District Court New South Wales Medium Neutral Citation: McArdle v Americold Logistics Limited [2017] NSWDC 332 Hearing dates: 21, 22, 23 and 24 August 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the defendant against the plaintiff. (2) Plaintiff pay defendant's costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days. Catchwords: TORT – personal injury – injury in the course of work duties – whether injury caused by negligence of defendant – expert evidence issues - causation – contributory negligence – s 151Z Workers Compensation Act - quantum of damages - no issue of principle Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5R and 15 Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Fox v Wood (1981) 148 CLR 438 Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43 Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716 Kay v Sydney Airport Corporation Limited [2014] NSWSC 744 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 R v Turner [1975] QB 834 White v Logen Pty Ltd as Trustee for Byrn Family Trust [2014] NSWCA 159 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Plaintiff: David McArdle Defendant: Americold Logistics Limited (ACN 004 902 998) Representation: Counsel: Plaintiff: Mr A D Campbell Defendant: Mr P S Jones Solicitors: Plaintiff: Law Partners Compensation Lawyers Defendant: HWL Ebsworth File Number(s): 2015/309809 Publication restriction: None Judgment The parties and the proceedings before the court 1. The plaintiff brings proceedings for damages for an injury he suffered on 19 November 2013 while working at the defendant's premises at Prospect in the State of New South Wales. 2. The defendant provides temperature-controlled warehouses for the storage and packing of goods which are packed and transferred in bulk from the premises to locations around Australia. The plaintiff was working as what is called a "picker and packer" at the defendant's premises by reason of a contract the defendant had with a labour hire company (hereafter "Rush Recruitment") to provide workers Rush Recruitment provided. 3. The circumstances in which the plaintiff was injured are as follows. The plaintiff had commenced work at the defendant's premises in September 2013 as a "pick and packer" at its premises at Prospect. He was transferred to the freezer section the day before the accident to carry out the collection and packing of "Chrisco" packages (occasionally misspelled in the transcript as "Crisco"), which were individual Christmas hampers pre-ordered by customers direct (as opposed to the large supermarket chains for which the company more usually prepared packaging of refrigerated or frozen goods). The accident occurred while the plaintiff, in the course of collecting the goods for these "Chrisco" hampers, was bending and stretching in order to pack the pallets in accordance with his instructions. 4. The precise nature of the work the plaintiff was required to perform (which was the subject of expert evidence) was the subject of challenge during the hearing. It is set out in the statement of claim to be as follows: 1. The defendant required the plaintiff to "pick and pack" between 170 and 180 cartons of items per hour, calling this a "target pick rate". 2. The plaintiff's performance was monitored and determined with regard to this "target pick rate" and if the plaintiff did not reach it, he was unlikely to be allocated further shifts with the defendant. 3. In order to comply with the target pick rate, the plaintiff had to work at speed in environments which were as low as -35°C at times. 4. The tasks the plaintiff was performing were "robotic, repetitive and encouraging of inadvertence" (paragraph 4 of the statement of claim). The issues in the case 1. The issues are as follows: Liability 1. What were the factual circumstances involved in the alleged subject incident? 2. Was the risk of harm to the plaintiff foreseeable, not insignificant and, in the circumstances, would a reasonable person in the defendant's position have taken precautions (s 5B Civil Liability Act 2002 (NSW)) 3. But for the alleged negligence, would the harm have occurred? 4. Was the plaintiff's injury caused by any negligence of the defendant? (s 5D) 5. Would it be appropriate for the scope of the defendant's liability to extend to the harm so caused? (s 5D) 6. Has the plaintiff established, on the balance of probabilities, all relevant facts on the issue of causation? (s 5E) Contributory Negligence 7. Whether the plaintiff failed to exercise reasonable care for his own safety on 19 November 201 and thereby caused, or contributed to, his own injury. (s 5R) 8. If so, what is the extent by which any damages ought to be reduced? Section 151Z(2) 9. Whether the plaintiff's employer, Rush Recruitment Group Pty Ltd t/as Rush Recruitment Group (Rush Recruitment), breached the non-delegable duty of care it owed to the plaintiff. 10. If so, what is the extent of Rush Recruitment's liability to the plaintiff? 11. Given the plaintiff's assessment of less than 15% whole person impairment, to what extent should the plaintiff's damages be reduced by operation of s 151Z(2) of the Workers Compensation Act 1987 (NSW)? Quantum 12. What injuries did the plaintiff suffer on 19 November 2013? 13. What was the extent of any injury suffered by the plaintiff on 19 November 2013 and, in particular, did the plaintiff suffer a musculoligamentous strain to his back, or was there some discal pathology relating to the subject incident? 14. Did the plaintiff suffer any psychiatric injury relating to the incident on 19 November 2013? 15. To what extent, if at all, have the continuing disabilities which are particularised in these proceedings, and the plaintiff's current symptomatology, been caused by the incident on 19 November 2013? 16. What damages, if any, are to be awarded for non-economic loss? 17. Whether the plaintiff is capable of continuing his pre-accident employment with Rush Recruitment. 18. To what extent, if at all, is any: (a) Past economic loss; and/or (b) Future loss of earning capacity and/or any future economic loss; are the result of an injury suffered by the plaintiff on 19 November 2013. 19. What medical treatment, if any, has been necessary as a result of any injury suffered on 19 November 2013 and therefore what, if any, past out-of-pocket expenses are recoverable by the plaintiff? 20. Whether there is any need for any further medical treatment, as a result of any injuries suffered on 19 November 2013 and, if so, what future out-of-pocket expenses are recoverable by the plaintiff? 21. Has any injury suffered by the plaintiff on 19 November 2013 resulted in any need for domestic assistance and/or attendant care and, if so, how much assistance, or care, did he need and does this satisfy the thresholds under s 15 of the Act? The plaintiff's evidence 1. The plaintiff, who left school in year 11, has worked in labouring jobs for nearly the whole of his adult life. He held a number of general labouring type jobs before commencing employment with Rush Recruitment (see Annexure A), and had been employed by Rush Recruitment approximately two years before the incident in question. The plaintiff's worked in freezer and cold storage premises not only for Rush Recruitment but in his labouring job for approximately 6 to 12 months beforehand, at Swire Cold Storage. 2. The plaintiff had been sent by Rush Recruitment to work for the defendants at their Prospect premises in about September 2013. At the commencement of his work at the defendant's premises, there was an induction for the benefit of new staff, which was carried out by Rush Recruitment. After the induction, he was sent to work in the distribution centre in the main warehouse, picking frozen products and frozen grocery items (T 44). 3. The plaintiff said he was transferred to the second warehouse to pack Chrisco packages (where the accident occurred) only "a couple of days" (T 44) prior to his accident. He described his work conditions in the Chrisco section as follows: "Q. What were you doing in that area? A. Picking boxes for a company called Chrisco, Chrisco Hampers, and - yeah, it's all the frozen - frozen products that go out to people's houses. Q. Mr McArdle, when you were working in the main grocery section, how were the orders filled? A. It was all done by voice pick, and - yeah, you just go up and down the aisles, you did have a pick rate that you had to sustain by, and - yeah, if you didn't keep up with that pick rate, well, then, yeah, you wouldn't be offered any more shifts, and basically terminated." (T 44.39-.48) 1. He was asked to describe what a "voice pick" was and explained: "Q. Could you describe what you mean by voice pick? A. You've got a headset on, and a little machine that clips on to your belt, and that feeds all the information; what aisle you have to go to, what pick location. Then you've got three numbers that you've got to confirm when you got to that pick location, that registers, yeah he's at the right pick location, then it'll tell you how many items you've got to pick. And you've got to confirm, seven, and then yeah." (T 45.4-.10) 1. The plaintiff described the "pick rate" as follows: "Q. What was the pick rate there? A. In the grocery section I was minimum 170 per hour. Q. What about the milk section; is that - is there a similar pick rate? A. There's a similar pick rate, but because it's done totally different; you're picking up crates at a time. Q. I won't talk anymore about the milk section. What about when you're working doing the Chrisco ordering, was there a pick rate for that section? A. As far as I knew there was. You had to sustain enough, but with the Chrisco, it was more about being accurate. So like you had to be 100% accurate with your pick, but you still had to pick enough that the managers would be happy to keep you in that section." (T 46.1-.14) 1. The plaintiff said that he started work at about 1.00 or 2.00 in the afternoon on 19 November 2013 and that the accident occurred at approximately 5.20pm. He had a 10-15 minute break in the middle, but otherwise was filling Chrisco orders, which he described as follows: "Q. What sort of - what was required for you to perform that task? A. You pick your pallets up outside, and then you drive into the - you pick the pallets up from the loading dock area, and you drive-- Q. When you say, drive it inside, what did you use to drive it? A. Electric pallet jack. Q. Thank you. A. Then you drive inside and then once again, you just go to your pick bays and start picking your order. Q. Can you describe a pick bay; what is it? A. Pick bay, I'm pretty sure in most that section, was actually raised by about half a foot off the ground, and they're two deep, one pallet at the front, the identical pallet behind, and it might tell you to pick three cartons, so you pick three cartons on that, and then just go to your next bay and pick your product from there. Q. What's a carton; is it cardboard? A. Sorry? Q. What is a carton; describe a carton. A. Most of them cartons were a lot larger than, like your normal meat pie cartons, so to speak. They're probably about two foot long by one and a half foot by one and half foot high. So they were actually quite large cartons. You'd only fit, maybe four to a pallet, and then may be three high. Q. What was the weight of those cartons? A. They varied, depending on what was inside. Some stuff only had, say frozen bread or something in it, and then others might've had frozen peas or something inside. Q. Can you give me a range of the weights? A. Range from about maybe 2 kilos to 20, depending on the box. Q. How many cartons would you pick in an hour; the Chrisco section? A. I don't know to be honest because I was only there a day and a bit before I ever seen my productivity. Q. Now, compared to the velocity of picking that you did in the grocery section, was it faster, slower, the same; can you tell me? A. Probably about the same, or maybe a bit slower, because you went through your pallets a lot more often, because as I said before, you might only be able to fit 12 or 16 cartons to a pallet before you've got to go back out, and wrap it, and then stage it." (T 46.32-47.26) 1. The plaintiff described the pallet wrapping part of his job as follows: "Q. Now, can we talk about the pallet wrapping exercise. I take it you've got your pallet jack? A. Yes. Q. Then after your pallet is full, where do you take it? A. Well you can either wrap it inside the warehouse if the aisles are empty, or you go out on to the loading dock and just find somewhere where there's enough space for other people to go around you, but also to make sure there's enough space to drop your pallet, pull your machine away from the pallet, and walk around while wrapping it. Q. Now, these pallets jacks, they can't raise the pallet above the ground, can they? A. No. Your twines go in between the pallet beams. Q. They raise it a little bit? A. Yeah, they raise it maybe 6 inches off the ground, and you drive round like that. Q. How did you once you remove the pallet jack, the pallets sitting on the ground, correct? A. That's correct. Q. Can you describe the mechanism of wrapping the pallet? A. Because you only had about two or three layers of products, you had to sort of tie your shrink wrap - like you pull your shrink wrap out, and then you tie that, either slit it in between two boxes, or you tie it to the bottom of the pallet, and then walk around the base of the pallet twice, and then start making your way up the pallet by overlapping it by, what's called 50%, which gives you a double wrap. Q. All right. Now, can you describe the shrink wrap; what is it? A. Shrink wrap's just a plastic film-- Q. You've got your arms apart by about-- A. Probably about 70 centimetres. HER HONOUR: You agree on that? Okay, thank you. WITNESS: And you put your fingers in the two ends once the shrink wraps tied to the pallet and then you walk around. CAMPBELL Q. Think we all know what glad wrap is, and the like; is this a big roll of glad wrap, effectively, is it? A. Effectively, yeah, it's just a lot stronger. Q. A lot stronger. Then you put a finger in either end of the roll-- A. Yes. Q. --so that it spins on your fingers as you're walking around? A. That's correct. Q. The wrap is vertical to the - perpendicular to the ground as you're walking around, I take it? A. Yes, it's horizontal as you're walking around. Q. Straight up and down? A. Straight up and down Q. And you're walking around? A. Around, yeah, I think it's a personal preference whether you go forward or back. I always went forward, that way then which to me is the correct way, because that way then you're always looking where you're going. Q. As I understand it, your evidence is that you start with the wrap at the ground? A. That's correct. Q. Walk around couple of times against some purchase, and then you go up to the top-- A. And then, yeah, you slowly make your way up. Q. How many times would you have to go around before you got to the top? A. All depends on how big the pallet is. Q. These pallets at the Crisco area would you say around about three high; how long would that take? A. Well, three high could be 1.2 metres high in height, plus the height of the pallet as well. But then sometimes it's only one layer. So you might only have to walk around it two or three times. If it's going up three layers, yeah you might be wrapping up maybe seven eight times. Q. When you got to the top, did you have to go back down, or is that-- A. No. Because you're overlapping it by 50%, that's given effectively a double wrap, and that should be strong enough to hold. Because as you're walking around, you're pulling the shrink wrap so it's tight, so it's got a good tension on it, and that second one overlaps it actually - yeah. Q. Now, you've - was that method that you've described the same sort of method that use to use in the grocery section as well? A. Yes." (T 47.28-49.20) 1. The Chrisco section was refrigerated, although the word "refrigerated" was explained by the plaintiff to be akin to working in a freezer (T 49). He explained: "Q. How do you know what the temperature is? A. We were all told when we first started that the milk - I think it's minus 4, and the freezer, which is the main distribution centre, and Crisco, is at minus 35 because it's all frozen products. Q. Who told you this? A. When we done the inductions. Q. Who told you this? A. It be Rush Recruitment when they do the induction." (T 49.42-50.1) 1. While a challenge was made to this evidence, on the basis that any admission by Rush Recruitment as to the temperature would not be an admission against the defendant, I note that this was the evidence of the plaintiff's understanding of his working conditions given in the course of his recruitment and regarded as admissible on this basis. 2. The plaintiff wore what he described as "a freezer jacket, freezer pants and freezer boots" which was given to him by Rush Recruitment (T 50). The plaintiff was aware of what the temperature was working in refrigerated and freezer sections of this kind from his previous work (T 51). The plaintiff identified a manual handling report for the defendant which he signed on 1 October 2013 after completing his training which said: "While working in the freezer, always wear appropriate personnel protective equipment, e.g. freezer suit." 1. The plaintiff identified this equipment as being what he wore (T 52). However, parts of his body were still cold, especially his face, because the balaclava covered his head and not his face. 2. The plaintiff described the ten minute "thawing out" practice at T 53 as follows: "Q. I think your evidence is that it was colder than the milk section? A. That's correct. Q. Now it also says - that is the same document that you've got - withdraw that. Was there a practice in respect to getting out of the freezer during a shift that you had to do? A. Every 50 minutes - well, every hour you had a 10 minute, what's called thawing out. So basically you go into the freezer for 50 minutes, work, and then you come out for 10 minutes just to thaw out, because other than that you've got a good chance of getting hypothermia." (T 53.5-.14) 1. Although this last sentence was objected to (by reason of the reference to hypothermia) I leave it in to clarify what the plaintiff meant when he gave the following additional evidence at T 53: "Q. Now, who told you to take that 10 minute? A. The supervisors at Americold. Q. Why were you told to do that? A. Once again, because other than that, you breath in the cold air too much, and can do damage. Q. That's why they told you? A. Yes. Q. When did they tell you that? A. When you first start there. Q. Now, is that practice a practice that was adhered to? A. Yes." (T 53.37-54.1) 1. The plaintiff described his work duties as follows: "Q. Now, in relation to the picking, when you went to pick the cartons and put them onto the pallets, you said that there was - they were kept in two pallets, one behind the other at the pallet bays, correct; or at pick bays? A. That's all for fast moving products, yes. So the slower items would only have one pallet. Q. From time to time, were you required to reach in to pick up the cartons? A. Quite often, yes. … Q. What heights would they be from when you're picking them? A. Could be anywhere from the ground level, and up to, I think, 1.4 or 1.5. Q. In order to pick them and put them on to the pallet, what were you required to do with your body? A. Well, you've got to - you weren't technically allowed to stand on both the pallets, one foot always had to be on the floor, on the ground, and then the other foot could be on the pallet, and then depending if there's only, say two products left on the back pallet, you've got to stretch. But also too because the pallet racking's above your head, you've actually got to duck under and make sure you don't smack your head on the way out, which happened often. Q. Again, were you required to do that sort of work in the Chrisco section on the day of your accident? A. Yes, exactly the same." (T 54.3-.32) The plaintiff is injured in the course of his work 1. The plaintiff described the circumstances of his accident as follows: "From memory the pallet I was wrapping was only two stacks high. I think there's maybe seven cartons on it. I put the shrink wrap in between the pallet and the bottom carton, and as I've started walking around, I felt a sharp pain in my lower right side, and yeah, I thought straightaway that that doesn't feel right. So I sort of walked around, trying to stretch it out. I eventually finished that pallet and I put that where it was getting staged. Picked up the next order, started picking that, and I think I only picked two boxes off that order, and I just said, no there's something wrong with my back, so I asked one of the other guys to finish off my order, and then I went and seen the supervisor straightaway." (T 54.39-.48) 1. The plaintiff filled out an incident report (Exhibit B) with the assistance of his supervisor. 2. The plaintiff described the method he used to wrap the pallet as being demonstrated to him by the defendant's full-time employee who was assigned to him as a sort of "buddy system". There were also mechanical advisers to assist in pallet wrapping but these were not accessible: "Q. Are you aware if there is any mechanical devices on the premises to assist in pallet wrapping? A. There were only three machines throughout the whole warehouses. Two of them were in the milk section, which, unless you were only doing milk, you weren't allowed to go in there and use them, even if there was no one in there, you still weren't, and the other pallet wrapping machine was from the Crisco area, it was down the very far end of the warehouse, outside the lunch room, but nine times out of ten there was either pallets getting staged all around there, blocking the access to it, or when people would go out and have their ten minute break, or lunch breaks, morning tea breaks, afternoon breaks, they would park their machines all around where this pallet wrapping machine was. So it wasn't accessible 90, 95% of the time. Q. How far away from where you were working was that other machine that you say was not accessible? A. I would estimate 80 metres. 80 to 120 max. Q. Can I show you a page of machines. Do you recognise those machines or any of those machines look like the‑‑ A. Probably the top middle one, but it would have had, like, the top left one has got a ramp which allows you to drive your pallet machine up onto the pallet wrapping machines, and then you drop your pallet, and then you drive your electric pallet mover off, and then set the machine up. Q. Those are the machines which are machines which have a turn table? A. Yes. Q. And an automatic‑‑ A. Arm. Q. Arm? A. Yep. Q. Are they the sort of machines that were available? Two in the milk section and one at the other end of the warehouse? A. That's correct. EXHIBIT #D PICTURES OF PALLET MACHINES, TENDERED, ADMITTED WITHOUT OBJECTION Q. Mr McArdle, when you were working at Squires, were you required to wrap machines with pallet wrap? A. No, by hand. Like‑‑ Q. Sorry, were you required to wrap the pallets? A. Yes. Q. With pallet wrap. What was the system that you used there? A. There we used forklifts instead of the electric pallet jacks, which enable you that if you only had a small pallet, you could stack up on - like there'd be all - might be a stack of 20 pallets, so you might grab two or three empty pallets and then you put your pallet on top of them, that raises it up, that eliminates you from bending down on the ground, so you can just basically walk around and wrap the pallet at normal height. Q. With the pallet jacks, I think we said before, you would've been unable to raise the pallet that you were wrapping above more than about six inches; is that right? A. Well, you can't wrap it while your machines inside. Q. You wouldn't have been able to raise that on to a platform? A. No, you can't lift it. (T 55.37-56.48) 1. The plaintiff identified the exact part of his body where he felt pain and the position he was in when he was walking around the pallet by making motions in the witness box demonstrating that he half moved his body while walking around and wrapping with his right hand down lower to the ground walking forward in an anti-clockwise direction around the pallet. 2. After the plaintiff had finished his report, he did not complete his shift for that day. He went straight to the medical centre and, as his regular general practitioner was not available, saw another doctor. 3. The defendant called a long-term employee, Mr Sobol, who described the work procedures in Americold. Before considering the issues raised with the plaintiff in cross-examination, I will set out the information Mr Sobol provided about how this very closely monitored "pick and pack" process was carried out. The evidence of Mr Sobol 1. Mr Sobol began working for the defendant in 1998 as a picker, packer and store person, working his way through the rank of team manager and project manager from 2004 onwards. He was part of the implementation group responsible for opening the Prospect store in 2009 and he remained there as part of a continuous improvement group, including taking over the site when the operations manager resigned and handing it over to the new operations manager. 2. As a result, Mr Sobol was familiar with the workings of the factory both from the shop floor as well as from management (T 131-132). 3. He described the Chrisco hampers as a special line, for a short period of the year prior to Christmas, where the goods were sent direct to consumers: "A. Chrisco Hampers are basically a Christmas line and people will pay like $10 a week or something throughout the course of the year, and - and they'll - they will receive a - a hamper, like, a Christmas hamper at the end of the year. So, there are - I - I think there are many branches to the Chrisco Hampers, but obviously as Americold, we're in temperature controlled logistics, we look after the - the frozen hampers. Q. And does it operate only during the month leading up to Christmas, the actual Chrisco production line? A. Yes, usually between September and - and Christmas." (T 132) 1. Mr Sobol described the how the much faster voice pick system worked as opposed to the label system (which the defendant contends was the system in fact used for Chrisco): "Q. What's a voice pick system? A. So, a voice pick system would be basically a label system but through a voice headset. Q. Why would you use a voice pick system rather than a label system? A. It frees up your hands so that you can actually be more efficient with your - with your picking. So, as you move through the, through the pick path, your hands are free, and all you do is talk into the headset. They read the order to you, the location, you have to read back a check digit which affirms that you were in the - confirms that you were in the right location, and - and how many cartons to pick, and then you continue on. Q. Does that system have any effect in terms of the speed at which you're able to pick the cartons? A. It - it does. Q. What effect? A. Well, your - your hands are free, so you're no longer going to a location, having to peel a label off and place it on the carton, you just continue through them as the voice tells you to. Q. And does that make it faster, slower, or the same? A. Faster. Q. In the grocery section, not the Chrisco section, but in the grocery section back in 2013, did they use a voice pick system at Prospect? A. Yes." (T 139-140) 1. He described the job of a picker, the job carried out by the plaintiff: "A. Yep, so with - with the - with the Chrisco line, it's a matter of - they will have a - a - we call it a pallet track, so like a motorised pallet lifter and they'll pick up a pallet. And then with the - with the cartons that are placed in - we call them pick, pick faces. So, the - the picker would go around with - on this pallet track and pick the cartons that are relevant to that specific order." (T 132) 1. Mr Sobol explained to the court how the defendant's factory was organised by referring to contemporaneous business records (Exhibits 3 and 4). In particular, he showed the court the records for Tuesday 19 November 2013, the day of the plaintiff's injury, and explained how the records noted that a series of orders had to be picked up and placed on pallets and leave the warehouse at a particular time (T 133). He then showed the court Exhibit 4 which demonstrated that the plaintiff started his shift at 2:30pm and was one of three pickers and packers on that day, with one team leader and one forklift driver. 2. These documents significantly vary from the plaintiff's evidence. They show a much slower "pick and pack" rate than he claimed, because the voice pick system was not used, the target number of cartons to be collected by the pickers per hour was 70 and the pallet height was 1.8 metres: "Q. The next one's got "cartons", and then there's "17". What does that mean? A. That's how many cartons belong to that run and con. Q. And then it's got "pallet height 1.8". What does that mean? A. It means that pallet can be built up to 1.8 metres. Q. Is that a standard height? A. There are two heights. So, there's 1.8 metres and 1.2 metres. So, depending on where the hampers are going and in what size truck they will be going. Q. The next one is "picker's name", and we see "David McArdle". What does that mean? A. That's the picker that picked that order, or that run. Q. That run, being run 1, consisting of 17 cartons. Is that right? A. Yes. Q. And then it's got "Chrisco pallet labels 1" and "pallets produced 1". What do they mean? A. So, the Chrisco pallet labels is an estimate of how many pallets that - in that instance, that 17 cartons would make up. If the estimate was incorrect, it would go to the "pallets produced" column, which the picker will change, or the team leader. Q. So if the picker had needed two pallets, there would be a "2" under "pallets produced". Is that right? A. Correct. Q. In this case, it was estimated there would only be one pallet, and there was one pallet produced. Is that right? A. Correct." (T 134-135) 1. Mr Sobol went on to explain: "Q. How many in that run? How many cartons were there on that pallet? A. 17. Q. What was the height of the pallet? A. I couldn't tell you what the actual height was, but it can only be built up to 1.8 metres. Q. The document refers to two cycles. Do you see that, at the top? A. Yes." (T 135) 1. However, according to the records, the plaintiff is only involved in cycle 1 (T 135). This meant it was possible to use these records to estimate exactly how many runs the plaintiff was involved in picking and packing: "Q. But I think the plaintiff, Mr McArdle, was only involved in cycle 1. Is that right? A. According to this, yes. Q. Looking at those documents, can you tell us which runs Mr McArdle was involved in picking and packing? A. Run 1, run 4, run 7, and run 10. Q. Looking at that document, are you able to tell us how many pallets he produced on those runs? A. Seven in total. Q. Looking at that document, are you able to tell us the total amount of cartons that were picked for those seven pallets? A. 133, if my maths is correct." (T 135) 1. Mr Sobol emphasised the difference between a Christmas pack prepared for individual consumers with bulk packs provided for supermarkets also contributed to the much slower "pick and pack" rate: "Q. Was there any particular reason - besides it being a label system - that there was the recommendation of 70 cartons per hour? A. The - the - the boxes are generally a little bit larger in the Chrisco pick, but it's also with Chrisco, it - it's going to the end consumer which is, you know, someone's home address. So, there's a very strong emphasis placed on accuracy. As I quite often tell my guys, you don't want to be - if a customer's expecting a bag of prawns and you deliver a bag of potatoes, they're going to be pretty upset. So, that's all taken into account to ensure that it's all done 100% correct." (T 140) 1. Mr Sobol also gave a very different description of the shrink wrap used, stating that it was already pre-stretched, which meant that the "pick and packer" did not need to pull on it as the plaintiff had claimed: "A. All the pickers have a role of stretch - pre‑stretch - pre‑stretched stretch wrap on their pallet movers and they will wrap the pallet starting at the top, walk around to the bottom of the - top of the - the actual pallet itself, and then go back up to the top. So, that gives it two secure wraps around the pallet. Q. The wrap, I've heard it referred to as something similar to Glad Wrap, the plaintiff says that it's a bit tougher than Glad Wrap. It's been referred to as shrink wrap. What's the correct name for the wrap? A. We call it stretch wrap, shrink wrap, it means the same thing. Q. Will you tell us please how that is contained. Is it in a roll or a box, or what? A. It's - it's in a roll. Q. And are you able to tell us the dimensions of a full roll? A. A full roll would be - I'm not sure how high that would be, maybe about 50 centimetres, there abouts, and a - and roughly that round. Q. Can you give us some estimation of how round that is? A. I'm thinking - so sort of circumference would be maybe 10 centimetres." (T 142) 1. This was agreed to be 15-20 centimetres in diameter, as it was a round object (T 143) and weigh approximately 1 kilogram (T 143). 2. Mr Sobol explained how the pre-stretched nature of the wrapping plastic meant it simply had to be walked around, not pulled: "A. So it's - it's pre stretched. Q. What's that mean? A. So I can recall pre 2010 days it used to be like the glad wrap where as you would walk around a pallet you would need to stretch it as you go along, however now and the rolls were a lot heavier. Q. Yes. A. Whereas now it comes in pre stretched wrap, which means all the picker needs to do is walk around the pallet as he or she walks around the pallet it would actually cling to‑‑ Q. I see. A. ‑‑the boxes and actually - it would actually tighten without actually having to pull on them. Q. Are you saying now and then you've talked about pre 2010, what was the position in November 2013, was it a pre stretch or did you have to stretch it? A. Pre stretched. Q. And was that changed in about 2010? A. Yes." (T 144) 1. He was asked why products were hand wrapped rather than wrapped by a machine. He said that wrapping machines were used specifically for milk because the crates tended to move easily along the pallet (T 145). The Chrisco packs, because of their individuality, were not suitable for bulk wrapping by a machine. 2. In cross-examination, Mr Sobol was asked about the manner in which new employees were not only were given an induction but were working under the supervision of an Americold permanent employees for the first couple of weeks, with a slightly slower pack and pick rate which gradually increased to about 70 cartons per hour. The relevance of this is the manner in which the plaintiff was wrapping the pallet, as his evidence on the method he used to wrap the pallet (namely to start at the bottom and walk in an anticlockwise fashion) was contrary to that given by Mr Sobol (T 150-151). 3. Mr Sobol agreed that this was not in accordance with the shrink wrapping manual. Nor did he agree that it was necessary, despite the shrink wrap being pre-stretched, to maintain some tension on the shrink wrap in order for it to be effective in wrapping the pallet: "Q. But you have to, as you walk around, maintain some tension on the shrink wrap in order for it to be effective in wrapping the pallet. Do you accept that? A. No. Q. Is it your evidence that in order to do this task safely it's important to ensure that you don't put too much tension on the shrink wrap? Is that what you're saying? A. So with the pre‑stretched stretch wrap you have to think of like a toilet roll, so - but obviously a lot longer, so what you do is you actually put your fingers through the stretch wrap, and you literally just walk around. There is no need to try and hold it tight to try and stretch it. So you literally can walk around the pallet like that. Q. And so if someone was walking around the pallet maintaining tension, you would say that would be unnecessary and against good practice. A. Yes. Q. And again if someone was doing that, you would expect that when they were being inducted or shown how to do it, they'd be told not to do it. A. Yes." (T 151) 1. Mr Sobol was asked about the manner in which the plaintiff suffered his accident, and whether he needed to adopt an awkward posture in order to retrieve cartons of up to 23 kilograms. Mr Sobol said that this was not necessary as there was a procedure to drag the cartons forward so it was not necessary to reach out: "Q. So, they're reaching in and picking up cartons up to 23 kilograms from time to time. A. The proper process is to actually drag the cartons forward, so you're actually not reaching out. Q. There may be proper processes, but were they always adhered to. A. I would - in my experience, I would say yes, because that's what we enforced." (T 155) 1. He was asked if there were automatic wrapping machines on the premises (which are the subject of a Notice to Admit Facts). Mr Sobol said that he could not say that these were available, but acknowledged that these machines allowed the pallets to be wrapped without requiring workers to bend over to do it (T 156). 2. Two other matters about which Mr Sobol gave evidence are of relevance. The first is that the work system had been the subject of risk assessment prior to its implementation (T 154). The second was that Mr Sobol had researched the records dealing with Chrisco work line injuries back to 2008. He had only found one prior incident (which did not result in an injury), but that related to a roller door which had almost come down on a worker while that worker was loading Chrisco pallets onto a truck and was unrelated to the pick system. 3. Mr Sobol was an impressive witness who answered questions objectively and to the best of his abilities, as his answer in relation to the whereabouts of the machinery in question evidence. His evidence was consistent with the contemporaneous document he produced. 4. Where his evidence is in conflict with that of the plaintiff, I prefer the evidence of Mr Sobol. The plaintiff's time at the defendant's premises was brief and, as his answers in cross-examination show, his recollection of most aspects, even of the hours that he worked on the day in question, is clearly unreliable. Challenges to the plaintiff's description of the system of work 1. The system of work carried out by the plaintiff was the subject of challenge based on contemporaneous work records and the evidence of the plaintiff's supervisor at the time, Mr Sobol. 2. I have set out above the extracts from the statement of claim which are based on the plaintiff's instructions. Their contents are clearly inconsistent with the defendant's records. 3. The plaintiff also relied upon an expert report which was based upon those same instructions. For example, at paragraph 208 of the expert report of Dr Fairfax of 8 April 2016 the following passage is set out: "I consider that the injury sustained by the plaintiff was directly caused by the unsafe conditions in the workshop at the relevant time. The work was heavy and by 4.5 hours into his shift the plaintiff's muscles would be fatigued from the heavy, repeated lifting and from the workplace. I consider that bending forward, twisting and starting to pull on the plastic wrap was the "last straw" and this task clearly was the immediate cause of the plaintiff's back injury." 1. Dr Fairfax's observations are based upon the instructions that the plaintiff had been carrying out this kind of heavy work at high speeds over a long period of time and that, on the day in question, he was 4.5 hours into his shift and fatigued. 2. All these statements are incorrect. First of all, the plaintiff acknowledged he had only worked on the Chrisco line for one day prior to the time of the subject accident (T 68). Secondly, the plaintiff was not working for 4.5 hours; he commenced work at 2.30pm, not 1.00pm, and the time given for the accident was 5.00pm, not 5.20pm, the time nominated by the plaintiff for his injury (see Exhibit C). 3. The most significant error made by both the plaintiff (and as a result Dr Fairfax) is in relation to the "pick rate". Exhibit 4 shows that after the plaintiff commenced at 2.30pm as one of three pickers, the target number of cartons to be actioned by the pickers was 70 (T 150) and the plaintiff was involved in four runs. These were as follows: 1. the first run consisted of 17 cartons and used one pallet; 2. the second of the four runs performed by the plaintiff (run no.4) consisted of 45 cartons with two pallets utilised; 3. the run on which the plaintiff suffered his injury, run 7, consisted of 39 cartons with two pallets utilised; and 4. run 10, for which the plaintiff only picked two cartons (T 82) consisted of 32 cartons on two pallets. 1. As Mr Sobol explained in his evidence (set out in more detail below), even allowing for the plaintiff to have been injured at 5.20pm as claimed, he could only have picked 103 cartons, which would be an average of 34 cartons per hour, not "between 170 and 180 cartons of items per hour" as asserted in the statement of claim and as told to Dr Fairfax. Dr Fairfax thought that the plaintiff was working five times faster than he actually was. That is an enormous difference, and one which must render her findings wholly unreliable. 2. The accuracy of Exhibits 3 and 4, the contemporaneous business records recording the plaintiff's activities, was not challenged. The rate at which the plaintiff was picking and packing was a very low rate, as Mr Sobol confirmed (T 141). Was it necessary for the plaintiff to bend and stretch? 1. The plaintiff had only commenced to do this work the day beforehand. He was, however, familiar with the process of picking and packing and using shrink wrap to hold the pallet of selected goods together. He was also aware that there were different picking systems, and that a voice pick system was considerably faster than a paper pick system. He was, however, unable to recall which of these systems was used (T 73), although he conceded that the system was the paper pick system when his memory was refreshed about being supplied with labels (T 73). This means that Dr Fairfax's assumption that the plaintiff was operating on the much faster voice pick system is incorrect. 2. As is set out in more detail below, Mr Sobol explained that the Chrisco pick and pack rate was much slower because of the need for accuracy. These were not packages for an intermediate retailer, but special Christmas goods which went directly to the consumer in the form of Christmas hampers (T 140). Because these were packs designed to go directly to customers, as opposed to other retailers, the packers were in fact working at a much slower rate. Why in those circumstances was it necessary for the plaintiff to adopt an awkward posture? 3. The plaintiff said that he adopted the method that was used by other workers. The plaintiff's explanation was that he had to walk forward dragging the glad wrap in a particular manner because this was what had been demonstrated to him at his induction. Although the plaintiff agreed that the glad wrap was called "shrink wrap" (T 84), he denied that the shrink wrap was already pre-stretched (T 85). It was put to him that the correct method of fixing the glad wrap to the pallet was as follows: "Q. Well, it was a label pick so you knew which carton to pick by reference not to a voice pick, that is having headphones, but rather to the label that you were given at the start of the work. A. From my recollection I think that label only had the person's details on it, which is basically where it's getting delivered to. Q. Okay. Now, I want to suggest to you that the labels advised you which cartons to pick. A. Right. Q. Do you agree that that may well have been the situation? A. It could have had what type of carton, like what type of Chrisco hamper it was. Q. And I put to you yesterday that the final label in any run was then affixed to the pallet. Do you agree with that? A. Maybe, yes. Q. Now, in relation to the wrapping process, you told the Court yesterday that it was not dissimilar, the material used, to Gladwrap. A. It's called shrink wrap, which is sort of like it, a stretch--" (T 84) 1. If the shrink wrap was pre-stretched, there would have been no need for the packer to apply tension to the containers as he wrapped, as the shrink wrap would actually tighten without having to pull on the plastic. This was an important area of challenge of the plaintiff's evidence. 2. It was also put to the plaintiff that the wrapping machines were used on items such as the milk and milk crates, and not on the individual consumer-bound Chrisco products, which the plaintiff challenged: "Q. Now, the next thing I want to suggest to you is that the wrapping machine - a wrapping machine was never used on the Chrisco products, was it? A. No. Q. You agree with that. A. Yes. Q. And can I suggest to you that the wrapping machine was used on items such as the milk and the milk crates? A. Yes. Q. And the milk crates and milk was generally smaller than the Chrisco products. That's right, isn't it? A. Each crate, yes. Q. Yes. And can I suggest to you that it was used on those smaller crates to stabilise them and they were placed on the wrapping machine? A. That's correct." (T 85) 1. Taking all the above into account, it was not necessary for the plaintiff to bend and stretch in the way that he indicated. The shrink wrap was pre-stretched and all he had to do was to walk around the pallet. He appears to have been wrapping it contrary to the method Mr Sobol said was taught (see Mr Sobol's evidence below), but there is no evidence this contributed in any way to his injury. He was taught how to bring the pallet forward, so there was no need for him to bend and stretch in any unusual way in order to perform any part of his work. 2. The plaintiff made a number of concessions in cross-examination in relation to the accuracy of his description of the work he was performing, including the length of time he had employed it, the speed involved and the nature of the task. These concessions must reduce his credit in relation to how it is that his injury arose from his work methods. Mr Campbell's task is made more difficult by reason of the inadequacies of the expert report he relied upon. The report of Dr Fairfax 1. Dr Fairfax's report may be summarised as follows: 1. The plaintiff was packing goods in accordance with a voice pick system (paragraph 25) at a pick rate of 170 cartons per hour (paragraph 32), which Dr Fairfax estimated at about three cartons a minute (paragraph 137). 2. As a consequence, the plaintiff was "frequently lifting well beyond safe lifting limits when lifting cartons of average weight and attempting to meet the pick rate" (paragraph 141). 3. The plaintiff's accident occurred 4.5 hours into his shift, when his muscles were fatigue from this heavy repeated lifting "and from the work pace" (paragraph 208). 4. It was necessary for the plaintiff to bend forward and twist and strain to pull on the plastic wrap that was the "last straw" (paragraph 208). 5. Machines which were available to perform this work were not used. 6. The plaintiff was working in a cold environment and this contributed to the injury. 1. As a result of my findings of fact, all of the findings of fact upon which Dr Fairfax's opinion are expressed to be based are incorrect. The period of time, the nature and speed of the work and the work conditions (such as his claim that he was working on a voice pick system (as opposed to a label pick system) are simply all wrong. As to the latter, the plaintiff in fact conceded as much at T 73 line 41. Even his evidence about the height of the pallets at 1.6 metres was, if Mr Sobol is accepted, incorrect. 2. Dr Fairfax has relied upon this factual information to conduct an ergonomic assessment of this system of work. She expresses the expert opinion that both the picking and packing work (particularly the speed) and the shrink wrapping task (which requires the worker to stretch shrink wrapping) create foreseeable risk of injuries. The reasonable countermeasure would have been the provisions of automatic shrink wrapping machines, and the defendant's failure to use this system which contemplated the use of these machines meant that the system was unsafe for the reasons set out by Dr Fairfax at paragraph 208 of her report. 3. I first note that there is no assertion that the statements as to the work process made by Dr Fairfax may be relied upon as proof of the fact and the issues of the kind identified in Beaven v Wagner Industrial Services Pty Ltd [2017] QCA 246 do not arise. It is not necessary for there to be an exact correspondence between the assumed facts upon which expert opinions is based and the facts proved in the case: Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43 at [88]. The relevant expertise to provide such report, as ergonomic reports, have been accepted by the New South Wales Court of Appeal where injury involves bending the twisting (see White v Logen Pty Ltd as Trustee for Byrn Family Trust [2014] NSWCA 159 at [22]-[27]). 4. I admitted the reports in question into evidence over objection because the reports are based on expertise which has been applied to the facts or assumptions and, as the plurality in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 acknowledges (at [37]), this requirement is met in most cases "very quickly and easily". However, the nexus between the specialised knowledge and the facts or assumptions is a two staged process where challenge to the factual basis may render the expert evidence valueless for the reasons explained by Heydon JA at [64], referring to the statement to this effect by Lawton LJ in R v Turner [1975] QB 834 at 840: "… Before a court can assess the value of an opinion it must know the facts on which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment counsel calling an expert should in examination in chief ask his witness to state the facts on which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination." 1. In the present case, all of the factual assumptions relied upon by Dr Fairfax (except, possibly, the availability and desirability of shrink wrapping machines) can be demonstrated to be wrong not only by reason of the tender of the defendant's contemporaneous documentation but by the plaintiff's acknowledgements in cross-examination of his errors of description concerning his work hours and conditions, including such matters as whether he was working to a voice pick system or a label pick system. 2. The combined weight of the errors of fact in Dr Fairfax's report must render her report valueless. That includes her observations about bending and stretching as well as the speed and robotic nature of the work. It is not possible for me to isolate one or more factors (such as the desirability of machines to perform the shrink wrapping) in such circumstances. Mr Campbell did not do so; his submission was that the factual assumptions relied upon by Dr Fairfax "had been made out in a relevant sense" (outline of submissions, p 2) and that any discrepancies were of the most minor nature, a submission which I reject. Breach of duty of care 1. The parties agreed that the content of the duty of care owed by the defendant to the plaintiff was to exercise reasonable care in providing him with a safe system of work and with safe plant with which to carry out his work, as well as to properly supervise him and instruct him as to how to carry out his work in a safe manner. This duty arose as the defendant had exclusive control over the system of work. 2. I next consider the relevant provisions of the Civil Liability Act 2002 (NSW). The relevant provisions of the Civil Liability Act 2002 (NSW) Section 5B Civil Liability Act 2002 (NSW) 1. Section 5B of the Civil Liability Act 2002 (NSW) provides: "5B General Principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. Mr Sobol's evidence was that there had been a risk assessment (T 154), there were no prior reported injuries and the whole of the system was under close supervision, as the documentation for the day in question demonstrates. Those documents demonstrate the actual rate at which the plaintiff was working, as opposed to the rate that he considered he was working. 2. There is no evidence that the risk was foreseeable or that the shrink wrapping machine would have made any difference. I am not prepared to infer, in the absence of expert evidence, that the mere fact that there is a machine capable of placing shrink wrappings over pallets which was used (according to Mr Sobol) only for wrapping milk that this would somehow have made a difference to the way in which the plaintiff could have carried out his work. In those circumstances, I cannot be satisfied that the risk was foreseeable, nor am I satisfied that the risk could have been remedied by the use of machinery to shrink wrap the packaging. Section 5C Civil Liability Act 2002 (NSW) 1. Section 5C of the Civil Liability Act provides: "5C Other Principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The same problems in relation to s 5C concerning the absence of expert evidence apply. There is simply no evidence that the plaintiff's injuries could have been avoided if he was performing his work in a different way. Not only has the plaintiff failed to adduce evidence (expert or otherwise) as to whether an automatic wrapping machine would have solved the problem, there is no evidence as to its cost or use in other premises. Mr Jones submits that it is significant that the Chrisco products continue to be manually wrapped. Evidence of a change of procedure is often relied upon as evidence of acknowledgement of s 5C issues. That is therefore a relevant factor to take into account as well. Section 5D Civil Liability Act 2002 (NSW) 1. Section 5D of the Civil Liability Act provides: "5D General Principle (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 1. I am satisfied that the plaintiff has failed to establish breach under ss 5B and 5C Civil Liability Act 2002 (NSW). I will, however, briefly note my reasons for finding, if I have erred in relation to those findings, that the plaintiff also fails to establish evidence of causation (s 5D) in relation to the impact of the injury upon the plaintiff. 2. The high point of the plaintiff's evidence is the report of Dr Bodel, who described the plaintiff's injury (report of 25 February 2016, p 2) and, without exposing his reasons, asserts that this is the causal connection for the annular tear at the L5/S1 disc. Dr Assem similarly expressed such a view, but more helpfully than Dr Bodel, set out the factual basis for doing so. That factual basis was that the plaintiff "was working 8-10 hours per day, five days per work, repetitively lifting 170-180 cartons of frozen food in -35°C temperatures" (Dr Assem's second report of 10 March 2017, p 4). As noted above, this is not a correct statement of the plaintiff's work condition. Of greater concern is that Dr Assem did not express such an opinion in his first report of 15 June 2015, when he did not appear to have such facts put before him. 3. The defendant had pre-existing degenerative conditions. The defendant's expert, Dr Dalton, opined that it was "a matter of speculation" as to whether the pain was in fact discogenic and considered the plaintiff would have been able to return to full time work with physical restrictions after six to eight weeks of convalescence. 4. All of the evidence points to the plaintiff suffering from an annular tear which became evident after he suffered the injury in question. However, whether the plaintiff suffered the annular tear as a result of the work he was performing on 13 November 2013 cannot be established where an accurate picture of the circumstances of the plaintiff's actual working conditions was not given to the plaintiff's experts. Section 151Z Workers Compensation Act 1987 (NSW) 1. In view of my findings as to liability, these observations are brief. 2. The defendant relies upon the presence of representatives of Rush Recruitment on site on a daily basis, which included inspecting the workplace and providing induction. The obligation of Rush Recruitment to provide a safe workplace and safe work system are explained by the New South Wales Court of Appeal in Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 at [5]-[7], and the nature of the non-delegable duty an employer owes is as set out by the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12]. The court should apply the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. 3. These issues are essential fact driven. Mr Jones draws to my attention that in Hennessy v Patrick Stevedores Operations [2014] NSWSC 1716 where an employee slipped and fell on a step which was not under the control of an employer, and the court assessed contribution at 40% (I note that this decision had been overturned on appeal, but that no criticism was made of this assessment: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253) and in Kay v Sydney Airport Corporation Limited [2014] NSWSC 744 at 75%. 4. Rush Recruitment must have known what the work system was, because they carried out an induction at the commencement of the plaintiff's work at the premises. It appears to have been done in a very desultory fashion, according to the plaintiff's evidence. Mr Sobol was not asked any questions about the degree of involvement of Rush Recruitment in this regard. 5. I am satisfied that Rush Recruitment must have known and work equipment to enable them to perform the induction system and that the daily visits to the premises meant that Rush Recruitment staff would have been alert to ongoing problems and difficulties. While I consider the defendant's estimate of 50% is too high, I am satisfied that the factual situation in these circumstances is consistent with that pertaining in Hennessy v Patrick Stevedores Operations and assess the s 151Z contribution at 40% Contributory negligence 1. The plaintiff agreed that (T 72) he wrapped the pallet the wrong way around and that the way he wrapped it was contrary to the manner in which he had been trained. However, the manner in which he wrapped the pallet and the manner in which he was injured were never explained. The report of Dr Fairfax refers to the plaintiff starting at the bottom of the pallet to wrap the packs he had picked, but without explaining why this was better or worse than starting at the other end. 2. The manner in which the plaintiff leaned forward to pull out the pallet does appear to have contributed in some way to his accident, but this is not explained by the medical reports or by Dr Fairfax. 3. All of the evidence points to the plaintiff working more slowly than he was expected to do, but this played no role in his injury at all. Accordingly, I cannot see how the plaintiff's failure to adopt his training contributed in any way to the harm and I would not make any findings as to contributory negligence. 4. In the event that I have erred in relation to my findings on liability, I set out my observations as to the appropriate damages to award. Damages 1. The plaintiff provided the following schedule of damages: Non-Economic Loss $139,000.00 (30% most extreme case) Past Out of Pocket Expenses $ 34,339.17 Future Out of Pocket Expenses $ 20,000.00 Past Economic Loss $139,320.00 ($1,290 x 108 weeks) Superannuation $ 11,770.00 11% of $107,000 Future Economic Loss $100,000.00 Past Domestic Care & Assistance [later withdrawn] $ 13,520.00 $26 per hour x 2 hrs per week x 52 weeks Future Domestic Care & Assistance [later withdrawn] $ 69,084.00 $38 per hour x 2 hrs per week x $38 x 909 Fox v Wood $ 11,359.00 Section 153 Re-Training (employer incentive) $ 27,400.00 TOTAL: $565,792.17 Plus costs 1. The defendant's schedule of damages is as follows: Date of birth: 20 January 1975 Date of injury: 19 November 2013 Plaintiff's age at date of injury: 38 years Plaintiff's age at hearing (21 August 2017) 42 years Medium life expectancy (male) 43.3 years 5% multiplier for 43 years 938.2 Non-Economic Loss $30,500.00 23% of a "most extreme case" under section 16 of the Civil Liability Act 2002 (NSW) (CLA) Past Economic Loss [including past superannuation loss] 20,340.00 Plus 2,237.40 Future Economic Loss Nil Past Out-of-Pocket Expenses See below Future Out-of-Pocket Expenses Nil Past Care and Domestic Assistance Nil Future Care and Domestic Assistance Nil Fox v Wood 2,034.00 Less contributory negligence (25%) TOTAL $21,003.38* 1. Past out of pockets are mathematically agreed at $34,339.17 but this was not included in the defendant's schedule. Nor was any allowance made for s 151Z. 2. By reason of my findings as to liability, my observations as to quantum will be brief. Non-economic loss 1. The plaintiff relies upon the following diagnoses: 1. Dr Bodel diagnoses an annular tear of the L5/S1 disc caused by bending, twisting and rotating (Exhibit A, page 140). 2. Dr Assem diagnoses a chronic mechanical lower back pain secondary to an L5/S1 annular tear associated with a small based disc protrusion (Exhibit A, page 134). 3. Dr Dalton for the Plaintiff describes the source of the plaintiff's pain as "a matter of speculation" but considered the plaintiff would not be able to return to resume full-time work without restrictions. 4. Although the plaintiff's capacity to return to his pre-injury duties is confirmed by Dr Smith, the company went into liquidation and he has been unable to obtain further employment. 1. The plaintiff and defendant are not far apart in their estimates (namely 23% and 30% respectively). I consider the plaintiff would be entitled to claim 25% whole person impairment. Past and future domestic care and assistance 1. Mr Campbell concedes that the evidence does not make out any entitlement. Past out-of-pocket expenses 1. This was the subject of controversy in the form of a novel argument by Mr Campbell as to past out-of-pocket expenses, namely a dispute about whether the employer incentive of $27,400 was payable. It was unclear whether this is a past out-of-pocket expense or a past economic loss claim; I have treated it as a past economic loss claim. However, all other past out of pocket expenses were the subject of agreement. 2. Future out-of-pocket expenses of $20,000 is claimed by the plaintiff but I have very little evidence as to what those future out-of-pocket expenses would be. The plaintiff is not currently having any medical treatment or prescribed medication. I would only award a token figure of $5,000 for future medical expenses. Past and future economic loss 1. One aspect of the plaintiff's past economic loss is the claim for s 153 retraining being for an employer incentive of $27,400. This is listed as a separate disbursement on the plaintiff's schedule of damages, although technically it is a form of past economic loss. 2. This compensation is argued to be recoverable in that the plaintiff was acting reasonably in incurring the cost in question (Fox v Wood (1981) 148 CLR 438 at [7]). The plaintiff's company went into liquidation and the plaintiff had to find new employment. His employer was paid an incentive to hire him and this enabled the plaintiff to return to work. I consider this to be a reasonably incurred expense. 3. The plaintiff said he was unable to perform certain of the tasks given to him by his current employer and that he still works within his physical limitations. I am asked to infer that he was taken on because of the significant incentive provided by the Worker's Compensation Insurer which would not be available to any future employer. It is also submitted to me that the plaintiff has ongoing physical restrictions and, as a result of foreshortening of his working life, a cushion of $100,000 would be reasonable. 4. The plaintiff is able to perform a wide range of duties as the rehabilitation reports prepared on behalf of his employer demonstrate. I am satisfied that a small cushion only should be awarded and I would award the sum of $30,000. Orders 1. Judgment for the defendant against the plaintiff. 2. Plaintiff pay defendant's costs. 3. Liberty to apply in relation to costs. 4. Exhibits retained for 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2017