District Court New South Wales Medium Neutral Citation: Gary Bennett v Baiada Poultry Pty Limited [2014] NSWDC 144 Hearing dates: 11 - 13 August 2014 Decision date: 05 September 2014 Before: Mahony SC DCJ Decision: Verdict and Judgment for the Plaintiff. For Orders see [128] Catchwords: Liability of principal to independent contractor; contributory negligence Legislation Cited: Civil Liability Act 2002 Workers Compensation Act 1987 Cases Cited: Adeels Palace Pty Limited v Moubarek (2009) 239 CLR 420 Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424 Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370 Estate of the Late M T Mutton by its Executors & R W Mutton, trading as Mutton Brothers v Howard Haulage Pty Limited [2007] NSWCA 340 Fox v Wood (1981) 148 CLR 438 Graham v Baker (1961) 106 CLR 340 Haleluka v Coles Supermarkets [2012] NSWCA 343 Husher v Husher (1999) 197 CLR 138 Leighton Contractors Pty Limited v Fox (2009) 240 CLR 1 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Pollard v Baulderstone Hornibrook Engineering [2008] NSWCA 99 Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 Sydney Water Corporation v Abramovic [2007] NSWCA 248 Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234 Varga v Galea [2011] NSWCA 76 Wooby v Australian Postal Corporation [2013] NSWCA 183 Category: Principal judgment Parties: Gary Bennett (Plaintiff) Baiada Poultry Pty Limited (Defendant) Representation: A Lidden SC with P Khandhar (Plaintiff) D Priestley (Defendant) Brydens Lawyers Pty Limited McCulloch & Buggy File Number(s): 13/54439 Publication restriction: Nil Judgment The Plaintiff's Claim 1The plaintiff claims damages for personal injury suffered by him at his work as a contract driver on 13 March 2010. The plaintiff was a director and an employee of G & D Bennett Transport Pty Limited which was incorporated in 2000. Since that time, the corporation had contracted first with Bartter Enterprises, and subsequently from 2008, with the defendant, to deliver fresh poultry products within the metropolitan area of Sydney. 2The plaintiff was born on 19 November 1947 and in 2007 had leased a refrigerated pantechnicon truck on a five year lease. It was his intention to work to age 70, using the same truck for a period of five years after the lease expired. 3The system employed by the defendant for delivery of its products involved the defendant loading the truck driven by the plaintiff by its own employees during the nightshift. The plaintiff commenced work at 3.30am when he collected his laden truck at the defendant's site at Girraween. The load was securely locked. The plaintiff was required to first drive the truck over a weighbridge to verify the weight of the load and only then could the secure lock be broken for him to check the load in the back of the truck. The truck had rigid sides and was loaded, and unloaded, from the rear of the truck. 4The fresh chicken was packed in plastic bags and then placed in either cardboard or plastic containers which were placed on pallets. The pallets were then moved onto the truck from a loading dock by use of a forklift and/or a pallet lift. Usually the plaintiff's run was to the northern beaches area, where he would deliver small amounts of the load to individual outlets by obtaining the orders from the rear of the truck. He had a manual pallet jack in the truck for the purpose of moving pallets within the truck close to the rear of the truck for the purpose of unloading them. 5The corporation employing the plaintiff was remunerated by payment of a weekly amount, depending on the tonnage carried during that time period. If the tonnage exceeded a particular amount, the payment could be increased. It rarely was. The plaintiff was injured whilst unloading the truck in the manner described below. Circumstances of the Injury 6The following summary of the evidence represents my findings of fact as to the circumstances of the plaintiff's injury, unless otherwise stated. On 13 March 2010 the plaintiff attended at the defendant's premises at 3.30am to collect his truck. It had been loaded overnight with seven pallets of chicken product which was within a day or two of its expiry date, for delivery to a customer of the defendant, E & B Chickens. This type of delivery was known as a "bulk run". The plaintiff, having driven his truck across the weighbridge, checked the load, which comprised seven pallets in three rows of two pallets, and a single pallet closest to the rear of the truck. He gave the following evidence of what he observed: "Q: What did you notice on this date? A: Well the cartons were collapsed together. The crate - sorry - the pallet load was collapsed together. Jamming them so that - well it's very difficult to try and move them, particularly when they've wrapped shrink wrap, so the shrink wrap helps them to jam as well, stick together if you like. Q: When the cartons become soggy with chicken juices, what effect has that on the carton? A: The carton collapses. Q: When it collapses which way does it collapse? A: Downwards and sideways. Q: With the amount that was packed on these pallets I think you said for 6-7 feet high, what was the effect, if any, on the lower cartons on the pallets? A: They were almost non-existent. Q: What does that mean Mr Bennett? A: They were very flat, probably a couple of inches in thickness, down to about five inches." 7In cross-examination the plaintiff said that he knew the load was not properly packed. He gave the following evidence: "Q: What do you mean, you knew it wasn't? A: Well when I opened the doors and found that everything was on a lean, when you say that a pallet is shrink wrapped, it doesn't hold it up. All it does is maybe stop the top of the pallets - the top cartons from slipping off. A pallet can go on a truck like they did on an angle and in doing that with an electric forklift, that's when they are jammed in together and that's why it's impossible to pull them apart." 8The plaintiff proceeded to drive to the delivery site. There was no loading dock. The pallet closest to the rear of the truck had collapsed and the plaintiff had to first lift numerous packets of poultry from the floor of the truck and reconstitute the pallet so it could be removed from the truck. After doing that, he felt a twinge in his back. The rest of the load was packed by way of pallets placed side by side which were squashed together in the manner described above. To unload those pallets, the plaintiff had to use his own manual pallet jack to lift each of the pallets and move them to the rear of the truck and present them so that the forklift driver could unload them. He gave evidence that he was able to remove the first row of two pallets. There was no gap at all between the next row of two pallets and the cartons towards the bottom were very squashed. He then gave the following evidence: "Q: You took your pallet jack; correct? A: Yep. Q: Just tell me where you placed it, placed the tines? A: Initially I put it more to the left or to one side of the pallet so that when you jack up it tends to make that one go a little bit to one side. Q: Did you do that? A: Yes, I did. Q: Did it work? A: No, I couldn't - whilst you could lift it up a little bit you could not pull away. It would not pull away from the other pallet purely because of the expansion at the bottom base of the pallet. Q: Was there anything else you had to get in there to help you? A: Well not until I actually - after I pulled to a point where - and probably slipped at the same time because the floor is always wet and I said to the guys, "you know, you're going to have to get somebody to help you pull these out because I cannot do it." Q: Did you have anything on your truck to help you separate the pallets and get them out? A: No, I didn't. Q: Having failed to get one off the other one by putting your pallet jack to one side of the pallet, where did you then place it? A: Well I tried back in the middle which you'd normally do. Q: What did you do with it? A: What did I do with the pallet jack? Q: Yes? A: I tried to pull the pallet out. Q: How much of your physical strength did you put on the handle of that pallet jack to try and pull it out? A: As much as I had. All of my strength. Q: Did you get it to budge? A: No. Q. As you were pulling on it in that fashion did you notice anything happen to your body? A: Yes. Q: What happened? A: It felt like somebody had thrown an 8 inch knife through my back. Q: Whereabouts on your back? A: Lower back. Q: I think I forgot to ask you this, Mr Bennett, but the the handle of the pallet jack on which you pull just described, what's it like where you have your hands? A: It's almost a triangular shaped handle and it's probably a bar about an inch and a bit in diameter. Q: Circular bar? Then does it go into a shaft down to the operating mechanism? A: It goes into an oblong shaft. Q: Did you ever manage by yourself I mean to pull that pallet free? A: No." 9The plaintiff then gave evidence that he then asked the forklift driver to get help to unload the truck because he was incapacitated. The final four pallets were unloaded by staff employed by the customer, "with difficulty". History of Treatment for the Plaintiff's Injury 10The plaintiff had for some years prior to the injury consulted from time to time a chiropractor for what he described as "adjustments" to his spine. Following his injury, he consulted that chiropractor and then on 19 March 2010 he consulted his local medical officer, Dr P Baigent, and was referred for x-ray and physiotherapy. On 6 April 2010 he underwent a bone scan which confirmed a recent fracture of the L1 lumbar vertebrae. 11On 6 July 2010 the plaintiff was referred to Dr Simon McKechnie, neurosurgeon, who referred him for an MRI scan which confirmed a 25% crush fracture of the L1 vertebral body. Dr McKechnie also confirmed a diagnosis of osteoporosis revealed on the previous bone density study and referred the plaintiff for a course of physiotherapy and a core exercise program. 12The plaintiff remained under the care of Dr McKechnie and was referred for hydrotherapy. On 29 March 2011 he underwent a CT guided facet joint cortisone injection which gave him no relief. 13The plaintiff was also referred to the Royal North Shore Hospital pain management ADAPT program. He remains under the care of his local doctor, Dr Abdelsayed, who took over the practice of Dr Baigent and still suffers pain and restriction in his lower back. He continues to take Panadol regularly for pain, and on occasions, Voltaren. The Defendant's Case 14The defendant denies that it was negligent as alleged by the plaintiff and pleaded in its defence as follows: "7 The defendant alleges that the risk of harm posed by unloading of the said pallets of the processed chicken was an obvious risk for the purposes of Part 1A Division 4 of the CLA and; (a) Pursuant to s 5G of the CLA, the plaintiff is presumed to have been aware of the risk of harm and; (b) The plaintiff voluntarily assumed the risk of harm and; (c) Pursuant to s 5H of the CLA, the defendant did not owe a duty of care to the plaintiff to warn of the risk." 15In submissions at the conclusion of the case, Counsel for the defendant disavowed a reliance on voluntary assumption of the risk of harm as a defence as pleaded in 7(b) above. 16The defendant further pleaded that the plaintiff's injuries occurred wholly or in part as a result of the plaintiff's own contributory negligence and further, and in the alternative, the defendant pleaded that any damage suffered by the plaintiff was caused by the negligence of the plaintiff's employer. Pursuant to s 151Z(2) of the Workers Compensation Act 1987, any damages to be recovered from the defendant by the plaintiff are to be reduced by the amount by which the contribution which the defendant would but for Part 5 of the Workers Compensation Act 1987 be entitled to recover from the plaintiff's employer as a joint tort feasor or otherwise, exceeds the amount of the contribution recoverable. Issues to be Determined 17The following issues are to be determined: (1)Whether the defendant breached a duty of care to the plaintiff. (2)If so, whether that breach was causative of the plaintiff's injuries. (3)Whether the plaintiff's injury was caused by the negligence of his employer, and if so, to what extent. (4)Whether the plaintiff contributed to his injury by his own contributory negligence. (5)If the defendant was negligent, what damages has the plaintiff suffered. Evidence in respect of Liability 18The evidence established that the plaintiff was both a director and employee of G & D Bennett Transport Pty Limited, however, he was responsible for carrying out the obligations of that corporation pursuant to its contract with the defendant. The terms of the contract were not tendered in evidence by either party. The plaintiff acknowledged that it was his responsibility to unload the defendant's goods that had been loaded inside his truck. He was, in fact, his own boss for the purpose of fulfilling those duties. In the context of why he did not contact the defendant and refuse to carry out the job, he gave the following evidence: "Q: You didn't ring them about it? A: No. Q: Why did you do this? Why did you not refuse and ring them up and say 'I'm not going to do this'? A: I always had a fear of not doing that your contract was in jeopardy. Q: Had you ever had occasion to be rebuked about your performance? A: Yeah, once. Q: Was there a system in place with the defendant as to strikes? A: Sorry? Q: As to strikes, how many strikes you got? A: Yes. Q: What was the system? A: Well initially it was a letter and three letters puts you in that position of having your contract made redundant. Q: On any occasions with the defendant were there times when they wanted you to do more than you wished to do? A: Yes. Q: Did you protest about that? A: At times because of the hours or whatever I did and the comment was often 'Are you refusing work?' Q: Refusing work, what did that mean, so far as you were concerned? A: Not doing that particular job that they've asked you to do. Q: What consequences, if any, did you fear from that? A: Again, a letter of strikes, if you like." 19In cross-examination the plaintiff conceded that he had been driving trucks and carting chicken products for approximately 34 years before his injury in 2010. The product was stacked on pallets from after 2005; prior to that the product was hand loaded. The pallets were usually spaced approximately three inches apart. He gave the following evidence of the packing of the chicken on the day of his injury: "Q: I think you said in your evidence in chief that from time to time the loads on the pallets would become squashed against each other and hard to move out; is that right? A: Yes. Q: That's, in effect, what you say happened on this day in March 2010? A: Yes. Q: This was something that you encountered from time to time before over the years; is that right? A: Not to this point. Not to this extent, no. Q: But you had encountered from time to time over the years the loads getting stuck together? A: No. Not like that." 20The plaintiff gave evidence that he had difficulty getting pallets off the back of the truck before, however, if it is was a loading dock area he normally had help. He also described the use of a manual pallet jack which could lift a tonne in weight, however, it still needed to be pulled. He agreed that there had been three pallets taken off the back of the truck before he suffered his injury. 21In respect of the plaintiff's own responsibilities, he gave this evidence: "Q: Did you ever consider as a truck driver it was your responsibility to make sure the load was safe? A: Well we normally did and I then - once you got off the weighbridge and away then you could break the seal and I got into the back of the truck and endeavoured to - cause I used bars - pogo sticks, as they call them." 22Those bars were used to lock into a rail on the side of the truck so as to hold the load together. The plaintiff then gave the following evidence: "Q: You were looking to make sure that the load was properly packed; is that right? A: I knew it wasn't. Q: What do you mean you knew it wasn't? A: Well when I opened the doors and found that everything was on a lean and when you say that a pallet is shrink wrapped, it doesn't hold it up. All it does is maybe stop the top of the pallets - the top cartons from slipping off. A pallet can go on a truck like they did on an angle and in doing that with an electric forklift, that's when they are jammed in together and that's why it's impossible to pull them apart. Q: Because they were leaning on an angle? A: Yeah ... Q: I thought you were saying that you saw that those two pallets when they were being unloaded were stuck together because they'd sunk at the bottom because the cardboard had got wet and they squashed together? A: Yeah, that's what makes them lean - that's what makes the whole pallet lean that way or that way, whichever the case may be." 23In respect of what he observed when he inspected his load, the plaintiff gave the following evidence: "Q: In any event, you saw that there was a problem when you first checked your load straight after the weighbridge, is that right? A: I agree that the last pallet was maybe going to be a problem because there was nothing to hold that up other than my bars. Q: That's the one at the back of the truck, nearest the doors? A: Yes. Q: You thought that that might be a problem? A: Yes. Q: Why? A: Because there was nothing - other than my bars, there was nothing to hold it up. Q: What did you do about that problem? A: Well there wasn't anything I could do because I didn't have extra pallets on the truck that I could sort of fence it ... Q: You could have gone back to the distribution centre and got some couldn't you? A: I guess I could have. Q: Were you concerned that that pallet load, the single one at the back, was going to fall and scatter? A: Yes. Q: Why didn't you go back to the distribution centre and tell them that it wasn't properly loaded? A: I guess it's a time factor. Q: You wanted to get on with the job? A: Yes. Well, it was - it was an early morning job before my run. 24In respect of the rest of the load the plaintiff gave the following evidence: "Q: When you looked in the back of the truck after you checked your load, you saw that there was a problem with the pallet, that load at the back, correct? A: I thought there could be a problem. Q: Did you see that any of the other pallets were squashed together in the way that you've told us? A: Yes. I knew they were going to be a problem. Q: Firstly, you could see that there was something unusual is that right? A: No, not unusual for that sort of load. Q: You'd encountered that before had you? A: I'd seen it on other trucks. Q: Seen what exactly? A: What I had on my truck. Q: Can you describe what you'd seen before on other trucks? A: Well with the damaged stock if you like, or damaged cartons. Q: Squashing the loads together? A: Squashing the loads together, yes. Q: You thought then that it might be difficult to get those pallets off didn't you? A: No, well, that didn't enter my mind at 3.30, 4 o'clock in the morning. What was in my mind was to get the job done. ... Q: What did you think about these pallets and the way that they were placed and the loads on them? A: As probably that I was going to have a problem taking it off. Q: Because they were squashed together? A: Yep. And if I took it back to the yard they couldn't improve it. Short of repacking the whole load, I mean repacking them into new boxes. Q: That's why you didn't go back to the distribution centre is it? A: I just needed to get - my thoughts were to get the job done, no matter how difficult it was." 25The net weight of the load was just over 5 tonnes, and the load was split onto seven pallets. The plaintiff gave evidence that had that load been split onto 10 pallets, it probably would have been "a different story". In respect of his injury he gave the following evidence: "Q: The pallet was stuck, why didn't you just go and ask someone for help then? A: Well, I did. Q: Why didn't you go and ask someone for help before you hurt your back? A: Well I didn't realise I was going to hurt my back. Q: Yes, but you knew it was stuck? A: Yes. Q: Why didn't you go and ask for someone, when you realised it was stuck, before you hurt your back? A: I can't answer that question." 26The plaintiff gave evidence that he was responsible for occupational health and safety in his own business. When asked whether in that job he needed some training about health and safety, his answer was: "A: Never really thought of it." 27Following his injury, the plaintiff stayed in the truck and gave evidence that he gave instructions to the forklift driver and another person as to how he thought they could remove the pallet and they took most of his advice and removed the pallets. They did so by using brute force. The plaintiff agreed with the proposition that whether or not he needed help, it was his decision. He then gave the following evidence: "Q: You knew, didn't you, that if you strained yourself too hard moving alone, you could hurt yourself? A: No, I wasn't thinking of that. Q: But you knew it even before that day, didn't you? A: No, not really. Q: You didn't know it was a risk at all that if you strained too hard you could hurt yourself? A: I hadn't really thought about it. Q: You had had back pain from time to time over a long period of time before this accident, would you agree with that? A: No. Q: You had had back pain from time to time before this accident, would you agree with that? A: I guess, yes." 28In re-examination the plaintiff was asked about the assistance he got from the people at B & E Chickens to unload the truck. He gave the following evidence: "Q: Did you tell those people that you'd hurt yourself and needed some assistance? A: Yes, I pleaded with them actually because it was very hard to convince them to get into the back of the truck to help me." Report of Neil D Adams, Ergonomist and Safety Management Consultant, dated 10 July 2012 (exhibit A) 29Mr Adams' report was tendered without objection and there was no challenge to his qualifications. The history of the plaintiff's injury as contained in paragraph 2.1.8 and 2.1.9 of his report fairly accords with the plaintiff's evidence as outlined above. In evaluating the magnitude of the forces that the plaintiff exerted as he attempted to extract the pallet, Mr Adams acknowledged that without a re-enactment it was not possible to precisely quantify that load, however, given the weights involved, the plaintiff would have been obliged to exert forces of at least 45 kilograms. The task, in Mr Adams' opinion, would have imposed excessive loadings on the plaintiff's musculo-skeletal system and exposed him to an unacceptably high risk of injury. That overall level of risk would have been elevated by the fact that he had exerted the pulling force immediately after undertaking a strenuous lifting task in respect of the first pallet of chicken products. It was Mr Adams' opinion that the manual handling activity entailed quite significant risk of injury which was unacceptably high. He set out in paragraph 4.8 of his report reasonable preventative actions that could have been implemented either individually or in appropriate combination, including a risk analysis, provision of an offsider, provision of a motorised pallet jack, provision of additional equipment (e.g. an appropriate winch and cable), suitable levers, together with the following: "(v) The worksite controller could have ensured that any and all produce that was loaded onto the employer's truck was in suitably good condition, and/or was loaded in such a manner, that pallet load would not come misshapen to the extent that the level of manual force involved in moving them was excessive for an individual. For example, the product that comprised the bulk run load Mr Bennet was delivering at the material time, could have been transferred from the damp cartons that Mr Bennett described, into plastic tubs before the product was loaded onto the truck." 30Other factors included being provided with a truck which was capable of being unloaded by forklift from the side, or being provided with thorough training and supervised practice, as well as on the job instructions and advice in safe manual handling techniques, including identifying tasks that have the potential to lead to the development of injury and how to achieve the required outcome without being exposed to an unacceptably high level of risk. 31Mr Adams' report concluded that the plaintiff's exertion of very high levels of pulling force at the time was the primary or proximal cause of the injuries that he has sustained. In Mr Adams' opinion, there was a very significant probability that delivery drivers who are obliged to perform such physically demanding tasks might sustain musculo-skeletal injury as a result of exerting excessive levels of force. It should have been foreseeable to both the employer and the worksite controller that the plaintiff would be exposed to very significant risks of sustaining and/or of developing musculo-skeletal injury as a result of his performance of that work. 32In cross-examination Mr Adams made it clear that he did not attribute negligence to the employer or the worksite controller in the sense that he did not seek to apportion blame between the two entities. The defendant was, in his opinion, the worksite controller as they had loaded the truck and provided it to the plaintiff in a loaded form. They had thereby created the worksite that was inside the truck. The various precautions set out in his report were the subject of some cross-examination, for example, in respect of the use of a motorised pallet jack, he gave the following evidence: "Q: I suppose if one were to use a motorised pallet jack in that way to attempt to shift a load that was stuck, it's speculative as to whether or not it would actually work and apply enough force, it would depend on the forces involved, correct? A: Yes, depending on how significantly the load was stuck, yes. Q: We don't know in this case whether or not we've been able to move the load, you'd agree with that? A: I guess what we do know is that it would have been able to make the attempt to move the load with the worker themselves exerting significantly lower levels of force and therefore being exposed to a lower risk of injury. Whether it would have been ultimately successful in moving the load, I don't know." 33Mr Adams would not express an opinion as to whether the employer or worksite controller should have provided either additional labour by way of an offsider or, additional plant and equipment. He then gave this evidence: "Q: Whether or not someone attempted to use an excessive level of manual force though was a separate decision-making process that came after that, wasn't it? A: Well, not separate in the sense that it was necessary because of the manner in which the load had deteriorated in the back of the truck in transit, which was affected by the nature of that load in its condition. Q: But there's a distinction isn't there between a worksite controller as you call them, putting in front of a worker a task that has danger that they have to perform in a certain way and one that's put in front of them where they have a discretion as to how they perform it, would you agree with that? A: I would agree with that." 34As to the employer's responsibilities, Mr Adams gave the following evidence: "Q: I just want you to, for the moment, focus on the responsibilities of an employer in these circumstances, if the driver of the load identified at the commencement of the run, that there was a problem with the load, that might make it very difficult to remove the pallets, the employer's responsibility was, was it not, to make sure that the system of work involved returning the load and having it safely packed, would you agree with that? A: Well, the employer, in my opinion, would have had responsibilities in that scenario, what the response to those responsibilities would have been is a - can be effected by a number of other issues such as the nature of the delivery site and his knowledge, if any, of any assistance that might be available to his employer - employee there, whether or not he had access to other casual workers that he could hire to assist in that regard, and the nature of the contract between the employer and the supplier, whether it allowed for decisions like that to be made by the employer or by the supplier, whether the contract allowed for additional funding to be provided to the employer to take on additional labour if necessary or hire or purchase additional equipment if necessary. Q: Yes, but it would have been a responsibility of the employer to see that if it was reasonably possible to change the load at the start, that the driver go back and do that, that's right isn't it? A: Yes." Evidence Relied on by the Defendant 35The defendant called Mr Stephen Zahra, who was employed as the New South Wales transport manager for the defendant. He had worked as a distribution manager for the defendant between 1997 and 2005, and then after a period of absence, had returned to work with the defendant in September 2009 in his current position. He was responsible for overseeing the transport arrangements of the defendant in respect of its different processing centres and deliveries therefrom. He was not personally involved in the loading of the defendant's product onto contract driver's trucks. He denied ever becoming aware, in his role as transport manager, of contract drivers complaining about the way loads are stacked on pallets. In 2010 at Girraween there was no system in place for drivers to inspect their loads. 36Mr Zahra gave evidence that from time to time when drivers were late in deliveries for reasons such as a breakdown, the defendant would advise customers of a delay in the delivery. He was asked as follows: "Q: If there was a problem with a load, the way it had been loaded, and it needed to be reloaded because the cartons on the pallets were stuck together, what could Baiada do mechanically or physically? A: If there was an issue with the load the driver could have returned it to the depot where we would have looked at the load and re-addressed the issue. If there was an issue with the load we could have - the load was packed onto seven pallets, we could have dropped it down to 10 pallets so we could have reduced the weight per pallet or we could have - if the boxes were damaged or compressed, we could have repacked the load. If the load was still deemed to be unsafe to unload, we could have left the load behind and delivered it later once it was fixed. Mr Zahra agreed that such changes would have been made by manual handling. 37In cross-examination Mr Zahra identified the distribution manager responsible for what happened on the site as Adrian Bermeister. That person reported to the transport manager. As transport manager, Mr Zahra agreed that he had nothing to do with the day to day operation of delivering chicken to customers. As to the goods loaded on the plaintiff's truck, Mr Zahra agreed that he would not be surprised if the load was of almost expired chicken, although he said that was not confirmed. As to the responsibilities of those employees who loaded the trucks, he gave the following evidence: "Q: One of the things that they are not supposed to do is load too much chicken on a pallet so that the weight of the chicken that they've loaded on compresses the cartons at the bottom, is that right? A: That's right. Q: If one of your pickers loaded a carton of product up to about 7 feet high so that the cartons on the bottom were compressed to maybe half their original height, that would not be the appropriate way to load a pallet, correct? A: Correct. Q: And if that was the case, the forklift drivers if they were doing their job would be able to recognise the overloading of a pallet wouldn't they? A: They would recognise yes. Q: Would they then be supposed to say to the pickers, the packers, 'That pallet should be redone', is that the process? Q: Correct yes. Q: Rather than just jam, a 7 foot high load chicken on a pallet onto the back of someone's truck, they certainly shouldn't be doing that should they? A: Yes sir. Q: You're agreeing with me aren't you? A: Yes sir. Q: If it happened that the way in which the pallet was loaded resulted in the goods on the pallet sticking out at the bottom because of the compression on the boxes, that should not have been allowed to be loaded onto a truck should it? A: No sir. Q: If it happened that the load, perhaps because it was loaded too high and the boxes at the bottom were squashed, was tilting over to one side, that would firstly be a load that shouldn't have been packed in the first place in that fashion, shouldn't it? A: Yes, sir. Q: And if it was packed in that fashion, it should have been picked up by the forklift driver and sent back for repacking, correct? A: Yes, sir. Q: It certainly ought not to have been the case that two such pallets were jammed in to a refrigerated Pantechnicon vehicle so that they were stuck together, should it? That should never happen? A: No, sir. Q: You appreciate that these goods were loaded by a powered trolley jack or forklift? A: Yes, sir. Q: But they had to be unloaded manually. You appreciated that? A: Yes, sir. Q: If somebody with a power operated device jams two pallets in together so that they're stuck, it might pose a great difficulty to the delivery driver at the other end to try and get them free, correct? A: Correct." 38It was put to Mr Zahra that it would take many hours potentially to reload a truck, with which he disagreed. In those circumstances he gave evidence that the reloading of the truck would be made a priority and that it would be supervised by the nightshift supervisor, who at that time was Mr Rumi Singh. 39Mr Zahra gave evidence that the defendant gave no handout or written direction amounting to a notification to contract drivers that they could bring back badly packed loads and that he had never heard of it happening. When asked how would a driver be aware of his ability to take back a load if a problem arose, he said: "A: It would have been common knowledge to realise if there was going to be difficulties in unloading the vehicle to danger to himself to return the load to the loading dock." He denied ever having heard the expression "are you refusing work?" being stated on behalf of the defendant. He agreed that the drivers had been told that they were supposed to be on time as far as could be achieved and that the customers had an expectation concerning delivery times. 40In answer to questions from myself, Mr Zahra agreed that the run sheet, exhibit C, identified the particular invoice from which the nature of the goods could be determined in respect of the load carried by the plaintiff at the time of his injury. He had been asked to supply the particular invoice for the court case and did so. 41In re-examination Mr Zahra gave evidence of the longest time that he thought it would take for a improperly loaded truck to be reloaded was potentially an hour. The Defendant's Submissions in respect of Liability 42The defendant submitted that the plaintiff's employer was responsible for the system of work being utilised when he was unloading the truck. It was submitted that there was no evidence that the pallets were stuck together at the time of loading his vehicle. Counsel submitted that the court had to consider a distinction between an unsafe system of work for which the employer was responsible, "as opposed to merely providing an opportunity for risk to arise that has to be addressed". 43Relying on the High Court's decision in Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424, counsel for the defendant submitted that an employer in a one-man corporation owes a separate duty of care in respect of providing a safe system of work, regardless of the fact that the plaintiff employee is the sole director. As it was the plaintiff who made the decision to get on with the job once he had inspected the load, knowing there would be some difficulty in unloading it, given there was an opportunity to have the load repacked, there was no breach of duty by the defendant leading to the plaintiff not returning to the defendant's premises for that purpose. That submission was summarised as follows: "It's one thing to create a load that causes problems, the pallets are then dealt with is entirely another matter and there's no blame on the defendant at all in that regard." 44Counsel referred to the evidence of the plaintiff as to the condition of the load, and his evidence that he had not seen a load squashed together in that way, to that extent (see [19] above). 45It was submitted that the reasons for the plaintiff acting in the way he did were a matter for him and his employer. They were not a matter at all which could lay responsibility on Baiada, notwithstanding that the plaintiff had contractual obligations to fulfil with the defendant. 46It was submitted that the plaintiff could have got help. He was an experienced driver and the preventative measures raised by Mr Adams in support of the plaintiff's case were matters for the employer, not the defendant. 47As to obvious risk, counsel for the defendant submitted that given that the load was pressed together and the plaintiff was trying to dislodge it using all of his strength, then the risk of harm to himself in continuing that had within it an obvious risk of injury. 48Ultimately Counsel conceded that the defendant owed the plaintiff a duty of care in the manner in which it loaded the plaintiff's truck with its product. However, the defendant disputed that the content of that duty would extend to the unloading processes undertaken by the plaintiff here. Having regard to s 5B(1)(a) of the CLA, the defendant did not concede that the risk of injury to the plaintiff in unloading the truck was foreseeable and further submitted that pursuant to s 5B(1)(b) that the risk was insignificant. However, Counsel submitted that the "real battleground" concerned s 5B(1)(c), namely, whether a reasonable person in the defendant's position would have taken the precautions advocated by the plaintiff against that risk of harm. In considering that question, pursuant to s 5B(2)(a) it was submitted that whether the probability that the harm would occur if care were not taken by the defendant was to be considered prospectively. It was submitted that the probability that the loads would be stuck was not the same probability that the plaintiff would be injured. For those reasons, it was submitted that the defendant was not negligent. 49Further, liability had to be apportioned to the plaintiff's employer for breach of its non-delegable duty of care to provide a safe system of work to its employee the plaintiff. It was submitted that the employer would bear a greater proportion of liability than the defendant. It was the decisions made by the plaintiff both at the weighbridge stage and at the delivery stage in combination which gave rise to the unsafe situation for the plaintiff. 50Counsel submitted that the plaintiff was guilty of contributory negligence by his decisions, actions and omissions. He was an experienced driver and he could have taken the load back. It was his decision to deal with the problem that has arisen at the delivery site that led to his injury. Contributory negligence should therefore be assessed in the order of 1015%. 51In respect of s 151Z(2) of the Workers Compensation Act, counsel referred to Pollard v Baulderstone Hornibrook Engineering [2008] NSWCA 99. In this case, the plaintiff does not meet the 15% threshold required for a modified common law damages against the employer and therefore damages that could be recovered from the employer are nil. Submissions on behalf of the Plaintiff in respect of Liability 52The plaintiff submitted that upon inspecting the load, because of the location of the pallets behind the first three pallets from the rear, the plaintiff would have been unable to observe the manner in which those pallets were packed into the truck. What he did observe was that the pallets were jammed together by the defendant knowing that unloading was carried out by the use of hand pallet jacks. It was the defendant who controlled the operation from start to finish. 53The risk of harm arose here by the defendant's loading of the truck with goods that were jammed together which would pose a risk of injury to a person unloading the goods manually. It was submitted that that risk was both foreseeable and not insignificant, and there was no social burden for the defendant in carrying out the obligations which it ordinarily imposed on its workers. 54Senior Counsel for the plaintiff submitted that the precautions to be taken included proper loading of goods which could be unloaded safely, and in the event that poor loading was going to regularly occur from time to time, there should have been a system whereby the drivers knew they could safely return the goods without being criticised for refusing work. It was submitted that there was clear breach pursuant to s 5B of the CLA, and 5D was satisfied in that the negligence of the defendant was a necessary condition of the occurrence of the harm and indeed was the only condition of the occurrence of that harm. It was further appropriate for the defendant's liability to extend to the harm so caused. 55In respect of whether the employer was liable, Senior Counsel submitted that the plaintiff did not know that the load had been rammed in with a powerful forklift so that it would not budge upon application of his manual strength to remove it. He had no reasonable alternative by the time that he was at the customer's premises, a considerable distance away from the defendant's warehouse. 56In respect of contributory negligence and s 151Z of the WCA, Senior Counsel submitted that the defendant bore an affirmative onus of proof in respect of both matters. It was no answer for the defendant to say that the plaintiff could have got men from the customer's workforce to unload the load for him. The evidence made it clear that he had to plead with those men to help him once he was injured. 57In respect of s 151Z, the plaintiff submitted that what was involved here was a casual act of negligence of the forklift driver employed by the defendant in loading the truck. In those circumstances it was difficult to see what the employer could do. The plaintiff was a man with over 30 years experience in unloading trucks. It was submitted that the defendant had failed to prove that the process of unloading could have been done in a better way. The defendant called no evidence from the responsible person, being the supervisor with responsibility for loading of the trucks. This was described as "an evidentiary abyss" in respect of the proof of both matters, namely, s 151Z and contributory negligence. It was submitted on behalf of the plaintiff that there was no s 151Z application here. The plaintiff's employer had discharged its non-delegable duty of care by relying on the plaintiff's own experience and knowledge of manual handling techniques. He was just presented with a one-off situation where he did not work out that he was going to injure himself or might injure himself by pulling the pallet jack. He used his strength and due to the osteoporotic state of his spine, of which he had no knowledge, he suffered an injury. Senior Counsel submitted that there could be no contributory negligence in those circumstances because the plaintiff could not know that his back would be injured by pulling this object. Alternatively, If there was any contributory negligence, it may amount to a finding of 5%. Additional Findings of Fact 58Having regard to all of the evidence, I make the following findings of fact in addition to those findings outlined above in respect of the circumstances of the plaintiff's injury: (1)I find that the inspection made by the plaintiff of his load, once it had cleared the weighbridge, was such as to enable him to observe only the general state of the loading as it affected the last three pallets towards the rear of the truck. It could not have given him an opportunity to observe the extent of the problem as it affected the last two rows of pallets closer to the front of the truck. (2)On the basis of that inspection, the plaintiff correctly concluded that the load would be difficult to unload. However, at that time there was no basis for him to know the extent of that difficulty. (3)To return to the defendant's loading dock and demand that the load be repacked was not a realistic alternative available to the plaintiff at that time. I find as a fact that it had never happened before, accepting the evidence of Mr Zahra. Further, I accept the evidence of the plaintiff that to do so would have exposed the plaintiff to the accusation of refusing work and thereby jeopardising his contract with the defendant. (4)As an experienced contract driver, the plaintiff was justified in proceeding to deliver the load. (5)Once he arrived at the premises of B & E Chickens to deliver the load, the plaintiff proceeded to unload his truck using his usual system of work, namely, by means of his own labour, and the use of the manual pallet jack. By doing so, the plaintiff was able to assist in the removal of the first three pallets from the rear of the truck. (6)By utilising the same system of work, the plaintiff attempted to remove the next pallet. (7)The cardboard boxes as the bottom that pallet, and the one next to it, had collapsed so that the pallets were jammed together. They were normally spaced apart. (8)In utilising the pallet jack, the plaintiff applied as much physical force as he could, and in doing so, suffered an injury to his lower back involving a fracture of L1. (9)Unknown to the plaintiff at the time of his injury, he suffered from osteoporosis of his spine which made his spine susceptible to such injury. Legal Principles 59As conceded by Counsel for the defendant, the defendant owed to the plaintiff a duty of care in respect of the loading of his vehicle. That loading was carried out by mechanical use of a forklift, placing the pallets of chicken products side by side on the rear tray of the pantechnicon. The defendant knew that those products had to be unloaded from the rear of the truck, and had to be manually unloaded by the contract driver by use of a pallet jack. To unload the goods, each pallet had to be moved by the driver towards the rear of the truck so that the customers' staff could remove each pallet by way of a forklift. The only issue here is the extent of, or content of the duty of care. Given that the defendant had complete control over the loading process, and had knowledge of the need for the plaintiff to unload the load manually, the defendant's duty was to take reasonable care to avoid the unnecessary risk of injury to the plaintiff in that unloading process. 60The plaintiff was an employee of G & D Bennett Transport Pty Limited. That corporation owed the plaintiff a non-delegable duty of care as his employer to provide a safe system of work and safe plant and equipment to avoid the risk of unnecessary injury to the plaintiff. There was no evidence as to the content of the contract between G & D Bennett Transport Pty Limited and the defendant. However, the system of work employed was the same system of work that had been utilised by the defendant and its predecessor Bartter Enterprises over many years. That system involved the defendant being responsible for the loading of the truck in question, and the plaintiff as driver being responsible for manually unloading the truck, whether it be multiple deliveries to customers of the defendant or a bulk run. What has to be considered in respect of the employer's duty of care is therefore an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work - see Andar Transport Pty Limited, supra [34]. That duty is on the corporation, and not the plaintiff by virtue of his status as a director. 61In Andar Transport Pty Limited, it should be noted that it was conceded by the respondents that the trolleys provided by it were not safe to use (see [53]). There, the High Court held that the employer Andar had failed to take reasonable steps to develop and maintain a safe system of work for its employees for loading and unloading the trucks using those trolleys (see [55]). Hence, it was responsible for failing to provide a safe system of work and its employee was injured as a result of that failure (see [58]). 62On that basis, the decision in Andar can be distinguished. There is no evidence suggesting that the pallet jack used here was in any way faulty. Nor was there any evidence to suggest that the system of unloading overseen by the employer was unsafe. It had been implemented over a long period of time and no doubt utilised in many hundreds if not thousands of deliveries. Unlike in Andar (at [57]), there was no evidence of any steps which could have reasonably have been taken by the employer to reduce the likelihood of injury - see also Pollard v Bauderstone Hornibrook Engineering Pty Limited, supra, per McColl JA, (with whom Mason P and Beazley JA agreed) at [39]. In that case, Her Honour also stated: "45 It has been accepted that the question whether the employer's non-delegable duty is discharged where an employee is working at a third party's premises depends upon such matters as "the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors: Bourke v Victorian Workcover Authority [1999] 1VR 189." 63The fact that the plaintiff was injured at premises not controlled by an employer is another important factor - see [48], where Her Honour referred to Estate of the Late M T Mutton by its Executors & R W Mutton, trading as Mutton Brothers v Howard Haulage Pty Limited [2007] NSWCA 340. 64Her Honour referred to the judgment of Ipp JA in that case at [146] - [147] as to the question of the employer's control over the workplace where multiple deliveries were made to different customers and, at [51] referred to the finding made by Ipp JA (at [187]) that it was a sufficient discharge of the employer's duty to the plaintiff for it to be satisfied that he was an experienced driver with considerable experience in working with augers, including unguarded ones. That has application here, where the plaintiff was a very experienced driver and very experienced with the manual handling involved in unloading loads of chicken packed on pallets by use of a manual pallet lifter. 65The defendant bears the legal and evidentiary burden of establishing that G & D Bennett Transport Pty Limited, as employer, had breached its duty of care to the appellant. In Varga v Galea [2011] NSWCA 76, McColl JA (with whom Beazley JA and Handley AJA agreed) said: "24 For the purposes of the s 151Z exercise, as I have said, the respondents bore the legal and evidentiary burden of establishing that Greystanes (the employer) had breached its duty of care to the appellant. They had to demonstrate first, as was uncontroversial, that there was a reasonably foreseeable risk of injury to the appellant in his manner of performing the task he was undertaking. Secondly, they had to prove that Graystanes failed to take reasonable care to avoid that risk because it failed to devise a method of operation for the performance of the task that eliminated the risk, or failed to provide adequate safeguards; Czatyrko v Edith Cowan University (2005) 79 ALJR 839 (at [12])." 66In that case Her Honour held that the appellant's accident was unusual, and the use of a safety harness as advocated against the employer in the absence of any evidence as to how it would have functioned to have avoided injury to the employee meant that the respondent's case against the employer failed, as did its case of contributory negligence against the plaintiff (see [30] and [31]). 67Liability here is to be determined pursuant to the Civil Liability Act 2002 ("CLA"). Breach of duty of care is to be determined by application of ss 5B and 5C of the CLA and causation in accordance with 5D. The defendant contends that no duty of care arises because the risk in question was obvious, pursuant to s 5H. 68Subject to those provisions, the High Court has recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for an independent contractor is safe. In Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16, Mason J identified that control of the worksite is a significant element to be taken into account. That was recognised in Leighton Contractors Pty Limited v Fox (2009) 240 CLR 1. Of relevance here is the decision of Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234 where the appellant was injured moving a waste bin situated on the respondent's property. The evidence established that whilst it was the responsibility of the respondent's staff to move the bins once they had been emptied, it knew that contractors carrying out deliveries often had to move the bins themselves. The status of the respondent as occupier of the land gave it a measure of control over the physical condition of the premises, but also with respect to the business operations carried out on the premises. 69Those decisions were considered by the Court of Appeal in Wooby v Australian Postal Corporation [2013] NSWCA 183. In that case, Basten JA (with whom McColl and Ward JJA agreed) held, referring to Rockdale Beef Pty Limited v Carey [2003] NSWCA 132, that in respect of whether there was a breach of duty of care by a principal to a contractor, control over the place of work and work system were relevant (at [23]). 70His Honour went on to refer to his decision in Sydney Water Corporation v Abramovic [2007] NSWCA 248 where at [98] he identified the following relevant factors as to whether a duty of care existed: "(a) The principal directs the manner of performance of the work; (b) The work requires a coordination of activities of different contractors; (c) The principal has or ought to have knowledge of the risk and the employer does not and cannot be reasonably expected to have such knowledge; (d) The principal has means to alleviate the risk and the employer cannot reasonably be expected to do so; (e) Although the employer has or should have the relevant knowledge and can expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so." Applying these principles, the issue of liability in this case can be determined as follows. Determination - Liability 71As set out above, the first question to determine is whether the defendant breached its duty of care to the plaintiff. The first step in that process is to identify what was the risk of harm. The defendant had full control over the loading process. The risk of harm that arose from that process was that, if the goods were loaded in such a way that they could not be moved manually by a contract driver in the position of the plaintiff by use of a manual pallet jack, then that driver would be exposed to the risk of injury by application of physical force in attempting to unload the goods. The transport manager employed by the defendant, Mr Zahra, acknowledged in his evidence set out at [37] above, that the chicken should not have been loaded in the way that it was. 72The plaintiff was a witness of truth who gave his evidence in an understated and somewhat stoical fashion. However, I accept his evidence in its entirety as to the observations he made of the load when he first examined it. Those observations were clearly confined only to the last three pallets to the rear of the truck, and he correctly formed the opinion that he would have difficulty unloading them. Notwithstanding that difficulty, he was able to unload the first three pallets. 73In applying s 5B of the CLA, I find that the risk of injury arising from the manner in which the defendant loaded the chicken was foreseeable, and was not insignificant, given the heavy forces involved in unloading the chicken. I find that the defendant breached its duty of care to the plaintiff by loading the truck in the manner in which it did. 74Unlike the situation in Andar Pty Limited, there was nothing the plaintiff's employer could have reasonably done to avert the risk in this case. It was a casual act of negligence on the part of the defendant which led to the plaintiff's injury. 75I find, pursuant to s 5D of the CLA, that the negligence of the defendant was a necessary condition of the harm, applying the "but for" test of causation; Adeels Palace Pty Limited v Moubarek (2009) 239 CLR 420 at [45]. I do not find that the risk of harm caused to the plaintiff here was an obvious risk so as to negate the duty of care pursuant to s 5H. Whilst the plaintiff's observations caused him to believe that unloading the pallets would be difficult, it was not at all obvious that doing so would cause him injury. Indeed, his success in removing the first three pallets would have led him to believe that that was not the case. As an experienced driver, with many years experience removing such loads, the evidence established that he had seen this problem before, but not to the extent that occurred on this day. In endeavouring to unload the goods, he used the same system of work that he had used for many years. In the circumstances, the risk was not obvious at all and s 5G of the CLA is not made out, and s 5H has no application. 76For those reasons I find the defendant liable for the plaintiff's injuries in negligence. I do not find that the plaintiff's employer, G & D Bennett Transport Pty Limited, liable in any way for those injuries. Unlike the employer in Andar, there was nothing the employer could do to ameliorate the risk, if any, arising from the system of work. It was the same system that had been used successfully for many years, and was a system that the defendant had first implemented. There is no suggestion here that the pallet jack was in any way faulty, like the trolleys used by the employer in Andar. Similarly, the employer had no control over the way in which the goods were loaded, nor the various worksites where unloading took place. For those reasons, there will no adjustment to the plaintiff's judgment by way of application of s 151Z(2) of the Workers Compensation Act 1987. 77Nor do I find that the plaintiff contributed to his injuries by his own contributory negligence. He was an experienced contract driver who had used the same system of work over many years, and particularly with respect to unloading pallets, since 2007. Whilst he may have suffered episodes of back pain from time to time during his working life, he had no knowledge of the condition of osteoporosis that was subsequently diagnosed following a bone scan being carried out. He had successfully moved the first three pallets, notwithstanding the problems he observed, so they could be unloaded. By attempting to utilise the same system of work to remove the fourth pallet, and in using as much physical strength as he can muster to do so, I do not find that he was guilty of contributory negligence. He was merely carrying out a system of work which had been successfully utilised many times in the past. There will therefore be no finding of contributory negligence by the plaintiff. Evidence in Respect of Damages 78The plaintiff was age 62 years at the time of his injury and is now 66 years of age. He was educated to Intermediate Certificate standard and left school when he was 15 years of age to work as a clerk in a bank. He first worked as a transport manager for Steggles Poultry in the period 1972 until 1978, but from July 1978 he worked as a contract delivery driver for Steggles, operating a business in partnership with his wife. The business for which he carried out contract driving for was on-sold a number of times, first to Goodman Fielder in 1989, then to Bartter Enterprises in 1999 and eventually to the defendant in 2008. 79G & D Bennett Transport Pty Limited was incorporated in the year 2000. The plaintiff and his wife were the only directors and only the plaintiff was licensed to drive the pantechnicon truck. Mrs Bennett's involvement in the business of that company was minimal, involving some minor clerical duties, banking duties in the early years and occasionally assisting her husband with deliveries at Christmas time. 80I accept the plaintiff's evidence that it was his intention to work to age 70 years. In 2007, at the age of 60, he had leased a refrigerated truck on a 5 year lease which was due to expire when he turned 65. 81There is little controversy in the medical evidence. The plaintiff suffered a fracture of L1 vertebrae as demonstrated on the CT scan taken on 6 April 2010. Immediately following the injury he felt severe pain in his lower back, and he continued to suffer from low back pain thereafter. He came under the care of his local medical officer, Dr Baigent, and was referred to a neurosurgeon, Dr Simon McKechnie, who confirmed the diagnosis. Dr McKechnie described the fracture as a 25% L1 crush fracture and suggested there may also be minor fracturing of the T12 vertebrae. 82A bone density study demonstrated that the plaintiff suffered from severe osteoporosis in his spine. He was referred by Dr McKechnie for physiotherapy and a core exercise program, however, he continued to suffer from low back pain worsened by activity. 83The plaintiff underwent a CT injection of corticose steroid on 29 March 2011 to his lumbar sacral spine, but obtained little relief. 84The plaintiff has been unable to work since the accident and at first kept his business going by employing a sub-contractor driver. That driver left in September 2011 and the plaintiff's business was ceased shortly thereafter. The plaintiff has been certified as unfit to return to his duties as a truck driver and is not trained by way of education or experience for any other occupation. He has also suffered an emotional reaction to his inability to work. Dr Millons was of the opinion that the plaintiff does need assistance with heavier tasks at home in the order of three to four hours per week to help him cope with tasks he is not able to perform around the house and garden. 85The plaintiff was examined on behalf of the defendant by Dr P J Burke. In his report dated 26 November 2013, he accepted that the state of mechanism of injury, namely, pulling vigorously on a pallet jack, could have caused the L1 compression fracture. Dr Burke was of the opinion that that fracture was not the result of pre-existing Scheuerman's Disease in the plaintiff's spine. 86The plaintiff was also examined by Dr I Barrett on behalf of the defendant. He provided a report dated 31 July 2013 in which he noted that the plaintiff experienced constant pain in the mid and lower lumbar back, referred to both buttocks. In Dr Barrett's opinion the compression of the L1 vertebral body had, at the time of his examination, increased in size and was now in the order of a "25% - 50%" fracture. 87Dr Barrett was of the opinion that in the normal course of events he would have expected a greater resolution of the plaintiff's symptoms in the months that followed his injury and that the plaintiff would have been unable to return work for a period of 8-12 weeks approximately. During that period of time he would have been unfit to return to his full preinjury duties. Dr Barrett recommended future treatment along conservative lines. In a separate report dated 31 July 2013 Dr Barrett was of the opinion that the plaintiff required in the order of three hours of domestic assistance per week in the first eight to twelve weeks following his injury, and now requires one hour of domestic assistance per week for heavy housework and gardening. 88The plaintiff attended the pain management and research centre at Royal North Shore Hospital on 13 September 2011. The defendant tendered a report of Dr Phillip Siddall from that service which recorded that at the time of his attendance the plaintiff had pain in his lower back, left hip and upper leg, abdomen, shoulders and neck. The pain in the plaintiff's lower back was described as "constant, dull and aching, and worse with sitting and standing, and eased by changing posture. He does experience weakness in the legs with pain but describes no numbness or paraesthesia and no bladder disfunction. The left hip and upper leg pain is a constant aching but is worse with lying on that side but no paraesthesia or numbness. The neck and shoulder pain is not a strong component of his pain and is aggravated by lifting. The abdominal pain is constant and largely epigastric in location and described as aching and grabbing." 89Dr Siddall was of the opinion that the pain suffered by the plaintiff was contributed to by a number of factors, the first being associated with changes in his lumbar spine following the L1 compression fracture, changes in the L5/S1 disc and involvement of the lower lumbar facet joints. Dr Siddall was of the opinion that the plaintiff would benefit from attendance at a cognitive behavioural pain management program known as ADAPT. The Plaintiff's Evidence as to Damages 90The plaintiff gave evidence that Dr Baigent referred him for physiotherapy and hydrotherapy. After the first week he employed a contract driver to do his run, paying him $1,500 plus GST per week. That arrangement lasted for six months, following which, he employed another driver on the basis of an hourly rate of $35 an hour. That driver was unable to do what had previously been carried out in 50 hours per week, in less than 75 hours per week. In 2011 the contract was terminated. 91Dr Baigent referred the plaintiff to a neurosurgeon, Dr McKechnie, in July 2010. He underwent an injection into his L1 vertebrae and continued with hydrotherapy. He underwent a 15 day program on pain management at Royal North Shore Hospital where he was given exercises. The plaintiff also described emotional problems after the accident. 92When Dr Baigent retired from the medical centre, the plaintiff's care was taken over by Dr Abelsayed. 93The plaintiff gave evidence that a rehabilitation service provider was trying to get him a job and he attended a couple of interviews but was unsuccessful. He gave evidence that he could not go back to his job as a contract driver. 94Before the accident the plaintiff looked after the garden and swimming pool at his home. He also assisted with domestic chores, attending to 30% of those. 95Since the accident, the plaintiff gave evidence that his wife had been doing the gardening and lawn mowing, with the assistance of a neighbour. He was unable to do heavy cleaning. He said he would like to have someone pay for the heavy chores that he was unable to do to relieve his wife of those chores because it was a bit much for her. She was now 67 years of age. 96In cross-examination the plaintiff agreed that he had strained his back prior to March 2010 lifting plastic crates. However, he had a high tolerance of pain and used to ignore it. He sought no medical treatment. He denied telling anyone that he had a disc injury at all in the past. 97The plaintiff was cross-examined about his treatment by the chiropractor, Dr Brinsmead, over a period of years prior to the accident. It was put to him that he saw Dr Brinsmead because he was having back pain, which he denied. He gave the following evidence: "Q: Sometimes he's work on particular parts of your back wouldn't he? A: Yes he'd - he had a - well, whether it was true or not, he had a way of saying, 'this part is not really in tune', to use his words, and one would hope that that made it in tune. I often walked out of the place thinking that nothing was different. Q: Didn't he sometimes work on a particular part of your back that you had told you had pain in? A: Yes, around my neck. Q: And your lower back sometimes? A: Sometimes my hip. Q: And your lower back sometimes? A: Possibly ... Q: You went to him because you were having pain, isn't that right? A: No." 98The plaintiff was also cross-examined about physical problems with his shoulders. He gave evidence that he had an injury to his left bicep which gave him a limp arm. He also developed problems in his right shoulder which he noticed in late 2012 after he stopped work. It was put to him that by the start of 2010 he knew he was not going to be able to work beyond the end of the lease for the truck, when he was aged 65. He denied that. He was asked: "Q: Weren't you going to retire when you became eligible for the age pension? A: No. That was never considered." 99The plaintiff agreed that for treatment he was just taking Panadol and Voltaren now. He described his wife's involvement in the business as minimal; she was mostly a silent partner. 100The plaintiff agreed that he had tried to do housework inside the house but had not done vacuuming and mopping. He disagreed that he had told the ADAPT program at Royal North Shore Hospital that he was more active at home, helping his wife with more vacuuming and mopping. He also denied telling the ADAPT program that he was doing the lawns. He further denied that he had been on holidays, boating and bushwalking. Evidence of Mrs Bennett 101Denise Bennett has been married to the plaintiff for 45 years. She was an honest witness who gave her evidence in a candid and unexaggerated fashion. She agreed that in the early years of the business he had done banking and occasionally accompanied the plaintiff on his run to identify shop premises. It was usually during the last week or so before Christmas. She described the plaintiff in the following terms: "A: He was hardworking, got along with people. We had a - still have a happy marriage. We're very - wouldn't say comfortable but like as in ourselves we were." 102She described the plaintiff as someone who would play with their grandkids, he did the mowing and "did stuff around the house". She noticed a large change in him following the accident. The fact that the business failed had a very bad effect on him. She described him as "very depressed. He didn't think he could support us. He was worried. He just went very quiet." 103Mrs Bennett gave evidence of the assistance the plaintiff gave her in doing the domestic chores. Since he was injured, he was no longer able to attend to the outdoor chores of gardening, cleaning the pool and cars. 104In cross-examination Mrs Bennett agreed that she received $1200 per fortnight from the business. She would do some of the paperwork and would assist in preparing documentation for the accountant to help him prepare tax returns. She was challenged about the evidence she gave that the plaintiff did two hours a day of chores before he was injured. She said: "A: Well yes, because he was doing the mowing, he was doing the edges, he was doing the pool, he was - we've got a big garden, he'd come home of an afternoon because some afternoons he'd come home half past three, half past two, just depending on you know, the run of the day and he would help. He would also do work on the weekends and the Mondays that he had off." 105In recent times Mrs Bennett gave evidence that the plaintiff was assisting her with the housework by doing a bit of dusting and she was encouraging him to do some cooking. She was also trying to get him to go back to mowing a small area of lawn. She had to start the lawnmower. The Plaintiff's Submissions as to Damages 106The plaintiff submitted the following Schedule of Damages: Non-economic Loss (35%) $193,000.00 Past Out of Pockets $45,055.00 Future Out of Pockets $20,000.00 Past Wage Loss ($900 npw x 230 wks) $207,000.00 PastLoss of Superannuation (11%) $22,770.00 Future Wage Loss ($900 npw x 3 yrs (145.6) x 80% $105,000.00 Future Superannuation (12.22%) $12,830.00 Past Griffiths & Kirkemeyer (14hrs/wk x $27.70 hr x 230 wks) $89,195.00 Future Griffiths & Kirkemeyer (14hrs/wk x $27.70/hr x 20 yrs (666.4) or $258,430.00 Future Paid Care (8hrs/wk x $40/hr x (666.4)) $213,250.00 Fox v Wood (20% of $103,430) $17,454.00 107In respect of non-economic loss, the plaintiff's Senior Counsel submitted that there was no medical issue. The plaintiff had frank pathology to his lumbar spine and whilst he may have had previous episodes of back pain, his back was at the time of the injury asymptomatic. The plaintiff himself gave eminently acceptable evidence. He was a man with a high work ethic. 108The parties agreed a net earning capacity through the corporation of $1,000 net per week. The plaintiff's claim for past wage loss was based on 90% of that amount. It was submitted that that proportion favoured the defendant as Mrs Bennett in fact did very little to further the business. In accordance with principle, the plaintiff was entitled to be compensated for his lost earning capacity - see Husher v Husher (1999) 197 CLR 138. 109For the future, it was submitted that the Court would accept that the plaintiff would work to 70 years of age. He clearly enjoyed his work and wanted to keep working. Whilst the degenerative condition of his spine might have flared up, there was no evidence that it would do so. Other preinjury physical problems he had for example, with his shoulders, were relatively minor and there was no evidence that they would stop him from working. As the plaintiff was now 67 years of age and was otherwise in good health, it was not encumbent upon the Court to discount any future damages by 15% on behalf of vicissitudes. Rather, a discount of between 5 and 7% was appropriate. 110In respect of the plaintiff's claim for domestic assistance, the Court would have regard not only to the opinion of Dr Millons, but more importantly, the thrust of the evidence of the plaintiff and his wife, relying on Haleluka v Coles [2012] NSWCA 343. The amount claimed of 14 hours a week was a reasonable reflection of the plaintiff's need for assistance in the past. 111In respect of future care, it was submitted that there was a need for paid assistance as Mrs Bennett could not be expected to carry out manual tasks such as cleaning the pool, gardening and lawn mowing. Senior Counsel for the plaintiff conceded that the plaintiff would have in due course required assistance with heavier tasks because of the preexisting degenerative condition of his back. However, that merely required an adjustment to the plaintiff's damages by way of a discount of 20%. 112There was a dispute between the parties as to the appropriate amount to be allowed pursuant to the principle in Fox v Wood (1981) 148 CLR 438. Tax had been deducted on payments up until 12 October 2012 paid to G & D Bennett Transport Pty Limited, however, thereafter, that company had deducted tax payments and the plaintiff was entitled to be placed in the position he would have been but for the injury. For that reason, the sum of $20,685.00 was claimed on the basis of it being 20% of the total workers compensation payments. That claim was subsequently amended in a schedule (MFI 1) to the sum of $17,454.00, being the sum of tax deducted from payments made directly to the plaintiff plus tax deducted from payments made by the insurer to the plaintiff's employer. Defendant's Submissions as to Damages 113In respect of non-economic loss, Counsel for the defendant submitted that having regard to the plaintiff's age, any award for non-economic loss would assessed at less than 30% of a most extreme case. 114No submission was made as to the plaintiff's claim for past treatment expenses which were paid by the workers compensation insurer. For future treatment Counsel for the defendant submitted that $5,000 was an appropriate amount for ongoing medications, being Panadol and Voltaren, as well as regular supervision by the plaintiff's general practitioner and specialist. 115In respect of past earning capacity, the defendant submitted that, whilst a starting point of $1,000 net per week was an agreed loss of income to the plaintiff and his wife, that income had to be split. Mrs Bennett gave evidence that she drew $600 per week for household expenses, which reflected the earning capacity for her contribution to the business. 116For future loss of earning capacity the defendant submitted that the plaintiff would not have retired at age 70, but given his pre-existing back condition, would have retired at age 65. He had a low back condition that was of long standing and in 1990 had suffered an injury lifting crates. He had given evidence that he had been seen by a chiropractor on a regular basis prior to the injury for adjustments to his spine and that he had suffered some low back pain. It was therefore submitted that the plaintiff was unlikely to have worked for even one year after he turned 65. 117In respect of the plaintiff's claim for domestic care and assistance, the defendant submitted that the plaintiff's claim was not made out. On the basis of Mrs Bennett's evidence that she required two hours plus each day assistance to make up for the duties she carried out on behalf of her husband, that was not supported by the evidence. In fact, the plaintiff had gone back to mowing the lawns and attending to tasks which were not heavy. The defendant submitted that the medical evidence supported a claim of between one and four hours per week for the past which did not pass the threshold for an award of damages. 118In respect of the claim made for future commercial care, the defendant submitted that the limitations on the plaintiff were minimal and in any event, would not be required for his life expectancy. 119With respect to the claim for payments pursuant to the principle in Fox v Wood, supra, the evidence established only that $8,414.00 had been deducted by the insurer for tax from the workers compensation payments and therefore the plaintiff's claim was confined to that amount. Assessment of Damages 120In respect of non-economic loss, because of the age of the plaintiff, any award of damages has to be discounted. Notwithstanding that, the plaintiff suffered a frank injury to his lumbar sacral spine, being a crush fracture to L1. He suffered severe pain at the time of the injury and has continued to suffer chronic pain which has effected all of his life's activities. I do not accept Dr Barrett's opinions as set out at [87] above. The plaintiff's symptoms of back pain did not resolve, and he was not able to return to work after 812 weeks. The plaintiff has suffered from chronic low back pain since the accident and has suffered a psychological reaction to his injuries. Having regard to all of the evidence, I find that the plaintiff's injuries amount to 30% of a most extreme case and award the sum of $127,000.00 for that head of damages. 121Past out of pocket expenses are agreed at $45,055. For the future, the plaintiff will require ongoing medication by way of Panadol and Voltaren, and ongoing supervision by his local medical officer and neurosurgeon or physician. I therefore allow the sum of $7,500 for the future. 122For past wage loss, I accept the plaintiff's submissions that his earning capacity should be calculated at $900 per week. Mrs Bennett's contribution to the business was minimal and 10% represents a fair assessment. Notwithstanding that Mrs Bennett drew the sum of $600 per week from the company's bank account, that money represented household expenditure expended to the benefit of both her and the plaintiff. The assessment of damages for loss of earning capacity requires identification of the capacity that has been impaired or lost and the financial loss occasioned as a result - see Husher v Husher, supra. Here, it was the plaintiff who lost the capacity to earn income as a licensed truck driver by contract delivery work with the defendant. Because he had to employ another driver at $1,500 per week plus GST, he is entitled to be compensated for the whole of his loss of earning capacity from the date of accident until the date of judgment. I therefore award him the sum of $900 for 234 weeks. That amounts to the sum of $210,600. 123Past loss of superannuation on that amount calculated at 11% equals $23,166. 124I am satisfied that the plaintiff would have worked to age 70. He had worked hard all of his life and had no intention of retiring at 65 on the age pension. I accept his evidence that it did not come into his consideration. In Medlin v State Government Insurance Commission (1995) 182 CLR 1, the High Court held that the test for diminished future earning capacity is whether that diminution of capacity "is or may be productive of financial loss", applying its earlier decision in Graham v Baker (1961) 106 CLR 340 at p 347. Here, it is clear that the plaintiff has suffered a diminution in earning capacity that will be productive of financial loss to age 70. I therefore allow the claim sought by the plaintiff in the sum of $105,000. Future superannuation at 12.22% equals $12,830. 125In respect of the claim for past domestic assistance, I have regard to both the medical evidence and evidence of the plaintiff and Mrs Bennett in respect of that claim (see Haleluka v Coles Supermarkets, supra). The plaintiff has passed the threshold in respect of s 15 of the Civil Liability Act ("CLA") and required 14 hours per week for the first three years following the accident and an average 10 hours per week thereafter (reducing to approximately six hours per week at the time of the trial). Calculated in accordance with ss 15(4) and (5), for the first three years I therefore allow (14 hrs per week x $27.70 x 156 weeks = $60,496.80) the sum of $60,497.00. For the period from March 2013 to September 2014 I allow the sum of (10 hrs per week x $27.70 x 78 weeks = $21,606.00), the sum of $21,606.00. The total sum therefore is $82,103.00. 126In Berkeley Challenge Pty Limited v Howarth [2013] NSWCA 370 at [148], the Court of Appeal held that in order to be entitled to damages in respect of commercial care services for the future, the plaintiff had to show not only a need for paid commercial care, but also that gratuitous assistance to satisfy that need was unavailable. Here, the plaintiff's wife is providing the gratuitous assistance for which he has a need at the present time. However, I accept his evidence that, given her age, the heavier chores were a bit much for her. I accept the opinion of Dr Millons of his need for assistance with heavier chores of 3-4 hours per week. I also accept the evidence of Mrs Bennett that the plaintiff was doing more to assist her with the housework. There has also been some reduction in the amount of care required and I also have regard to the fact that the plaintiff would have required paid assistance in any event because of his pre-existing medical conditions relating to his back and shoulders. For the future, I therefore allow the plaintiff's claim for paid care of four hours per week for a period of five years, following which, the plaintiff would have required paid assistance in any event by virtue of those preexisting conditions. I therefore allow the sum of (4 hrs per week x $40 per hour x 52 x 5 = $41,600) $41,600.00. 127For tax deducted from the plaintiff's workers compensation payments, I allow the plaintiff's claim in the sum of $17,454.00, in accordance with the principle that the plaintiff has to be put in the position he would have been but for his injury. The plaintiff has had the benefit of the net amount paid after tax was deducted and the whole of the amount of workers compensation payments is repayable - see Fox v Wood, supra. Summary of Damages Non-economic Loss (30%) $127,000.00 Past Out of Pockets $45,055.00 Future Out of Pockets $7,500.00 Past Wage Loss ($900 npw x 234 wks) $210,600.00 Past Loss of Superannuation (11%) $23,166.00 Future Wage Loss ($900 npw x 3 yrs (145.6) x 80% $105,000.00 Future Superannuation (12.22%) $12,830.00 Past Domestic Care $82,103.00 Future Paid Care $41,600.00 Fox v Wood $17,454.00 Total $672,308.00 Orders 128I make the following orders: (1)Verdict and Judgment for the Plaintiff in the sum of $672,308.00. (2)The Defendant is to pay the Plaintiff's costs of the proceedings. (3)The exhibits are to be returned forthwith. (4)The parties are given liberty to apply on 7 days notice for any special costs order. 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: 08 September 2014