District Court New South Wales Medium Neutral Citation: David Aldred v Stelcad Pty Limited [2014] NSWDC 63 Hearing dates: 15 April - 17 April 2014 Decision date: 06 June 2014 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the defendant Catchwords: Liability of owner of commercial premises leased to employer of injured worker Legislation Cited: Civil Liability Act 2002 Workers Compensation Act 1987 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Al Mousawy v Howitt-Stevens Constructions Pty Ltd Ampus and Ors [2010] NSWSC 122 Botany Council v Latham [2013] NSWCA 363 Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649 Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82 Hill v Forrester (2010) 79 NSWLR 470 Jones v Bartlett (2000) 205 CLR 166 Land and Housing Corporation v Watkins [2002] NSWCA 19 Lapcevic v Collier [2002] NSWCA 300 Leonard v Smith (1992) 27 NSWLR 5 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Northern Sandblasting v Harris (1997) 188 CLR 313 Parker v South Australia Housing Trust (1985) 41 SASR 493 Shaw v Thomas [2010] NSWCA 169 Sibraa v Brown [2012] NSWCA 328 Category: Principal judgment Parties: David Aldred (Plaintiff) Stelcad Pty Limited (Defendant) Representation: M Daley (Plaintiff) D N Polin (Defendant) Brydens Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 12/328270 Publication restriction: Nil Judgment Introduction 1The plaintiff claims damages for personal injury suffered by him on 20 October 2009 whilst he was at work. The plaintiff was employed at that time by Amerind Forest Products ("Amerind") as a stock filler. Amerind supplied timber veneer products at factory premises at Ingleburn. It leased those premises from the defendant. 2The plaintiff suffered an injury to his left ankle when he alighted from a forklift that he had been driving in the premises. He stepped into a hole in the concrete floor of the warehouse, and his left ankle rolled, and was thereby injured. The Plaintiff's Claim 3The plaintiff has pleaded that the defendant was the owner of the premises which is admitted. He has not pleaded that the defendant was the occupier of the premises. By a Further Amended Statement of Claim the plaintiff has pleaded that the concrete floor in the premises was "covered with similar holes". In the circumstances the defendant, by its servants and/or agents, were under a duty of care to the plaintiff and were in breach thereof and were negligent. 4The particulars of the negligence pleaded against the defendant are as follows: (a)Failing to take any or adequate precautions for the Plaintiff's safety. (b)Putting the Plaintiff in a position of peril in the circumstances. (c)Failing to provide the Plaintiff with a proper and safe system of work. (d)Failing to carry out any or any adequate risk assessment in respect to the task that the Plaintiff was required to undertake on the pitted concrete floor. (e)Providing a warehouse floor area which was unsafe; (f)Failing to investigate and correct numerous depressions in the warehouse floor. (g)Failing to repair either permanently or by removing and reinstalling concrete slabs as appropriate or temporarily by use of suitable amounts of material (such as asphalt or concrete) or substantial changes in the floor level. (h)Failing to fill and refill as required the depressions with appropriate flexible material such as asphalt. (i)Failing to place over and screw down sheets of steel or similar material over each of the depressions. (j)Failing to appropriately highlight paint around each of the depressions to render the depressions more visually obvious and to serve as a constant reminder to the workers of their presence and potentially hazardous nature. 5The plaintiff alleges that prior to the injury suffered by him on 20 October 2009 the defendant was fully aware of a problem with the concrete flooring in the premises and that the edging on the flooring was being broken up by forklift trucks driving over it. The plaintiff contends that in those circumstances the defendant was under a duty of care owed to the plaintiff to rectify or repair the defects known to it to be existing in the floor of the premises and by failing to do so the defendant breached that duty to take reasonable care, thereby causing the plaintiff's injury. The Defendant's Case 6The defendant relies on the registered lease that it had with the plaintiff's employer, Amerind, which commenced on 1 March 2006. Amerind was the occupier of the premises, and the defendant contends that its obligations in relation to the premises were confined to its contractual obligations under the lease. 7The defendant further denies negligence and has specifically pleaded that the risk alleged was an obvious risk, and further relies on ss 5B to 5E of the Civil Liability Act 2002 ("CLA")to allege that the defendant was not negligent, and in the alternative, pleads that it did not owe a duty to warn of said risk of injury. The defendant relies on s 5H of CLA and further pleads that the risk was an obvious risk which the plaintiff is presumed to have been aware of pursuant to s 5G of the Act. 8The defendant has further pleaded contributory negligence by the plaintiff by him failing to keep a proper look out, and in answer to the plaintiff's Further Amended Statement of Claim, relies on s 151Z(2) of the Workers Compensation Act 1987 ("WCA")to allege that any damages awarded against the defendant must be reduced pursuant to s 151Z(2) by reason of the negligence and breach of duty of care of the plaintiff's employer, Amerind. The defendant submits that as Amerind would be 100% responsible for the injury suffered by the plaintiff as his employer, there could be no verdict against the defendant. Issues to be determined in respect of liability 9The following are the issues to be determined in respect of liability: (1)Did the defendant owe the plaintiff a duty of care as owner of the premises? (2)If so, what was the scope of that duty of care? (3)Was there a breach of any relevant duty of care having regard to the relevant provisions of the CLA? (4)If so, was that breach causative of the plaintiff's injury? (5)Did the plaintiff contribute to his own injuries by his own negligence? (6)Is any deduction warranted to the plaintiff's damages pursuant to section 151Z (2) WCA in respect of any negligence of the plaintiff's employer? Factual Background 10Except where otherwise indicated, I find the facts to be as follows. On 1 March 2006 the defendant leased the premises to the plaintiff's employer Amerind Pty Ltd for a period of five years terminating on 28 February 2011. The premises were situated at 5/6 Lancaster Street Ingleburn and measured approximately 10,000 m² of factory space. The lease contained fairly typical provisions for a commercial lease including terms prohibiting the use to which the tenant could put the premises and obligations on the tenant to maintain the premises subject to ordinary wear and tear. 11In August 2006 the plaintiff was employed Amerind as a forklift driver. Amerind sold timber veneer products and the plaintiff's duties included preparing orders for delivery, delivering orders and then preparing other orders for delivery. 12At the time his employment commenced the flooring of the factory premises was normal concrete flooring. Over time, the plaintiff observed holes to be appearing through wear and tear in the concrete along joins where the concrete slabs met. He observed 10 to 15 of such holes. 13On 20 October 2009 the plaintiff was driving a forklift truck putting stock away. He stopped the forklift to remove a timber glut from the load that he was carrying to enable the load to be properly stored. He then got off the forklift describing his movement in the following way: - "I put it in neutral, I put the handbrake on, I put my hand, my right hand, on the handle on the side and just stepped my foot down". "Q. Which foot? A. My left foot. Q. What happened when you stepped your left foot down? A. I fell into the hole and fell over." 14The plaintiff gave evidence that when his left foot struck the hole in the floor it caused his ankle to roll and he fell over onto his back. When asked how big the hole was he said: "A. About a metre long and anywhere between 100 to 200 mm wide. I can't really say how deep it was." 15A photo of the hole into which he placed his foot became Exhibit A. 16The plaintiff conceded that he was aware that the flooring of the premises had deteriorated and he therefore took care when he got off the forklift near where holes had appeared. On this occasion his view of the hole in the floor was obstructed by the load that he was carrying on the forklift. 17Following the incident the plaintiff reported to the production manager Mr Robert Belshaw that he had twisted his ankle stepping off the forklift, "through a crack in the concrete". That report was confirmed in an incident report which became Exhibit 5. The incident was described as follows: "Stepped off forklift, foot went into crack in concrete, heard crack and fell over, did not see it." Under the heading 'Injury/illness details', that document included the following: - "trip from the crack" 18Mr Belshaw observed the site of the accident and described it as follows: - "A: There was a piece of concrete that was missing and there was a crack evident right next to the forklift where he stepped off". 19Mr Belshaw then arranged for repair of the crack and conceded that the defendant had nothing to do with that particular repair. In cross-examination, Mr Belshaw conceded that the holes in the concrete were patched because they represented a danger to persons working in the premises. He is not aware of any prior occasion when a worker had tripped on one of the holes. 20At the time that the relevant hole was repaired, the repairer also repaired two other sectors of floor where there were holes. Those repairs lasted between 8 and 12 months. 21Six months prior to the injury suffered by the plaintiff, on 27 April 2009 a meeting had taken place between employees of the defendant in which the premises were discussed. Minutes of that meeting contained reference to the need to repair holes in the floor to the premises, (Exhibit J). 22The plaintiff relied on the report of Neil Adams dated 31 May 2013 (Exhibit E) which was admitted over objection (see separate judgment). That report identified the relevant part of the floor where the plaintiff rolled his ankle as shown by the plaintiff to Mr Adams during his inspection of the premises. In paragraph 2.2.2 of his report Mr Adams described the depression in the concrete floor which the plaintiff stepped into as measuring "over 1300mm long and more than 150mm wide, and was over 25mm deep in the area where I was asked to measure its depth. It was further described as one of many similar depressions in the warehouse floor ([2.2.4]). The Plaintiffs Submissions 23Counsel for the plaintiff described the floor of the factory as "a disaster". He submitted that there were holes all over the factory floor and that the condition of the floor deteriorated over a period of three years before anything was done to repair those holes. Counsel submitted, relying on Jones v Dunkel (1959) 101 CLR 298, that an inference could be drawn from the failure of the defendant to call any witness who attended the meeting on 27 April 2009 referred to in the notes in Exhibit J, namely that it could be inferred that nothing any witness who might have been called could have said would have assisted the defendant's interests in this case. 24Counsel further submitted that under the terms of the lease the defendant was exercising significant control over the premises. It was, in effect, "keeping its hands ... all over them so that in the event of anything that it might have seen as undesirable, it had rights and remedies under the lease to have the problem rectified, and one of these problems was this flooring." 25Counsel made the following submissions: " An appropriate response from a responsible owner of the property - commercial property, this is not just a tenanted property, this is a commercial property where there's going to be high activity, where the owner of the property will be aware, at least in a general nature, of the high activity and the fact that people would be there and relying upon a satisfactory state of the premises for their safety - they had an obligation no later than April 2009 to go out and have a look, and if they didn't - and there's no evidence to say what they did because the defendant won't put anyone in the witness box - they can't be heard to complain but they ought not have known what those photographs that have been tendered show." 26It was submitted that that obligation arose partly from the common law, and partly from their knowledge that there was significant problems with premises. The plaintiff relied on a number of authorities including Parker v South Australia Housing Trust (1985) 41 SASR 493, Land and Housing Corporation v Watkins [2002] NSWCA 19 and others to establish that the landlord of the premises owed a duty of care in respect of known defects on those premises. The plaintiff submitted that the obligation on the defendant here arising from those authorities was that the defendant was required to repair the flooring and ensure that it was repaired. The holes in the flooring were caused by forklift trucks traversing the floor carrying loads. The relevant risk of harm was that of "somebody stepping on the hole, losing balance and thereby suffering personal injury"' 27The plaintiff further relied on the Court of Appeal's decision in Lapcevic v Collier [2002] NSWCA 300. In that case a worker was injured when opening a large iron warehouse door in the course of his employment. He sued the owner of the warehouse in circumstances where the lease of those premises between the owner and the worker's employer contained a provision specifically dealing with repairs required to that door, which were not carried out. The Court held that the owner owed a duty of care to the injured worker to ensure that the door was not in a condition so as to be "dangerous", and the appellant breached that duty by failing to fix the door in accordance with the High Court of Australia's judgment in Jones v Bartlett (2000) 205 CLR 166. 28Lapcevic also dealt with the correct application of s 151Z WCA, and applying the Court's earlier decisions in Leonard v Smith (1992) 27 NSWLR 5 and Grljak v Trivan Pty Ltd (1994) 35 NSWLR 82, assessed the appropriate contribution of the employer and non employer tortfeasors on the basis that the employer was entitled to complete indemnity from the owner who was not entitled therefore to recover any contribution from the employer. The counsel for the plaintiff submitted that Lapcevic was on all fours with the present case. 29The plaintiff relied on clause 6.5 (c) of the lease to submit that the defendant reserved to itself significant rights of control over what was happening on the premises. That clause provided relevantly as follows: - "6.5 the Tenant must not: (c) do or permit to be done on the Premises anything which in the reasonable opinion of the Landlord may become a nuisance or a disturbance, obstruction or cause of damage to the Landlord or to the tenants or customers of the Pool Shop or to any adjoining or nearby owners or occupiers, will use the Premises in any noisy, noxious or offensive manner." 30It was further submitted that whilst the tenant i.e. the plaintiff's employer had obligations under the lease subject to fair wear and tear being excepted, that did not absolve the landlord from its obligations in respect of structural matters. It was submitted that the flooring was a structural matter and therefore the defendant retained control over it, relying on clause 7.2. Similar provisions in clause 7, including 7.4 (a),(b) and (g) demonstrated in the plaintiff's submission that the defendant was reserving to itself that if they were held liable for repairs the tenant would have to indemnify the owner for it, again consistent with the owner not just completely absolving itself from such obligations for the term of the lease. 31The plaintiff also relied on clause 7.6 which provides as follows: "7.6 the tenant must immediately give notice to the landlord of: (a) any damage to and of any accident or defects in the Premises or in any of the services or other facilities provided by the Landlord in the Premises; and (b) any circumstance likely to occasion any damage or injury occurring within the Premises." The plaintiff relied on this clause to submit that the defendant had not completely delegated its responsibility in respect of the premises pursuant to the lease. Similar submissions were made in respect of clauses 7.10 and, 7.11 and 7.12. 32Similarly the plaintiff relied on clause 8.1 which places an obligation on the tenant to keep current at all times during its occupation of the premises a policy of public risk insurance. This clause, together with clause 8.5, clause 13 and clause 17.1 all demonstrated a residual control over the premises by the defendant notwithstanding the terms of the lease. 33Counsel for the plaintiff submitted that the risk of injury by way of stepping into the hole in the flooring was not obvious because the particular hole in this case was obscured in part by the forklift and the load. 34Counsel further submitted there could be no contributory negligence on the part of the plaintiff. What he did was mere inadvertence in the course of otherwise trying to carry out his duties. 35In respect of s 151Z WCA the plaintiff submitted that there would be a deduction of 30 to 40% of any damages awarded against the defendant by virtue of the employer's negligence in this case, relying on Lapcevic, supra. Defendant's Submissions on Liability 36Counsel for the defendant submitted that the plaintiff had an excellent claim against his employer but for obvious reasons, (ie, that he could not pass the threshold for work injury damages under the WCA), could not bring such a claim, and therefore he had chosen to sue the defendant. Counsel submitted that the Court could not be satisfied that the accident occurred where the plaintiff said it occurred, relying on the evidence given by the plaintiff as to the photographs in Exhibit A. 37Counsel submitted that no relevant duty of care was owed by the defendant as owner of the premises to the plaintiff, as the facts lay outside the accepted relationships which would ordinarily give rise to such a duty of care. The defendant submitted that the question of whether there exists a duty of care and if so, its scope, must be determined in accordance with the judgment of Allsop P in Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [102] and [103] as applied by Hoeben J (as he then was), in Al Mousawy v Howitt-Stevens Constructions Pty Ltd Ampus and Ors [2010] NSWSC 122. 38Counsel for the defendant submitted that the lease was the starting point for any determination as to whether a duty of care arose and referred to clauses 6.2, 6.5, 7.1, 7.4 and 7.6. 39In respect of Exhibit J, (the notes of the meeting that took place on 27 April 2009), whilst it was conceded that the document was produced from the records of the defendant, when viewed as a whole all that can be inferred from that document was that the tenant had complied with its obligations under clause 7.6 of the lease by giving notice to the defendant of the repair required to floors, and it remained the tenant's obligation to repair it. That is in fact what happened following the plaintiff's injury. 40Even if a duty of care arose here, counsel submitted that the standard was one of reasonable care. Such a duty was not co-extensive with the duty of an employer which was a non-delegable duty to its employee to provide a safe system of work, a safe place of work and safe plant and equipment. Here, it was submitted that notwithstanding that there would be some contributory negligence on the part of plaintiff, given his knowledge of the holes in the flooring and the fact that he parked his forklift adjacent to the hole and got off without looking, any apportionment carried out pursuant to s 151 Z would necessarily find that the employer was 100% liable. 41Counsel for the defendant submitted that the defendant could not have known of the risk of harm arising from the particular hole here, relying on Botany Council v Latham [2013] NSWCA 363. The notes contained in Exhibit J did not impute any knowledge to the defendant of the particular hole upon which the plaintiff tripped in October 2007. 42Counsel for the defendant distinguished the Court of Appeal's decision of Lapcevic v Collier. In that case the appellant was aware of a dangerous defect because of its contractual obligation under the terms of the lease to fix the heavy door and because of the continuing requests from the tenant that the repairs be carried out. That was not the case here, given that the lease was a standard commercial lease which required the tenant to undertake the repairs in question. There was no dangerous defect provided for in the lease here. 43Further, it was submitted that Exhibit J did not assist the plaintiff as the purpose of the meeting had to be determined from a reading of the whole of the document. It was clearly a meeting called to discuss circumstances where the tenant was suggesting the premises were too big for it and they wanted to move to a smaller space. In discussing that matter, the meeting dealt with numerous matters including general maintenance issues. In any event, the document supported an inference that any repairs to it were to be carried out at the expense of the tenant. There was no notification of any dangerous defect in the property. 44As to the question of obvious risk, the defendant submitted that the plaintiff knew that there was a problem with holes in the floor, he accepted that he parked his forklift next to the hole and did not look down to the ground when he was about to step down. 45Counsel submitted that even if there was a duty of care, the question to be determined pursuant to s 5B CLA meant that a reasonable response was to do nothing which is what occurred here. Therefore there was no breach. 46Counsel for the defendant submitted that there was no suggestion that the defendant had breached its lease as a result of the defendant failing to check whether there was cracking in the concrete flooring. Did the Defendant owe the Plaintiff a Duty of Care 47In Lapcevic v Collier, supra the Court of Appeal held, referring to earlier High Court decisions in Northern Sandblasting v Harris (1997) 188 CLR 313 and Jones v Bartlett and Anor (2000) 205 CLR 166, that a landlord of commercial premises owed a duty of care to a tenant's employee working on those premises where the landlord let the premises with a dangerous defect of which not only it knew, but it undertook contractually in the lease to repair. Thus the question as to whether a duty of care was owed here by the defendant is not a novel one requiring the detailed analysis set out by Allsop P in Caltex v Stavar, supra. The duty is informed by the joint judgment of Gummow and Hayne JJ in Northern Sandblasting at [197], as set out in the judgment of Beasley JA in Lapcevic at [34] as follows:- "Nevertheless, the duty of the landlord owed to these third parties, in many cases, will be narrower than that owed to them by an occupier such as a tenant. Example of facts not involving the placing of a duty on a landlord is a slippery floor; an unsecured gate to a fenced swimming pool maybe another. The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for the purpose for which they are not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known." 48Here, the landlord did not know, nor should it ought to have known, at the time of leasing the premises that the concrete flooring to the premises would become damaged over time by reason of the use by the tenant of forklift trucks within the premises. Thus no duty arose at the time of making the lease in 2006. The question that arises is whether a duty of care subsequently arose when the defendant became aware on 27 April 2009 of a problem with the flooring as evidenced by Exhibit J. 49In Lapcevic, Beasley JA held that the owner of the premises was aware of the dangerous defect created by the heavy iron clad door not only because of its contractual obligations to fix the door under the lease but because of continuing requests from the plaintiff's employer that the door be fixed (see [46]). That was not the case here. Exhibit J cannot be relied on by the plaintiff here to impute relevant knowledge to the defendant of a dangerous defect in the premises for the following reasons: - (i)the notes in Exhibit J relate to a meeting between persons employed by the defendant, however the positions they occupied, and their authority to bind the defendant are unknown. (ii)on its face, the principal purpose of the meeting appeared to be that the plaintiff's employer, Amerind, was looking for smaller premises to operate its business from. (iii)a number of separate issues were dealt with according to the notes taken of the meeting. The notation 'Amer $' adjacent to the entry in the notes relating to the flooring infers that it was a problem to be fixed at the expense of the tenant, not the defendant. That was consistent with the terms of the lease (clause 7.4) (iv)further the tenant had not given notice pursuant to clause 7.6 of the lease to the landlord of any damage to/or defects in the premises or any circumstances likely to occasion any damage or injury occurring within the premises. 50Thus I am not persuaded on the balance of probabilities that, on the basis of the notes contained in Exhibit J the defendant was aware, or ought to have been aware, of any defect in the flooring of the premises which may give rise to a foreseeable risk of injury to employees of the tenant using the premises in the course of their employment (let alone the particular defect giving rise to the plaintiff's injury here). Having considered the whole of the terms of the lease, I find that the defendant was not under any relevant duty care to take reasonable care to prevent a foreseeable risk of injury to the plaintiff. Further, the case as pleaded against the defendant (as set out in [4] above) reflects a duty of care owed by an employer/occupier, and not an owner, of premises. 51This case can be distinguished from Lapcevic v Collier where the Court found that the duty of care arose from the terms of the lease itself which required the landlord to repair the door and to keep it in reasonable working order. There was no such obligation placed on the defendant here as owner of the premises in respect of the general condition of the floor within the premises Breach, Causation and Contributory Negligence 52Having regard to my finding that there was no relevant duty of care here, issues numbered 2 to 5 outlined in [9] above do not arise. However if I am wrong in my finding as to the absence of a relevant duty of care I should make it clear that that finding extends to a finding that the scope of any duty that may have been owed by the defendant to the plaintiff here did not extend to taking reasonable care to avoid the relevant "risk of harm" here, i.e. a foreseeable risk of injury that the plaintiff might injure himself when alighting from the forklift vehicle onto the floor of the premises by placing his foot on the shallow defect in the floor. 53The reason for that finding is that the premises were factory premises which the plaintiff worked in on a daily basis. He and his employer were aware of the irregularities in the flooring caused by the movement of the forklift truck over sections of the flooring and the gradual deterioration of the concrete at the joins as depicted in the photos contained in Mr Adam's report. Looking at the matter prospectively, for a person in the position of the defendant as owner of the premises, it could not be regarded as foreseeable that the plaintiff would suffer injury in the way he did. 54Further, applying sections 5B and C of the CLA there could be no breach of a duty to take reasonable care. Whilst the standard for a risk being "not insignificant" is not particularly high (see Shaw v Thomas [2010] NSWCA 169 at [44], and Sibraa v Brown [2012] NSWCA 328 at [49], it must be assessed prospectively, having regard to all of the facts. As Campbell JA (with whom Hoeben JA and Tobias AJA agreed) said in Sibraa at [50]: "The significance of the possible injuries is one part of assessing whether the risk itself is not insignificant, but not the whole of that assessment. As well, the likelihood of the harm arising enters into that question." 55Here, the likelihood of harm to the plaintiff was quite remote to the defendant. Hence, the plaintiff has not established that the risk of harm was not insignificant. In the circumstances a reasonable person in the defendant's position would not have taken any precautions against such a risk and therefore the defendant could not have been negligent applying section 5B of the CLA. Having regard to that finding, no issue of causation could arise to be determined pursuant to s 5D of CLA. 56In respect of whether there could have been contributory negligence, in the circumstances in which he was injured whilst carrying out his work duties, the plaintiff did not by his own negligence contribute to his own injuries. Rather, his view of the irregularity in the flooring was obstructed by the load being carried by the forklift and therefore he stepped off the forklift unaware of the defect upon which his foot was to be placed. In those circumstances I would not have made a finding of contributory negligence. Section 151Z WCA 57If the plaintiff was entitled to succeed on a cause of action in negligence against the defendant, in my view, the defendant would have been entitled to a complete indemnity from the plaintiff's employer Amerind Pty Ltd pursuant to s 151Z (2) WCA. The reasons for that are as follows: - (1)Amerind owed the plaintiff a non delegable duty of care which was coexistent with any duty said to be owed by the owner of the premises to the plaintiff. (2)The plaintiff's employer was clearly negligent in failing to provide a safe system of work for him. The defects to the flooring had appeared over a period of time prior to the plaintiff's injury, and the plaintiff's employer was clearly aware of the defects. (3)It remained the contractual obligation of the employer to repair the defects and it did so following the plaintiff's injury. (4)The terms of the lease created no contractual obligation on the defendant to repair the flooring and therefore it was entitled to a total indemnity from the plaintiff's employer. 58For the above reasons, there will be a verdict for the defendant on the plaintiff's claim. However, if I am incorrect in so finding, I will assess the plaintiff's damages in the event that he may be successful against the defendant as follows. Damages 59The plaintiff was born on 18 August 1981 and left school after the Higher School Certificate in 1999. Thereafter he worked in semi-skilled work as a sign installer, driver and yard hand until he commenced employment with Amerind in August 2006 as a forklift driver. At the time of his injury he was 28 years of age and was married with one child. Following his injury he was taken to Campbelltown Hospital where he underwent an x-ray and was given pain relief. An MRI scan of his foot was ordered and he was off work for six weeks. During that time he developed a DVT in his left calf for which he required Clexane injections on a daily basis for four weeks. Thereafter he was prescribed Warfarin for two to three months. 60The plaintiff returned to work on light duties and was wearing a moon boot for four months. Over a period of months he built up to full time work doing his pre-injury duties, but gave evidence that he had difficulty with those duties as his foot was in constant pain and he couldn't stand on it. After work he was exhausted and was unable to do anything around the home. 61The plaintiff remained under the care of his GP Dr Ibrahim, who referred him to a pain management specialist, Dr Manohar. He was treated with Ketamine, nerve blocks and a spinal cord stimulator trial. The nerve blocks gave him relief which was transient and he gave evidence that he still had pain in his foot. 62The plaintiff also had a dorsal stimulator trial when he suffered a spinal cord fluid leak and was admitted to Liverpool Hospital. He had ten weeks off work because of the consequences of that episode. He continued under the care of a Dr Abraszko, a Neurosurgeon, and Dr O'Carrigan, Orthopaedic Surgeon. He continued to take Panadeine Forte and anti-inflammatories. 63In December 2010 he resigned from his employment with Amerind and he obtained employment with Jennmar Pty Limited, again as a forklift driver. He was medically examined for that position and the medical officer noted a history of "crush nerves in left ankle (CRPS) - not quite 100% now - minor pain" (exhibit 2). No abnormality was detected on examination of his left knee or ankle. He has worked full time ever since, although he gave evidence that he is unable to do some overtime because of the pain in his ankle. 64The plaintiff gave evidence that he still suffers pain in the ankle joint itself and a shooting pain in his leg. He hears a cracking sound in the leg three or four times a day and has constant aching, problems on stairs and uneven ground. 65The plaintiff gave evidence that before the accident he mowed the lawns, washed the cars and helped his wife with their child, and cooking and cleaning. He was unable to do those things now. He required assistance from his wife, which was eight hours per week following the injury, but at the time of trial was five to six hours. At that time his father-in-law was also assisting probably two hours per week. 66In cross-examination the plaintiff said that he did not always have problems doing domestic tasks at home, however, the majority of the time he was in constant pain. He and his wife were in the course of building a home and he was able to walk around the building site. He was also able to mow the small area of lawn there. He also contributed to cleaning the block by picking up rubbish such as bricks. From March 2013 there had been a deterioration in his ankle and he had noticed swelling and bruising. Notwithstanding that he had continued to work full time. 67Mrs Nicole Aldred gave evidence of the effect of the injury on the plaintiff. She corroborated his evidence as to the problems he had with his ankle following the injury and their effect on him. He was unable to do very much at all when he returned home from work. She confirmed that he was able to mow the lawns at their new property. Notwithstanding that he worked full time, she gave evidence that he was exhausted after work and that she preferred him not to assist her with some of the household chores. Those domestic tasks were as heavy as the work that he carried out at Jennmar. 68The medical evidence upon which the plaintiff relied (exhibit D) demonstrated that he had suffered an inversion injury to his left ankle with joint sprain. He had subsequently developed a DVT which was treated appropriately. He had increasing pain in his left ankle with features of a complex regional pain syndrome. He underwent three sympathetic neural blocks. He was treated for a burning sensation in his foot with constant pain, swelling, redness and sweatiness in the foot with a cracking sensation. His treatment included the spinal cord stimulator from which he suffered a dural leak and was admitted to Liverpool Hospital. He reported to Dr Manohar that he felt increasing pain from early 2012. 69When examined by Dr Lorentz, neurologist, in April 2013, he had a number of features of a complex regional pain syndrome, including skin colour changes, oedema, increased sweating in the left foot, trophic changes in the skin of the left ankle and trophic bone changes. Dr Lorentz was of the opinion that he was significantly limited in domestic and domestic activities. He would need a gardener or labourer to assist in his garden and backyard and handyman assistance of two hours per month. 70The plaintiff's claim for domestic assistance was supported by reports by Dr Peter Conrad, and Dr Bodel, both dated 9 April 2013 who described the plaintiff's injury as "a forced inversion injury to his left foot and ankle". He suffered a ligamentous strain in the foot anterolaterally, however, there was no major structural injury to the lateral ligaments or evidence of talar bone injury. The injury was complicated by the development of a DVT and complex regional pain syndrome. Dr Bodel was of the opinion that he would have required six hours domestic assistance per week for the first eight months after the injury and presently requires three hours domestic assistance per week indefinitely. 71The plaintiff was examined by Dr Jonathan Adams, psychiatrist, on behalf of the defendant. His report dated 24 October 2013 was tendered by the plaintiff (exhibit L). He reported the plaintiff had suffered a psychological reaction, but no mental illness, as a result of his chronic pain. 72The defendant relied on two reports which are contained in exhibit 3. On examination, Dr Schutz, consultant surgeon, heard the audible crack associated with the plaintiff's symptoms. However, he was unable to provide a specific cause for that crack or the pain the plaintiff was suffering. Dr Schutz was of the opinion that it was unlikely that there would be any improvement in the plaintiff's pain until the mechanical cause of his pain was identified and treated. 73Dr Casikar, in a report dated 16 December 2013, was of the opinion that there was no evidence to support a diagnosis of regional pain syndrome. Notwithstanding that opinion, Dr Casikar went on to opine that prognosis was difficult to predict and "regional pain syndrome could be a chronic issue". Dr Casikar went on to says that the plaintiff's symptoms could probably be defined as a chronic pain syndrome which did not qualify for a definition of "chronic regional pain syndrome". He did not believe that the plaintiff required any domestic assistance as a consequence of the injury. Plaintiff's Submissions on Damages 74The plaintiff relied on the following schedule of damages: Non-Economic Loss 40% MEC $220,500.00 Out of Pocket Expenses $74,035.88 Future Out of Pocket Expenses $30,000.00 Past Economic Loss Workers compensation $23,950.24 $61,590.00 Difference to earnings for 26 plus 10 weeks $3,640 Loss of Overtime 9 hours @$27 net per hour for 140 weeks $34,000 Future Economic Loss $750 pw less 15% for vicissitudes $558,195.00 Fox v Wood 20% weekly payments ($23,950.34) $4,790.00 Past Care 2 months full time @ $969.40 pw = $8,724 $49,142.00 4 months @ 14 hours pw @ $23 ph = $5,474 Balance 7 hours pw @ $24 ph = $34,944 Future Care 7 hours pw @ $40 ph $276,892.00 Past Superannuation At 11% net $6,774.00 Future Superannuation At 14.31% net $79,877.00 Total $1,361,795.80 The Defendant's Submissions on Damages 75The defendant submitted that the plaintiff had returned to full time work within a relatively short time of his injury and had continued to work full time. Not only did he continue to work normal hours, but he continued to work overtime and his earnings demonstrated a significant progression up to the present time. There were inconsistencies in the evidence of his inability to carry out domestic tasks. The defendant ultimately submitted that it had successfully challenged the plaintiff's evidence to the extent that his assertions in respect of his inability to carry out domestic tasks were "just ridiculous". The defendant further submitted that in assessing damages pursuant to the Civil Liability Act, the plaintiff's claim for noneconomic loss was a "threshold case" on one view of it. Assessment of Damages 76The plaintiff impressed me as a stoical man who was determined to work full time, and do overtime, in order to provide as best he could for his young family. The injury he suffered was an inversion injury to his left ankle, from which he subsequently developed a DVT requiring treatment over some months. Unfortunately, his ankle injury caused him chronic pain and numerous features of a complex regional pain syndrome. Whilst that diagnosis was not at any time made, he has continued to suffer pain and swelling in his left ankle, particularly after work. I accept Dr Lorentz's opinion that his symptoms have become chronic and that it is unlikely that full recovery will occur. Pursuant to s 16 of the Civil Liability Act, I would assess his damages for non-economic loss at 25% of a most extreme case. Applying the table under that section, I would award the plaintiff the sum of $36,000.00 for this head of damages. 77I note that treatment expenses were agreed mathematically in the sum of $74,035.88. This represents the total amount paid for his medical treatment by the Workers Compensation Insurer. In my view, it correctly reflects the treatment expenses. 78For the future, I accept that the plaintiff will require ongoing medical supervision, treatment and medication including procedures with nerve blocks as opined by Dr Lorentz. I do not find that he will require the provision of a further spinal nerve stimulator and he did not give evidence to that effect. I therefore allow the sum of $15,000 for future treatment expenses. 79The plaintiff's claim for past economic loss is confined to the difference between the workers compensation payments he received and his earnings for a period of 36 weeks, plus a claim for loss of overtime. He was paid workers compensation $23,950.24 which would have to be repaid if he succeeded in obtaining an award of damages. I allow past economic loss in the sum of $61,590.00. 80The plaintiff also claims Fox v Wood payments of $4,790.00, which I allow. 81For the future, the plaintiff's claim of $750 per week less 15% for vicissitudes vastly overstates the diminution of his earning capacity. Notwithstanding the provisions of the Civil Liability Act, the test remains whether his injuries are or may be productive of economic loss - see Medlin v State Government Insurance Commission (1995) 182 CLR 1. Pursuant to s 13 of CLA, the plaintiff's most likely future circumstances, but for the injury, would have been to continue working full time and do as much overtime as he was offered. The plaintiff will continue to work full time and also carry out overtime. There is, however, a diminution in his capacity to carry out that overtime and by way of economic loss for the future, given his young age, I award him, by way of a lump sum as a cushion for the future, the sum of $25,000.00 - see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 per Basten JA at [33] to [48] (concerning the award of a buffer for future economic loss pursuant to s 126 of the Motor Accident Compensation Act 1999, which is in similar terms to s 13 CLA). 82For past superannuation I allow the sum of $6,774.00. I make no allowance for future superannuation on the basis of the lump sum awarded. 83Much of the trial was taken up with the plaintiff's claim for past and future domestic assistance. I am satisfied that the plaintiff passed the threshold contained in s 15 of the Civil Liability Act of six hours per week and for a period of six months (see Hill v Forrester (2010) 79 NSWLR 470). For a period of 12 months following the accident, I allow the plaintiff 8 hours per week domestic assistance. Thereafter, I allow him four hours per week up to the date of trial. The calculation is as follows: First 12 months - 8 hrs x 52 wks x $23 $9,500.00 From 21 October 2010 to date - 190 x 4 hours x $23 $17,500.00 Total $27,000.00 84For future domestic assistance I find that the plaintiff will require some assistance with outdoor home maintenance in gardening and heavier work. It will not, however, last indefinitely and I therefore award him two hours per week for a period of five years. The agreed rate for commercial care was $40 per hour. I therefore award the plaintiff $20,800.00 for this head of damages. 85I therefore assess damages as follows: Non-Economic Loss $36,000.00 Treatment expenses $74,035.88 Future treatment expenses $15,000.00 Past Economic Loss $61,590.00 Fox v Wood $4,790.00 Future Economic Loss $25,000.00 Past Domestic Assistance $27,000.00 Future Domestic Assistance $20,800.00 Past Superannuation $6,774.00 Total $270,989.88 Conclusion 86For the reasons outlined above, the plaintiff's claim against the defendant has not been established and there will be a verdict for the defendant. If I am wrong in my conclusions as to whether there was a relevant duty of care owed by the defendant to the plaintiff here, whether that duty was breached, and whether, in any event, the plaintiff's employer would have provided complete indemnity in respect of any such injury, I have assessed damages as outlined above. Orders 87I make the following orders: (1)There will be a verdict for the defendant. (2)The plaintiff is to pay the defendant's costs. (3)The parties have liberty to apply on seven days notice in respect of any special costs order. (4)The exhibits are to be returned. (5)I direct the parties to collect the exhibits from the Registry within 14 days. 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: 06 June 2014