 per hour 7.5 hours per week. The hourly cost of care includes an allowance for higher hourly rates on weekends and public holidays. The plaintiff lives alone and since January 2013 there is no-one who can provide voluntary domestic care for him. Hence, future domestic care is to be calculated at commercial rates. O'Donnell Griffin submitted that the sum of $60,830 should be allowed based on 2 hours 45 minutes per week at the lower rate of $25 per hour. 173In January 2013 Toni, who had resided with him and provided him with substantial domestic assistance, moved to Canberra to live with her mother. As a consequence of that, the plaintiff does not have access to any person to provide him with assistance on a gratuitous basis. He is unable to afford to pay for paid care, as his only source of income is weekly compensation benefits. The plaintiff has been able to get by but doing any of the heavier housework is beyond him. His back aches if he has to do household chores and although it takes longer, he gets it done. As previously stated, he can manage to carry out household duties for about 10 to 15 minutes before he has to take a break. The plaintiff has resumed driving and can manage short trips. For longer trips, he has to take rest breaks. 174Drs Dalton and Miller agreed that some requirement for domestic assistance exists but disagreed with respect to the amount of assistance that is reasonably required on the basis of his current condition (Ex 1D/2, p 144). 175Dr Dalton was of the opinion that the plaintiff does not require assistance with cooking, cleaning, shopping or light household duties but that he would require two hours per week assistance for heavy household duties. He would also require one hour per week assistance per fortnight for home maintenance such as cleaning gutters and overhead tasks as the condition of his left shoulder is such that he cannot perform overhead tasks with that arm (Ex 1D/2, 25 September 2012, p 10). 176Dr Miller's view was that the plaintiff will have to modify his activities of daily living around his impairment indefinitely and that he would benefit from professional help with the maintenance of his home and garden (Ex B, Report 13 May 2008, p 83). 177So far as future domestic assistance and attendant care is concerned, the occupational therapists agree on provision of the following, one hour per week for firewood, 0.84 hours per week for lawn mowing, 0.15 hours per week for clearing gutters, 0.25 hours per week for car maintenance, bi-annual car services, costs of labour only, 0.75 hours per week for swimming pool maintenance, required only while the plaintiff rents a property with a swimming pool. This equates to about 4 hours of care per week. The labour costs of a car service are not given. 178The tasks they disagree upon and their reasons are as follows. Victoria Gracey allows 0.5 hours per week for cleaning. Glynnis Flanagan allows 3 hours per week, with a minimum service fee of 2 hours. Victoria Gracey allows nothing for shopping and Glynnis Flanagan allows 0.25 hours per week. For general maintenance, required only if the plaintiff lives in his own home, Victoria Gracey allowed 0.5 hours per week and Glynis Flanagan allowed 1 hour per week. They also noted that the amount of time required for maintenance will depend on the type, size and age of the home the plaintiff owns. Where the occupational therapists disagree, it is my view that 3.5 hours for these tasks is reasonable. 179The plaintiff can do his own grocery shopping. While the plaintiff can perform light household duties, in 15 minute intervals, he cannot vacuum or do other heavier tasks. He can attend to his laundry. I also take into account that he has always been tidy and houseproud and expects a high standard of cleanliness. In total I allow 7.5 hour per week for future attendant care at commercial rates as being necessary and reasonable. 180I allow 7.5 hours per week of future attendant care at $45 per hour. The parties are to calculate this amount. (10) Future costs and medical expenses - O'Donnell Griffin 181The plaintiff seeks $60,000 for future costs and medical expenses given the requirements of ongoing consultations with the psychologist together with medication. O'Donnell Griffin submitted that an allowance of $15,000 should be made. 182The plaintiff relied upon the reports of Glynis Flanagan dated 2 July 2010, Dr Geoffrey Miller dated 13 May 2008 and 4 May 2012 and Dr Robert Gertler dated 18 October 2012. O'Donnell Griffin relied upon the reports of Dr Seamus Dalton dated 25 September 2011 and 24 August 2012 and the report of Victoria Gracey dated 10 December 2011. Psychological counselling 183The plaintiff currently consults a psychologist approximately once a month which he finds very beneficial. The cost of a standard consultation is approximately $166. This equates to a weekly sum of $38.30. Drs Brown and Gertler say that it is not known how long the plaintiff might need to continue to attend a psychologist. They are of the view that some improvement could be expected of his psychological conditions after his legal matter was settled and he was able to address his financial difficulties. However, they say that he would still need to continue to cope with his inability to return to physically active employment and whatever organic pain and limitations he comes to have from his physical condition. While the plaintiff does not require psychotropic medications or referral to a psychiatrist, he should have a course of 10 to 12 sessions of Cognitive Behavioural Therapy by a psychologist aimed at assisting him to better adapt to whatever his ongoing organic conditions come to be. The cost of this would be about $230 for an hour session (total cost: $ 2,300 to $2,660) (Ex 1D/2, pp 149, 150). The plaintiff finds psychological counselling helpful. However, over time it is my view, he will need to consult a psychologist less frequently. To allow a reasonable amount for both the cognitive behavioural therapy and his current therapy I allow a weekly rate of $17.30 for psychological counselling as being reasonable. Medication 184He also takes 8 tablets per day of Panadeine and Codeine tablets which are available over the counter. He also continues to take Mobic that requires a prescription. It should be noted that the plaintiff was originally taking a higher strength pain killing medication but has, through his own efforts, reduced his medication (T49.47-50). This amount of these medications is not particularised but an allowance should be made once the costs of these prescriptions are obtained. In order to obtain a prescription for Mobic and to take into account the difficulties that may arise from his injuries, it is reasonable to make an allowance for the plaintiff to consult his general practitioner every three months. 185Drs Brown and Gertler, psychiatrists, are of the view that the main treatment the plaintiff requires is attendance at a Pain Management Program as his pain has a significant psychological overlay; and that this should be conducted after settlement of his case to maximise the chance of it bringing benefit. The plaintiff wants to take up this option. 186Drs Dalton and Miller agreed that the plaintiff requires further treatment including pain management counselling, a review of his medication and a structured exercise program. They agreed with the recommendations for treatment which Dr Dalton has provided, that a structured exercise program would improve his mobility, modify his antalgic posture and encourage normal mobility and relaxation generally. The plaintiff would benefit from exercises to improve flexibility, core stability and postural endurance but an exercise program is unlikely to be effective until the plaintiff has learnt some additional self-pain management strategies and relaxation techniques. (Ex 1D/2, p 145; Report 25 September 2012, p 9.) 187The psychiatrists in their joint report state that the cost of this should be advised by the particular Pain Management Program, and will depend on whether it is conducted on an inpatient or outpatient basis. No costing for this service has been provided. The plaintiff is to provide a report as to the costing and I will make an allowance for the Pain Management Program. Domestic Aids 188The occupational therapists, Ms Flanagan and Ms Grace agreed that the plaintiff would need some equipment to help him with normal daily life (Ex 1D/2, Occupational therapists' conclave report, pp 134-142). These items are an Easireacher to assist him with reaching objects on the floor and above shoulder height at a cost of $65 (replaced every two years), a laundry trolley at a cost of $42 (replaced every 5 years) and a kitchen stool at a cost of $285 (replaced every 7.5 years). Ms Grace recommended long handled toe nail scissors at a cost of $40 (replaced every two years). 189Ms Flanagan also recommended that the plaintiff have additional equipment to assist him including a knee guard and back brace, a queen-size bed and ergonomic mattress, an ergonomic pillow and a toilet surround and raised toilet seat. I accept that these aids are necessary and reasonable. Ms Flanagan also recommended modifications to the plaintiff's vehicle, namely wide angle external and internal rear vision mirrors and reverse parking sensors. Ms Grace did not agree with these recommendations. I agree with Ms Grace in so far as the modifications to the plaintiff's car are concerned. The plaintiff did not say that he required them. 190The parties are to calculate the amount for all of the additional equipment. Schedule of damages 191For the foregoing reasons I assess the heads of damages as follows: O'Donnell Griffin Wagga Mini Mix Head of damage Amount Amount Non economic loss - 52% of $535,000 $278,200 Nil Past out of pocket expenses (agreed and paid) $103,667 Past economic loss To be calculated To be calculated Future economic loss To be calculated To be calculated Past superannuation (11% of net) To be calculated To be calculated Future superannuation (11% of net) To be calculated To be calculated Past attendant care $54,600 Nil Future care To be calculated Nil Future treatment costs To be calculated Nil 192It is noted that the following adjustments have to be made. Wagga Mini Mix has paid $328,026.72 in workers compensation payments (Ex 2D/1) to the plaintiff. The figures in relation to Wagga Mini Mix have to be adjusted to reflect the updated sum and to reflect apportionment pursuant to s 151Z(2) of the Workers Compensation Act. The Court orders that: (1) The parties are to bring in short minutes of order reflecting the up to date figures for damages to the judgment date and the s 151Z(2) apportionment. ********** 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: 27 June 2013