Supreme Court New South Wales Medium Neutral Citation: Dailhou v Kelly; State of NSW v Kelly (No 2) [2014] NSWSC 1207 Hearing dates: 25, 26, 27 and 28 August 2014 Decision date: 02 September 2014 Jurisdiction: Common Law Before: Adamson J Decision: Proceedings 158994 of 2010 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. Proceedings 233293 of 2011 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. Catchwords: TORTS - negligence - plaintiff failed to prove case - not established how or why he fell down a flight of stairs in bookshop - no negligent act or omission attributable to the defendants - plaintiff not credible witness DAMAGES - economic loss relatively modest - plaintiff able to travel overseas not long after fall - no real prospects of becoming a school principal WORKERS' COMPENSATION - workers compensation insurer obliged to establish that compensation paid was referable to the putative tortious incident - not sufficient that it allocated the expense to an earlier claim where there was a subsequent work-related injury to same part of body not causally related to subject incident - effect of Determination of Workers Compensation Commission Legislation Cited: Civil Liability Act 2002 (NSW), s 15 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10 Workers Compensation Act 1987 (NSW), ss 9A, 60, 151Z Workplace Injury Management And Workers Compensation Act 1998 (NSW), s 74 Cases Cited: Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Glad Cleaning Service Pty Limited v Vukelic [2010] NSWSC 422 James D Ritchie Pty Limited v Imrahan Kathirgamalingam (District Court, Williams DCJ, 21 April 2011, unrep) Jones v Dunkel ((1959) 101 CLR 298 Kurnell Passenger & Transport Service Pty Limited v Randwick City Council [2009] NSWCA 59 Kwanchi Pty Limited v Kocsis (1996) 40 NSWLR 270 Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 Category: Principal judgment Parties: Proceedings 2010/158994 Peter Michael Dailhou (Plaintiff) Maurice Kelly (First Defendant) Topmill Pty Limited (Second Defendant) Proceedings 2011/233293 State of NSW (NSW Department of Education & Training) (Plaintiff) Maurice Kelly (First Defendant) Topmill Pty Limited (Second Defendant) Representation: Counsel: Proceedings 2010/158994 E Welsh/ V Tzatzagos (Plaintiff) R Cavanagh SC/CJ Callaway (1st and 2nd Defendants) Proceedings 2011/233293 A Combe (Plaintiff) R Cavanagh SC/CJ Callaway (1st and 2nd Defendants) Solicitors: Proceedings 2010/158994 Federation Law Pty Limited (Plaintiff) McCabes Lawyers Pty Ltd (1st and 2nd Defendants) Proceedings 2011/233293 Rankin Ellison Lawyers (Plaintiff) McCabes Lawyers Pty Limited (1st and 2nd Defendants) File Number(s): 2010/158994; 2011/233293 Publication restriction: Nil Judgment Introduction 1Peter Dailhou commenced proceedings for damages in respect of two falls: the first is alleged to have occurred on 25 June 2007 in Kelly's Bookshop at Glebe (proceedings 2011/233293); the second is alleged to have occurred in McDonald's at Thornleigh on either 21 or 23 December 2009 (the plaintiff's evidence is not consistent on this point)(proceedings 2012/326188). The proceedings against McDonald's were resolved by consent on the basis of a judgment for the defendant with no order as to costs. 2Accordingly the proceedings that remain to be determined are Mr Dailhou's claim against Mr Kelly and his company, Topmill Pty Limited, (the defendants) and Mr Dailhou's employer's claim against the defendants for recovery of workers compensation payments made to him. Mr Dailhou is employed as an Assistant Principal of the North Taree Primary School. His employer is the State of New South Wales (through the Department of Education and Training) (the State). The Facts 3Mr Dailhou was born in 1954. He lives with his wife, who was also a teacher, in Taree. They conducted various businesses from their home, as well as working for the Department of Education. 4In June 2007, Mr Dailhou travelled to Sydney to make a presentation at the Successful Learning Conference at the University of Sydney. The conference was to take place on Monday, 25 June 2007 and Tuesday 26 June 2007. Mr Dailhou was paid his salary for these days by the Department of Education. 5On Monday evening, 25 June 2007, at about 5.45 pm, Mr Dailhou decided to browse in Kelly's bookshop which was located on Broadway, Glebe, between the Sydney University campus where the conference was held and the hotel where he was staying. 6The bookstore had a downstairs basement area that was used primarily for storage. There was a downstairs exit from this area with a loading dock. A flight of twelve stairs provided access from the downstairs area to the ground floor. The stairs were made of wood. The top two stairs had metal nosings. There is a handrail on the stairs, which is on the left in the downward direction. There were restricted publications stored in the downstairs area, although some of these were also available on the ground floor. One could see from the landing, if one looked towards the downward stairs, a sign that signified the presence of the restricted books and articles on the lower ground floor. 7Sometimes access to the downstairs area was barred by a chain suspended on the landing. I accept Mr Kelly's evidence that the purpose of the chain was to deter customers from descending the stairs with merchandise that had not been paid for since usually there was no staff member present on the lower ground area to monitor the exit. Generally customers who wanted to go downstairs would consult the staff at the counter. I accept that the chain was not used for any reason connected with safety. 8At the top of the stairs there was a carpeted landing which measured 1.5 metres wide and was about 1 metre deep from the top of the stairs to the rear of the landing. It was not enclosed. It was lit by the ambient light in the bookstore. There is no suggestion that the lighting was in any way inadequate. 9Mr Dailhou's evidence was that he was browsing through the books and came to the landing. He said that he was unaware that there were stairs leading down one level to a section of the bookshop that was reserved for adult books and sex toys. He said that he fell down the stairs and landed on the floor of the restricted section. He injured his knee and his shoulder. 10A customer of the shop came down to help him and a member of staff, Margaret Bridge, also came to his aid. An ambulance was called. Two ambulance officers arrived and went down the stairs to Mr Dailhou. They helped him up and he walked back up the stairs. He said that he was unable to use the hand rail which was on the right of the stairs going upwards because he had injured his shoulder. However, he said that one officer supported him from the back and another took his left hand and helped him upstairs. They transported him to Royal Prince Alfred Hospital. On presentation he complained of right shoulder pain over the proximal humerus. An x-ray of his right shoulder was ordered. He remained under observation until the next morning, when he was given Panadeine Forte and discharged at 8.30 am to return to his hotel. 11That evening Mrs Bridge called Mr Kelly to tell him what happened. She made a contemporaneous note of the incident in which she recorded: "About 6.15 pm. A man fall down the stairs, front way from the top. He told me he was look at a book. He told us he was Diabetic. He name is Pete Dailhou. Age 53. Maybe a fractured arm. Car 425 of Sydney Ambulance Center. The Ambulance took the man to R.P.A. I don't see the Pete fall down the stairs. I was at the front of the shop." 12When Mr Kelly arrived he entered the bookshop through the lower entrance and came up the stairs to the ground floor and went to the counter where he spoke with Mrs Bridge for about fifteen minutes. She gave him the incident report she had prepared. Mr Kelly did not return to the landing with Mrs Bridge to inspect the site of the fall. He did not pay any particular attention to the moveable shop fittings that were there at the time. 13The way in which Mr Dailhou fell and the place from which he fell were in dispute. As no one witnessed the fall, the resolution of these questions depended, in the main, on Mr Dailhou's own evidence, which was neither consistent nor reliable. The first recorded version given by Mr Dailhou, which he gave to Mrs Bridge, is that he fell "front way from the top". Mr Dailhou subsequently reported at various times that he fell backwards down the stairs. Indeed, his counsel opened his case on that basis, as the following extract shows: ". . . the plaintiff had the misfortune of walking across looking on to the wall facing down the staircase, which was then full of a display of books, when he took a step backwards and found that he was going down the staircase." 14In his evidentiary statement dated 22 November 2012 he said: "After looking at one of the bookshelves I took a step to turn around when without warning I fell." 15However, in cross-examination he said that he turned around from one bookshelf and ended up facing the staircase. He said that he fell from the top of the stairs, but later said that he may have fallen from one of the lower stairs. 16What occurred immediately before the fall is not clear. Mr Dailhou was cross-examined about what he was doing before he fell. Before the luncheon adjournment, he was asked to draw a map of the bookshop and mark his path from the entrance to the stairs. He drew a diagram that showed him walking up an aisle away from the area where he fell, turning left, walking past the stairs that went upwards and then walking across towards the landing, entering the landing and then falling at a point marked 'x'. This document was tendered. However, after the luncheon adjournment, when the document was shown to him again, Mr Dailhou said that it was not correct and drew a significantly different path to the one he had originally drawn. On the second version he indicated that he had walked straight along the bookshelf along side the downward stairway. Mr Cavanagh SC, who appeared with Mr Callaway for the defendants, cross-examined Mr Dailhou about the reason for the change in the following passage: Q. When did it come to you that, contrary to what you had drawn in your diagram an hour and a half ago, you had in fact been walking up an aisle closest to the staircase? When did that come to you? A. Look, over lunch I was just sitting there thinking to myself. I said, "Hello, this guy is going to pull out a film out of me wandering around the book shop". That's exactly what I did. I wandered around that book shop. I didn't just go straight to that corner and fall down, no. Q. You thought I would be pulling out film of you wandering around the book shop, did you? A. It is just one of those things that might have occurred, yes. 17The second version was, however, not endorsed by Ms Welsh, who appeared for Mr Dailhou, who put the first version (presumably on instructions) to Mr Kelly in cross-examination. Although I do not consider the differences between the first and second versions to be particularly germane to liability, they do affect my assessment not only of Mr Dailhou's credibility but also of the credibility of his case. 18Nor was Mr Dailhou's evidence about where he was when he fell and whether he fell from the landing at the top of the stairs or whether he put a foot on any of the stairs consistent. Although uncertainty can sometimes be the product of subsequent trauma, I consider that, in the present case, Mr Dailhou was trying to give himself sufficient latitude to preserve his credibility in case the defendants had some CCTV footage of what actually happened, a possibility that had occurred to him over the luncheon adjournment and had caused him to alter his evidence. 19The photographs in evidence showed that, on the landing on the wall to the left of the stairs leading upwards, there was a bookcase. Opposite the bookcase, there was a flight of stairs leading downwards. On one side of the stairs there was a bookcase that formed part of the perimeter of the stairwell and there was a wall on the other side. None of the photographs in evidence was taken on the day of the incident. Mr Dailhou said that there was a bookcase in front of the panel on the landing that curtailed the area of the landing. Mr Kelly said that sometimes there was a bookcase opposite the downward stairs which was inset above that panel but not in front of it. I do not understand Mr Kelly to have any real recollection as to whether there was a book case there on 25 June 2007. At all events, a person looking at books in a book case in that area would necessarily have his or her back to the downward stairs. 20Mr Dailhou was cross-examined about the photographs he had taken when he returned to the store a few weeks after the accident for that purpose. He said that the scene they depicted was less cluttered than it had been at the time of his fall. Nonetheless the photographs show that adjacent to the stairs that led up from the ground floor to the first floor there was a bookcase, opposite which there were stairs that led down to the lower ground floor, where the restricted books and sex toys were located. I accept that the photographs substantially depict the layout of the bookshop and bookcases at the time of the fall. I do not accept Mr Dailhou's evidence that the bookshop was less cluttered when the photographs were taken than it had been when he fell. However, even if this were so and there were books on the landing, this does not assist his case since his case is not that he tripped on anything or that he was distracted by something on the floor of the landing. Indeed, it is reasonable to infer that if there were items on the landing his attention would have been drawn even more to the presence of the stairwell, than it was in any event by the presence of the landing and the general layout of the area. 21I do not accept Mr Dailhou's evidence that there was a bookcase opposite the downward stairs that curtailed the floor area on the landing. If there was a bookcase there I accept that it was above the panel and did not diminish the floor area of the landing. In my view the area of the landing was more than sufficient to allow a person perusing books opposite the stairway to turn around safely without encountering the top step. 22Mr Dailhou's evidence was that he fell in an uncontrolled manner from the landing or the top step down 18 steps (which was the number he later counted) to the bottom. He said, ultimately, that this had happened because he had been looking at the books in the case opposite the downward stairs and had turned around, not appreciating that there was a stairwell there, had missed his step, and fallen down the stairs. He said: "I was shuffling along like so, looking at books and things like that. Came to the end where there is a book shelf there. I turned around expecting another row of shelves like so, and it wasn't. Down I went." 23However he admitted in cross-examination that he had looked to the left (in the direction of the downward stairs). He said: "I was looking towards the left which came to a wall of books. I then did an about-turn expecting that the shelves continued behind me." 24It is difficult to know from this evidence whether Mr Dailhou in fact looked to the left or whether his answer was merely an instinctive refutation of the insinuation that he had not taken adequate care for his own safety. Although statements against interest tend to be credible, Mr Dailhou demonstrated that he was anxious to resist any possible criticism and to justify every aspect of his conduct. However, on the basis of his admissions, I accept, on the balance of probabilities, that Mr Dailhou looked to the left before he fell. In these circumstances I infer that he saw both the stairwell and the downward stairs. However, even if he had not looked to the left, I am unable to accept that he was not aware of the stairwell and the downward stairs, which were, in my view, obvious features of the store. 25I accept the opinions of the orthopaedic experts (given orally in the course of concurrent evidence) that, although the mechanics of falling are such that it might be expected that the plaintiff would have sustained more serious and widespread injuries, the nature and extent of his injuries are not inconsistent with his having fallen a considerable distance down a flight of stairs. 26On the basis of the defendants' admission to the following paragraph in the statement of claim, I accept that: "On or about the said date [25 June 2007] at approximately 5.45 pm whilst browsing on the ground floor of the bookshop, the plaintiff fell down a flight of stairs connecting the ground floor and the basement of the said bookshop." 27There are various hypotheses that could explain Mr Dailhou's presence on that lower level, accepting (as is common ground) that he fell at least some part of the way down the stairs, including the following: (1)he decided to go down and browse there, knowing the nature of the items located there and fell, once already on the stairs; (2)he decided to go down there for some other reason and fell, once already on the stairs; or (3)he fell from the level above, not appreciating that there were stairs there and not intending to descend the stairs. 28Mr Dailhou's case is (3) above and he bears the onus of establishing it on the balance of probabilities. There is no relevant criticism of either the stairs or the handrail. As his case developed in the course of the hearing I understood it to be that he was not aware of the existence of the stairs at all when he turned around 180 degrees and was so close to the edge of the stairs that he lost his balance and fell. 29I am not satisfied of Mr Dailhou's case to the requisite standard or that Mr Dailhou fell in the manner described. In particular, I am not satisfied that he fell from the landing or the top step or, as I have found above, that he was unaware of the presence of either the stairwell or the stairs. 30Mrs Bridge was not called to give evidence. Ms Welsh, who appeared on behalf of Mr Dailhou, objected when Mr Cavanagh asked Mr Kelly whether he knew where she was. Mr Cavanagh did not press the question in light of the objection. Ms Welsh ultimately submitted that I ought draw a Jones v Dunkel ((1959) 101 CLR 298) inference against the defendants by reason of their failure to call Mrs Bridge. Since the fall was unwitnessed Mrs Bridge could not have given evidence of it. Although she may have been able to give evidence of the layout of the store at the relevant time, it may be doubted whether she would have been able to remember the position of particular bookcases on a landing on a particular day. 31Mr Dailhou commenced the proceedings on 25 June 2010, the third anniversary of his fall. There is no evidence that the defendants had been notified that there would be a claim earlier than the date of service of the statement of claim on 5 July 2010. Even if Mrs Bridge's absence was unexplained, the Jones v Dunkel inference that her evidence would not have assisted the defendants' case would rise no higher than that she could not be expected to recall the layout after such a passage of time. I do not consider it appropriate to draw the inference in light of Ms Welsh's objection to Mr Cavanagh's question. However, in any event, the inference, even if drawn, would not have affected any of my findings. The period following the accident 32Mr Dailhou was unable to give consistent evidence about when he returned to work following the fall in June 2007. A chronology which he had apparently checked on a number of occasions was handed up in opening. It was not verified by Mr Dailhou in the witness box. When Mr Cavanagh cross-examined him about it he disagreed with some of the entries, including how long he had remained off work after the fall in the bookshop. His evidence was that he had returned to work because the workers compensation insurer had stopped paying him. However, in final address, his counsel, Ms Welsh, confirmed that he had returned to work three days a week (which was what he was working before the fall) at the end of September 2007 and had worked, albeit with difficulty, and then had taken time off from the end of October 2007 for the rest of the school year, as is recorded in the chronology. 33In cross-examination, Mr Dailhou admitted that he had gone on an overseas trip to Japan, London and Orlando in the United States in the 2007/ 2008 Christmas school holidays. The purpose of the trip was to promote the businesses he conducted outside his employment as a teacher. The cost of the trip was claimed as a business expense. For the 2008 financial year (immediately following the accident), Mr Dailhou claimed expenses of $34,874 which were described in his tax return as "travel, accommodation and conference expenses". This figure is substantially larger than the figures for the same item for earlier years ($22,458 for 2005, $8,808 for 2006 and $1,007 for 2007) and was in the order of 20% of gross sales for that year. Mr Dailhou accepted that by the end of 2007 he was fit for work because he was fit to travel overseas to promote and develop his businesses. These concessions are to be contrasted with the evidence in Mr Dailhou's written statement to the effect that after the fall he was unable to travel, which I regard as deliberately false. 34Mr Dailhou could not be certain in his oral evidence under cross-examination what other conferences he had attended or what other overseas travel he had undertaken in the years following June 2007. He said that he had been to Malaysia in 2012 for a conference and that he had been to China in July 2013. I do not accept as genuine his evidence that he could not recall further detail about his travel arrangements. 35In July 2009, Mr Dailhou injured himself when a child climbed between his legs and he grabbed a table to support himself. At that time he was working full-time doing what he described as Relief Face to Face teaching. He had some time off work. Some time afterwards he returned to work. He had an arthroscopy on his right shoulder on 7 December 2009 which was performed by Dr Cass. According to the chronology, the accuracy of which was confirmed by Ms Welsh in final address, Mr Dailhou returned to full-time teaching in late 2009. About a fortnight after the operation, shortly before Christmas, he was at McDonald's in December 2009 when he tripped over a tile and ruptured his quadriceps muscle on the left knee. I accept that this was a relatively minor injury. 36Mr Dailhou returned to full-time work in the new school term in 2010 (according to admissions made in the chronology). He agreed that he worked full-time for most of the 2010 financial year. On 25 August 2010, he suffered relatively substantial injuries when he fell again as a result of impact with a student, which caused him to fall forward. On this occasion he damaged both sets of quadriceps and also the right shoulder. In 2011 there was a further incident, in which he injured himself in a classroom when a chair on which he was sitting slipped away from him. On 2 September 2011, he was knocked over in the playground by another student and fell on both hands and both knees. 37He stopped work in early 2014. He said that the principal at the time had explained to him that there was a method by which he could access his existing extra sick leave and use up his long service leave. He was still on leave at the time of the hearing. 38Presently Mr Dailhou continues to operate his own businesses, although at a diminished level, as far as the tax returns to 2013 revealed. Mr Dailhou's credibility 39It will be apparent from observations made throughout these reasons that I regard Mr Dailhou as an unreliable and, at times, dishonest witness. There was a very substantial discrepancy between his case in chief and what emerged during cross-examination. In chief, the picture he painted of himself was of a seriously debilitated man whose physical capacity had been substantially compromised by the fall in June 2007 and subsequent traumas, which he related to the original fall. As referred to above, it emerged in cross-examination that, about six months after the fall, he had travelled around the world to promote his own businesses and expended a considerable amount of time, money and energy in the process. This evidence was inconsistent with his evidence in the statement that he prepared for the purposes of the proceedings in which he said, of his other business interests: "Because of my inability to travel and to present, income has ceased." "I was unable to travel and to conduct training and workshops." 40Mr Dailhou maintained that he had fractured his wrist in the fall although he agreed that the pain in his wrist did not become apparent until a week or two after the fall. He sought to explain the delay by reference to the quantity of painkillers that he was taking. The joint experts were unanimous that he had not fractured his wrist. The contemporaneous hospital and clinical notes do not record any such injury. 41Other matters have contributed to the adverse view I have formed of Mr Dailhou's credibility. Mr Dailhou said in evidence that he had used crutches for six to eight weeks after they were issued to him shortly after he returned to Taree after the fall. When he was cross-examined about this he retreated somewhat and intimated that he did not use them much because he did not do much walking in that period and did not have "a great deal of mobility". Ms Welsh accepted that there was no reference in any of the medical reports or clinical notes in evidence to his having been issued with crutches, or that he ever used them. 42In my view Mr Dailhou exaggerated the injuries sustained in the fall and lied about his use of crutches in order to give verisimilitude to his version that he had fallen down the whole flight of stairs and suffered permanent injuries. I do not accept that he fractured his wrist in the fall or that he needed to use, or in fact used, crutches during the six to eight week period after the fall. 43Furthermore it was revealed for the first time in cross-examination that Mr Dailhou goes to the gym every day to do aqua-aerobics or ride a stationary bike in order to retain fitness and strength. What had been disclosed in chief was that he did hydrotherapy. I do not accept his oral evidence that he has not ridden a bicycle since the fall in June 2007. I accept as accurate the history that Dr Echano recorded at a consultation on 3 March 2014 that Mr Dailhou had fallen from his bicycle a week before. I do not accept Mr Dailhou's explanation given in the witness box that he had fallen against a stationary exercise bicycle and hurt his hand. His capacity to invent such an explanation on the spot demonstrates his facility for self-justification at the expense of the truth. 44Mr Dailhou gave evidence in cross-examination that every year from 2004 until 2010 he had provided forms to the Department of Education in which he had declared that his outside business interests did not occupy him for more than ten hours a week. These declarations (including one signed by him dated 11 November 2008) were contrary to the statement contained in his amended statement of particulars dated 18 November 2011 that on the other two days a week (other than the three days he was working) he attended to his other business interests. He explained in his cross-examination that he would work for the Department of Education on Monday, Tuesday and Wednesday and then run a programme of courses on Saturday. He would spend Fridays, and possibly also Thursdays travelling to the location of the courses and setting them up. I do not accept this statement. However, Mr Dailhou adhered to it in his cross-examination and accepted that the gross sales recorded in the tax returns were earned by him on the basis of less than ten hours work a week. This is another aspect of Mr Dailhou's evidence which I found to be unsatisfactory. I do not regard the declarations made to the Department and those made in the particulars as being reconcilable. Their inconsistency reflects adversely on Mr Dailhou's credit. I consider him to be someone who is prepared to make statements by reference to his perception of where his interest lies, irrespective of their truth. 45Mr Dailhou also said in his written statement of evidence: "The accident on 25 June 2007 and the subsequent accidents have had a terrible affect [sic] on our financial position. We had to sell the premises which we were using for our business activities and we have had to sell our home." 46The evidence extracted from Mr Dailhou's tax returns as to his income from the Department of Education and also from his outside business interests which is set out below is inconsistent with the statement attributing the sale of his properties to the incident in June 2007. I regard this as another instance of Mr Dailhou telling a version which is untruthful for the purposes of advancing what he perceived to be his interests at the time. Mrs Dailhou's credibility 47Mrs Dailhou gave her evidence in a circumspect way. Her evidence in her written statement was general and does not permit a comparison to be made between the amount of time she spent doing domestic duties before June 2007 with the amount of time she spent afterwards. She said that she could not remember which, if any, conferences she attended with Mr Dailhou. I gained the impression that her vagueness was engendered, at least in part, by a concern that any definite answer might compromise her husband's case. Liability Reasonable precautions: the duty and standard of care 48My factual findings are sufficient to dispose of liability. Mr Dailhou has not proved his case since he has not proved how, or why, he fell. However because of the detailed submissions made by the parties as to the operation of the Civil Liability Act 2002 (NSW) I shall address its operation by reference to the circumstances of the present case. 49Mr Dailhou's case as pleaded in the particulars of negligence was, in substance, that the defendants' duty to take reasonable care for his safety: (1)required the defendants to rope off the landing above the staircase so that customers were not at risk of falling downstairs; and (2)was breached by displaying books and videos in the area surrounding the stair well as to lead the plaintiff to believe that it was safe to enter the landing proximate to the stairs. 50Mr Dailhou eschewed reliance on the particulars of negligence which alleged that a sign indicating the stairs should have been placed in the store. This concession was, in all the circumstances, appropriate since someone who does not notice a stairwell is hardly likely to see a sign. 51The risk of a person falling downstairs is a foreseeable risk of harm, which is not insignificant. I do not accept that a reasonable person in the defendants' position was required to curtail entry to the landing area. The stairwell was an obviously open area. It was not in any material way concealed. Any customer would only have had to make a cursory inspection of his or her whereabouts to become immediately alerted to the presence of the stairwell. The kinds of barriers that may be required to prevent toddlers from falling down stairs are not reasonably required in a book shop such as the one owned and run by the defendants. I do not regard the risk of someone falling down the stairs in this bookshop because he or she did not realise that they were there to be significant or to require the taking of any further precautions. Any person (other than a small child who was not adequately restrained) taking reasonable care for his or her own safety would have been well aware of the presence of the downward stairs. 52I accept that the chain that was, from time to time, put in place to prevent access to the lower ground floor was intended to deter persons from leaving the store through that exit since there was no counter or register there at which customers could purchase merchandise and, at least at the time Mr Dailhou was there, only one member of staff was present in the store. But for this circumstance, there was no reason to deter persons from browsing any books displayed on or near the landing, or from descending the stairs to look at the books on the side of the stairwell beside the stairs, or indeed in the restricted books section. 53I do not accept that the requirement to take reasonable precautions included a requirement to denude the area surrounding the stairwell of merchandise. I am not persuaded that the videos placed on one side of the wall on one side of the stairs concealed the presence of the stairs. Nor do I consider that, had there been a display bookcase directly opposite the stairs, it would have concealed the existence of the stairwell. It may be accepted that books can be engrossing and that one may forget oneself when looking at books or browsing in bookshops. Indeed this is one of the attractions of such establishments. Nonetheless, booksellers are not obliged to arrange their shops on the basis that their customers will be so mesmerised by the merchandise that they will neither lift their eyes from the displays to look around them to see where they are going nor observe the obvious layout of the store. 54Mr Dailhou placed some reliance on the fact that Mr Kelly had installed a sign after the event, enjoining customers to use the handrail. The posting of a sign concerning the handrail would not have had any causal connection to Mr Dailhou's fall. I accept Mr Kelly's evidence that he put it there because someone had fallen and he did not want anyone else to fall. The defendants emphasised that Mr Kelly was not aware of anyone falling down the stairs before. The absence of previous falls is some indication that further precautions did not need to be taken, but it is a matter of limited weight in the circumstances of the present case: Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; 160 CLR 301 at 309. Conclusion 55Mr Dailhou has failed to establish why he fell or that there was any relevant negligent act or omission attributable to the defendants that caused him to fall. Damages 56Notwithstanding my findings on liability I am obliged to make findings on damages. I do not propose to quantify the damages since such calculations would be hypothetical. However my findings will be sufficient to enable such calculations to be performed if required. Injuries sustained in the fall in June 2007 and subsequently 57The findings concerning the injuries sustained by Mr Dailhou and the effects of those injuries are substantially derived from the evidence of the joint experts who met in conclave, prepared a joint report and, with the exception of Mr Schutz, gave concurrent evidence at the hearing. The experts were: (1)Mr Edward Schutz (orthopaedic surgeon qualified by McDonald's, the defendant in other proceedings that were resolved by consent); (2)Dr Gregory Burrow (orthopaedic surgeon qualified by the defendant, who specialises in shoulders); (3)Dr Bruce Caldwell (orthopaedic surgeon qualified by the defendant, who specialises in knees); and (4)Dr James Bodel (orthopaedic surgeon qualified by the plaintiff). 58In the fall in June 2007 Mr Dailhou sustained an undisplaced fracture of the humeral head of the shoulder with comminution involving fractures of the greater and lesser humeral head tuberosities. Apart from a very minor anomaly of a peripheral part of the articular cartilage, the humeral head articular cartilage was intact. 59The experts agreed that the fracture to the right humeral head was not particularly severe and that there was no real evidence for the suspected avascular necrosis of the humeral head. Although Ms Welsh sought to challenge in cross-examination the joint view of the experts regarding avascular necrosis in the course of concurrent evidence, their answers indicated their views, which I accept, that, although avascular necrosis was suspected by the treating doctors, it was not present. I accept the evidence of Dr Burrow that the type of shoulder fracture which Mr Dailhou sustained in June 2007 does not lead to avascular necrosis and that the radiology reports are not typical of avascular necrosis. That Mr Dailhou responded positively to bisphosphonate does not establish the presence of the condition since it is designed to treat bone pain and is not a recognised treatment for avascular necrosis. Neither the placebo effect nor the effect of litigation ought be disregarded. 60I accept Dr Burrow's evidence that the injury sustained to his right shoulder in June 2007 did not make Mr Dailhou vulnerable to exacerbation and further injury, since the fracture has healed. Rather, subsequent injuries to his acromio-clavicular joint and his superior labrum and the rotator cuff tear have rendered his shoulder vulnerable. 61The experts agreed that Mr Dailhou's left knees suffered an abrasion. Dr Caldwell considered that, on balance, the left patella had sustained a rim fracture. The left knee did not warrant mention in the hospital notes and was not such as to prevent Mr Dailhou climbing the stairs immediately after the fall. The experts agreed that Mr Dailhou's left knee had fully recovered from this injury. Drs Burrow and Caldwell opined that the fall in June 2007 did not render him susceptible to future falls. Although Dr Bodel considered it to be a possibility that he had been rendered more susceptible to falls by the June 2007 fall, he did not consider it to be likely. 62The experts agreed that when Mr Dailhou fell at McDonald's in December 2009, he suffered a rupture of the left quadriceps muscle/ tendon from its attachment to the patella but that this was the only injury, or the only injury of significance. I accept the opinion of Dr Caldwell that quadriceps ruptures usually occur in middle aged to older men who miss a step or go down a set of stairs or jump off something and land awkwardly. The quadriceps ruptures because the tissues are abnormal. I accept that this condition is entirely separate from the rim fracture of the patella sustained in the fall in June 2007, which did not render Mr Dailhou more susceptible to a quadriceps rupture. I note that Mr Dailhou had fallen at home in May 2006 and ruptured his right knee quadriceps, which was repaired at Taree Hospital and he returned to work. 63The experts considered that Mr Dailhou sustained the following injuries in the further incidents that are referred to above: Date Event Injury 25 August 2010 Grabbed rail and fell onto both knees Additional injury to right shoulder and a medial meniscus tear for which he had a partial medial meniscectomy. July 2011 Slipped off chair No significant injury September 2011 Slipped off chair and fell backwards New symptom of lower back pain. December 2011 Fell backwards in the playground No substantial additional injury but symptoms in both shoulders and both knees and low back. Attribution of current condition to various incidents and underlying conditions 64The experts considered that the fall in June 2007 accounted for 70% of the current condition of Mr Dailhou's right shoulder. They considered that he had fully recovered from the rim fracture to the patella and that therefore there was no continuing disability to the knee as a result of the fall in June 2007. The experts did not consider that the injury to Mr Dailhou's right shoulder contributed to any subsequent incident or injury occasioned in the subsequent falls. In particular they did not consider the shoulder injury to have affected Mr Dailhou's balance. Dr Burrow explained that Mr Dailhou had "a quite generous range of motion" in the shoulder joint. In so far as there was arthritis present in the right shoulder, I do not accept Ms Welsh's submission that it can as a matter of "common sense" be wholly attributed to the June 2007 fall. I consider it to be sufficient for present purposes to accept the figure of 70% referred to above, as being the percentage contribution of the June 2007 to Mr Dailhou's current shoulder condition. 65The experts considered that the shoulder injury sustained in June 2007 created a need for care which was 50% of the total need for domestic care and assistance of 3-4 hours a week and gardening of 2 hours per fortnight. Therefore they considered that the shoulder injury sustained in the fall in June 2007 created a need for domestic care of 1 1/2- 2 hours a week and for gardening of 1/2 an hour a week. 66They considered that all the effects of the fall in McDonald's in December 2009 had passed. 67They considered that the incident in August 2010 caused significant injuries to the right shoulder and left knee and that subsequent incidents had affected his walking range. The experts referred to Mr Dailhou's pseudogout (revealed on arthroscopy) and obesity as being relevant to continuing knee symptoms. 68Dr Cass, Mr Dailhou's treating orthopaedic surgeon, considered that Mr Dailhou sustained a new and substantial injury to his right shoulder in the August 2010 incident. 69The experts considered that Mr Dailhou was not fit for playground duties, because of the risk of his falling on asphalt. This unfitness is not related to the injuries sustained in June 2007 but arises from the unrelated instability in his knees. They also considered that, although he could lift weights of up to 10 kgs, he would not be able to lift them to shoulder height without exposing himself to the risk of further injury. They also opined that writing on a blackboard or whiteboard at a height would be contraindicated. They did not, however, consider him unfit for work as a teacher, although his capacities were limited in the respects set out above. In the following passage Dr Caldwell (who did not consider any of his current knee problems to be related to the June 2007 fall) said: "I think there's a number of degenerative diseases affecting his knees including patellofemoral arthritis. He's got arthritis in the medial compartment of his knees which is degenerative and due to his life's experience, and not related to any of this, and he's had two ruptures, he's had a ruptured right quad and a ruptured left quad, all of which give him not excellent knee function. But it is not the sort of knee function that stops you doing anything in your life. I have hundreds of people with injuries way worse than this who are, you know, functional members of the community doing good jobs." 70Although the joint experts considered that Mr Dailhou might need a shoulder replacement in the future, they did not consider that the injury sustained in June 2007 would be what caused him to require such surgery, which would be due to other causes, including the subsequent labrum injuries, cuff disease and other injuries from 2010 onwards. 71I accept the opinions of the experts that are summarised above. I do, however, note and accept what Dr Bodel said in the following passage about the difficulties of attributing causation to particular incidents: "This is an incredibly difficult thing you're trying to slice and dice this like a piece of salami into various events at particular times. We have been asked to assume that this person was treated for a non-existing form of avascular necrosis. That's one line of it, but nobody at any stage indicated whether if it was there, was it caused by the original event. That was never tested in the questions asked of us, and that's an important thing from a causation thing of the medical cause of what's happened. We here have a piece of evidence from the treating doctor indicating that there is an abnormality seen that is not - is seen visually at the time of arthroscopy which is not yet evident upon the plaintiff's side. How or when that occurred is a very difficult question. I'm not sure I can answer it." Non-economic loss 72Ms Welsh contended that he should be assessed within the range of 30 to 45% of a most extreme case. The defendants submitted that the appropriate range is 25 to 28%. 73Mr Dailhou suffered pain and some restrictions as a result of the fall in June 2007 and the associated injuries. The injury to his knee has recovered. His right shoulder has substantially healed but continues to trouble him (in part because of subsequent injuries) although he has a good range of movement. He underwent an operation to his shoulder in late 2009. As referred to above, the experts accept that 70% of his present shoulder condition can be attributed to the fall in June 2007. The fact that he was able to travel around the world on a business trip about six months after the fall is a powerful indication that its effects were substantially self-limiting, apart from the pain and difficulties with his shoulder. I accept that the difficulties with his shoulder affect his sleeping, although I do not consider that it is as bad as Mr Dailhou would have me believe. 74I assess his non-economic loss at 25% of a worst case. Claim for economic loss 75Mr Dailhou's tax returns showed the following for the financial years from 2004 until 2013: Financial year Gross income Dept of Education (incl workers comp) Tax withheld (PAYE) After-tax income from teaching Gross income from other businesses Net loss from other businesses Tax paid 2004 34,338 9,060 25,278 391,513 128,867 0 2005 18,772 4,312 14,460 504,829 37,221 0 2006 52,215 12,570 39,645 269,529 101,773 0 2007 63,980 15,676 48,304 214,204 66,973 0 2008 62,568 14,698 47,870 170,294 67,943 0 2009 81,297 20,132 61,165 128,278 137,999 0 2010 81,539 19,836 61,703 61,605 108,610 0 2011 96,478 25,486 73,109 61,566 53,973 0 2012 89,023 27,734 61,597 12,672 39,447 0 2013 80,399 19,596 60,803 67,038 44,816 0 76In 2004 Mr Dailhou worked on what was termed a deferred salary scheme. In 2005 and 2006 he took considerable periods of long service leave to develop his other businesses. In 2007 he decided to work three-days a week, with a view to retirement from teaching with the Department in 2009. Mr Dailhou received workers compensation payments by way of income of $5,386 (2009) and $7,351 (2010). The evidence does not show the amounts received for other years. Mr Dailhou accepted that for most of these years, the level of workers compensation payments and his income from the Department indicated that he had substantially worked full-time for those years. 77The evidence established the following: (1)The gross income from Mr Dailhou's other businesses was decreasing from 2005. (2)Mr Dailhou's other businesses never traded profitably, notwithstanding considerable income from gross sales. Indeed the losses from those businesses were of a magnitude to have the effect that Mr Dailhou did not pay any income tax (since the tax withheld was remitted to him as a refund), either because of present losses or losses that were carried over from past financial years. (3)The income Mr Dailhou earned from teaching increased after the fall in June 2007 and remains at a significantly higher level than at that time. (4)Mr Dailhou travelled extensively in January 2008 and claimed the expenses of such travel as business expenses. (5)Invoices referable to lawn mowing, which were submitted to the workers compensation insurer for reimbursement, were addressed to "Max Learning", one of Mr Dailhou's outside businesses. (6)Mr Dailhou claimed expenses relating to his home, such as lawn mowing expenses, as business expenses in his tax returns on the basis that he was operating his various businesses from home. 78Mr Dailhou's claim included a claim for loss of the opportunity to become a school principal. He had acted as a school principal at Hannam Vale Public School from 2001 to 2002 and contended that he would, but for the fall, in June 2007, have become a school principal, or had such an opportunity. 79Mr Dailhou's personnel file also contained records of complaints made about him and incident reports relating to his conduct. Mr Dailhou admitted in oral evidence that "many" complaints had been made about him over the years. None of these complaints has been made out. However the documents show that, given the adverse view taken of him by the principal, Mr Roberts, and other staff members at the school where he worked, it was unlikely that he would ever be promoted beyond his level at the time of the accident. The defendants relied on Mr Pickering, an experienced school principal, who opined that Mr Dailhou was highly unlikely to be promoted to the position of principal. I accept Mr Pickering's evidence that the material provided to him indicated that Mr Dailhou had neither the temperament nor the commitment to public education required for appointment to the position of principal. Accordingly, I am not satisfied that the opportunity of Mr Dailhou's becoming principal was a real one, or that the fall in June 2007 had any material effect on that opportunity. 80The parties tendered a joint statement of Messrs Shields and Katehos, experts on the issue of economic loss, in which the alleged loss of income on various scenarios has been calculated. Mr Dailhou has also relied on schedules of economic loss which were also the subject of explanation during oral submissions. 81Mr Dailhou gave evidence that, but for the fall in June 2007, he would have continued with his outside businesses and that, if by 2009 they were not profitable, he would have returned to full-time teaching. I do not accept this evidence but, in any event, that appears to have been what he has done anyway, notwithstanding the fall. 82Mr Dailhou bears the onus of proof of loss. I am not satisfied the injuries he sustained in the fall in June 2007 caused any permanent diminution in his earning capacity. The injuries caused him to sustain economic loss for the period following the accident and a short period during which he had shoulder surgery and was recovering from the surgery. It is not necessary for me to make findings about particular periods of incapacity in 2007, 2008, 2009 and 2010 since the defendants concede that Mr Dailhou has suffered an economic loss as a result of the fall in June 2007 which is equivalent to the workers compensation payments he received during that period which amount to a gross figure of $37,706.18, of which he would, if he were entitled to damages, be entitled to the corresponding net figure. 83Mr Dailhou submitted that he was entitled to be reimbursed for the income referable to days he took as sick leave and long service leave during this period. To the extent to which he gave evidence that he took such leave as a result of injuries sustained in the fall, I do not accept his evidence. There is no other evidence linking the leave days with the injuries. It is reasonable to infer that the workers compensation insurer did not regard them as being associated with the fall or else he would have received compensation for these periods, rather than taking leave. Accordingly, I am not satisfied that income referable to the leave days ought be included in his damages for past economic loss. 84I am not satisfied that any of his absences from work after the fall in August 2010 are attributable to the fall in June 2007. Accordingly, I am not satisfied that Mr Dailhou has suffered any past economic loss other than that conceded by the defendant referred to above. 85I am not satisfied that Mr Dailhou is entitled to an award for future economic loss. Although he is limited in some limited respects by the residual impairment of his shoulder (writing on a board at shoulder height and carrying weights at height) I do not accept that this will be productive of economic loss. I am not satisfied that the injuries he sustained in June 2007 prevent his working full-time as a teacher or indeed conducting his outside businesses. But for the fall I do not think that it is likely that he would have worked other than as a teacher in a public school. Claim for damages for domestic assistance 86Mr Dailhou's wife has substantial health problems arising from scoliosis. She took long service leave from August 2008 and retired from work in 2009. I do not accept that she stopped work to help Mr Dailhou. I accept her evidence that she did not retire on medical grounds. Mr Dailhou's evidence about the tasks he performed around the house was unsatisfactory. For example when asked in cross-examination to identify the sorts of things he had been doing for his wife he answered: "Um, all the normal sorts of things." 87I accept Mrs Dailhou's evidence that for the first couple of years after the accident she worked long hours and was not available to assist her husband. I also accept that, before the fall, she did most of the domestic tasks. 88All that can reasonably be concluded from their evidence on the topic of care is that Mr Dailhou and his wife have looked after themselves adequately since his fall. Their younger child left home in about 2009. Both children live away from Taree. They have not paid anyone to provide domestic care inside the house. Although the joint experts have opined that there is a need for care arising from the fall in June 2007, I do not accept this to be the case because of Mr Dailhou's evidence and that of his wife. As Allsop P said in Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 at [52] (Campbell and Meagher JJA agreeing), the number of hours one person spends providing services to another is a question of fact, rather than a matter that can be measured by reference to an objective standard or expert opinion. Mr Dailhou has failed to establish the factual basis for an entitlement to an award for gratuitous domestic care either for the past or for the future under s 15 of the Civil Liability Act. 89In so far as there is a need for outside assistance with lawn mowing and the like, I am not satisfied that the need was caused by the fall in June 2007. Mr Dailhou was cross-examined about the invoices he produced to support the claim for past commercial services. He admitted that the invoices shown to him in cross-examination, dated 19 January 2008 and 30 January 2008, relating to his swimming pool also contained amounts for pool chemicals. The time at which the work was done corresponds broadly with the time Mr Dailhou was away overseas on a business trip. The only other invoice referred to was an invoice dated 25 June 2009 for mowing the lawn, which, as referred to above, was claimed as a business expense by one of Mr Dailhou's businesses. I am not satisfied on the balance of probabilities that the need for these services was created by the injuries sustained in the fall in June 2007. Since Mr Dailhou was able to travel around the world, I am not satisfied that he could not clean his pool or mow the lawn. 90Mr Dailhou claims damages for domestic care on a commercial basis for the future. I note the agreement of the parties that the appropriate rate is $40 per hour. I am not satisfied that any assistance he might require for domestic tasks arises solely, or indeed at all, as a result of the fall in June 2007, from which he has largely recovered. Out-of-pocket expenses 91The past out-of-pocket expenses have been agreed between Mr Dailhou and the defendants as amounting to $50,000 for the past, comprising $45,000 for medical expenses up to August 2010 and $5,000 from August 2010 to the present. 92Mr Dailhou is no longer taking pain-killing medication. If he requires a shoulder replacement in the future, it will not be because of the fall in June 2007. I am not satisfied that the physiotherapy, hydrotherapy and medical consultations are wholly, or even substantially, referable to the June 2007 incident, in light of all his other physical problems. Nonetheless, given the experts' attribution of 70% for the right shoulder, some allowance for future out-of-pocket expenses ought be made. The agreement as to the past referred to above reflects an amount in recent years of approximately $1,000 per year, or about $20 per week. On the assumption that the last few years are a reasonable guide to the future (the more acute consequences of the injury having passed), I assess quantum for this head at $15,000. The recovery claim by the State against the defendants 93Section 151Z of the Workers Compensation Act 1987 (NSW) relevantly provides: Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: . . . (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, . . . (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), 94The State claims indemnity in the sum of $131,221.51, together with interest in the sum of $43,201.86. The figure of $131,221.51 comprises amounts for weekly payments, top-up pay of $37,706.18 (gross) and expenses for medical treatment. There is no dispute about the amounts for weekly payments and top-up pay. There is an issue that will be addressed below about medical expenses. 95It is common ground that the fall in June 2007 occurred in the course of employment and that the State has paid compensation under the Workers Compensation Act 1987 to Mr Dailhou in respect of the injury sustained by the fall. By reason of s 151Z, had I found the defendants to be liable to Mr Dailhou, the State would have been entitled to recover the amounts of compensation, subject to any deduction for contributory negligence (s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)). 96As the amounts for weekly payments referable to the June 2007 incident ceased in February 2010, there is no issue relating to the attribution of weekly payments between the June 2007 incident and the August 2010 incident. 97The issue for determination (consistent with my obligation to make findings even though the defendants are not liable and therefore there is no right to statutory indemnity) is whether any medical expenses beyond 25 August 2010 (being the date of the subsequent work-related fall) were "paid in respect of the worker's injury [on 25 June 2007] under this [the Workers Compensation] Act" and are therefore recoverable under the statutory indemnity pursuant to s 151Z(1)(d). 98Mr Combe, who appeared for the State, submitted that I was bound by the Determination made by the Workers Compensation Commission on 13 September 2010 (the 2010 Determination) to accept that the payments classified by the workers compensation insurer as being referable to the injury in June 2007 were "paid in respect of the worker's injury [on 25 June 2007] under this [the Workers Compensation] Act" and therefore recoverable under the statutory indemnity. In order to address this argument it is necessary to consider the ambit of the Determination. 99The Determination arose in the following way. On 4 September 2007 Mr Dailhou made a claim relevantly against the Department of Education in respect of the fall sustained in June 2007. The Department accepted liability for the claim and paid his weekly payments and medical expenses for about two years. On 22 June 2009 the Department issued a notice under s 74 of the Workplace Injury Management And Workers Compensation Act 1998 (NSW) declining liability on the following two bases: (1)the injury did not occur in the course of the plaintiff's employment; and (2)s 9A of the Workers Compensation Act was not satisfied (namely that the employment was a substantial contributing factor to the injury). 100Mr Dailhou applied for a general order pursuant to s 60 of the Workers Compensation Act requiring the Department to pay for medical expenses which were reasonably necessary as a result of the injury. By this time Mr Dailhou was no longer making a claim for weekly payments as a result of the June 2007 incident. The Commissioner was obliged to determine, relevantly, whether the injury occurred in the course of or arising out of Mr Dailhou's employment and whether the substantial contributing factor requirement in s 9A was satisfied. Both these issues were determined in Mr Dailhou's favour. Both those issues have been conceded in any event by the defendants (who were strangers to the Determination) in the present proceedings. What was not addressed by the Determination at all was any relationship between any symptoms suffered by Mr Dailhou at the time of the Determination (13 September 2010) and the injury sustained on 25 June 2007. In particular the injuries sustained on 25 August 2010 were not the subject of the Determination and did not arise for consideration. 101Mr Combe also relied on an unreported decision of Williams DCJ in James D Ritchie Pty Limited v Imrahan Kathirgamalingam (21 April 2011) in support of the proposition that the State does not have to prove that the workers compensation payments were reasonable in order to recover them pursuant to the statutory indemnity under s 151Z of the Workers Compensation Act 1987. That proposition may be accepted. However, the issue in the present case is whether payments made to Mr Dailhou after 25 August 2010 in respect of his right shoulder were paid in respect of the injury sustained on 25 June 2007 or the injury sustained in August 2010. Williams DCJ did not need to address this question since the reasons do not reveal that there was more than one injury in respect of which workers compensation had been paid. 102Mr Combe also relied on Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301 in which, at [67], McColl JA cited her Honour's dicta in Kurnell Passenger & Transport Service Pty Limited v Randwick City Council [2009] NSWCA 59 at [39] where her Honour referred to the authorities that establish the following: "The employer must establish five separate constituent elements: (a) that a worker was injured; (b) that the injury was one for which compensation is payable under the 1987 Act; (c) that it was caused under circumstances creating legal liability in the tortfeasor; (d) that the worker has recovered compensation under the 1987 Act for that injury from the employer; (e) that the employer has paid the compensation so recovered." 103The issue in the present case is (d), namely whether the worker has recovered compensation under the 1987 Act for that injury from the employer. The statutory indemnity does not entitle the State to recover from the (putative) tortfeasor responsible for one of the injuries for which compensation was recovered under the Workers Compensation Act 1987 compensation that was paid for another work-related injury. 104The only findings of fact that I consider it is necessary to make in these circumstances are that I do not consider that the State has established that any amounts which it paid for Mr Dailhou's medical treatment after 25 August 2010 were recovered by Mr Dailhou for the injury sustained on 25 June 2007. The fact that they were allocated to the 25 June 2007 injury by an unidentified staff member of the State's workers compensation insurer is not, in my view, sufficient to establish that they were paid in respect of the June 2007 injury for the purposes of s 151Z of the Workers Compensation Act 1987. In the particular circumstances of the instant case where the same part of the body, the shoulder, was injured in a more serious way in a subsequent work-related injury, the assumption that would generally be made that the allocation of expenses to a particular claim (the earlier claim) reflected the fact (that the expenses were referable to the earlier claim rather than the claim in respect of the subsequent injury), is undermined and cannot in my view be made in the present case. 105I do not accept Mr Combe's submission that the Determination affects this finding in any way. The Determination, as set out above, was concerned with other matters. In any event the Determination is not binding on the defendants since they were not party to it. There is therefore no question of any issue estoppel. 106I reject Mr Combe's submission (which he based on Glad Cleaning Service Pty Limited v Vukelic [2010] NSWSC 422) that this finding would give rise to an obligation in Mr Dailhou to make restitution to the State for payments made after 25 August 2010, which were allocated to the claim in respect of the 25 June 2007 injury since the payments would, in that event, have been made under a mistake of fact. My finding arises because the State has not discharged the onus of proving that any payments after 25 August 2010 were paid in respect of the June 2007 injury. This is not to say that Mr Dailhou was not otherwise entitled to such payments or such treatment by reason of the injury on 25 August 2010 or any other subsequent work-related injury. 107Accordingly, had the defendants been liable to Mr Dailhou, the State would have been entitled to recover (subject to any hypothetical deduction for contributory negligence under s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW)) pursuant to the statutory indemnity. However its recovery would be limited, in light of the findings I have made above, to the amounts paid to or on behalf of Mr Dailhou prior to 25 August 2010 but not beyond that date. The State would also have been entitled to interest on that sum: Kwanchi Pty Limited v Kocsis (1996) 40 NSWLR 270. Orders 108I make the following orders: Proceedings 158994 of 2010 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. Proceedings 233293 of 2011 (1)Judgment for the defendants. (2)Unless a written application for a different order is made within seven days to my Associate, order the plaintiff to pay the defendants' costs of the proceedings. ********** 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: 02 September 2014