Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Williams v Metcash Trading Ltd [2019] NSWCA 94 Hearing dates: 21 June 2018 Decision date: 03 May 2019 Before: Meagher JA at [1]; White JA at [2]; Simpson AJA at [149] Decision: (1) Appeal allowed. (2) Cross-appeal dismissed. (3) Set aside orders 1 and 2 made in the District Court on 23 June 2017. (4) In lieu thereof direct entry of judgment for the plaintiff in an amount to be calculated in accordance with the reasons of the primary judge and with these reasons, such judgment to take effect from 23 June 2017. (5) Direct that within 21 days the parties provide to White JA's Associate either an agreed calculation of the amount for which judgment should be entered, or, in the absence of agreement, each party's calculation of the amount for which judgment should be entered and a short submission of no more than five pages identifying areas of disagreement and setting out each party's contentions in relation to matters on which agreement has not been reached. (6) Order that the respondent pay the appellant's costs of the proceedings below and of the appeal and cross-appeal. Catchwords: TORTS – Negligence – Appellant employed as picker packer at product distribution centre – Whether primary judge erred in finding that host employer breached duty of care to appellant by requiring him to pick heavy cartons stored at low height – Whether breach of duty causative of appellant's harm – Whether error in finding of contributory negligence in circumstances where worker required to adopt system of work – Whether primary judge erred in accepting evidence that appellant's pain syndrome was caused by physical injury – Appeal allowed Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5R, 31, 32, 33 Workers Compensation Act 1987 (NSW), ss 151G, 151Z Uniform Civil Procedure Rules 2005 (NSW), r 51.17 Cases Cited: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191 Brown v Hewson [2015] NSWCA 393 Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Ghunaim v Bart [2004] NSWCA 28 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Hollier v Sutcliffe [2010] NSWSC 279 J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 Jurox Pty Ltd v Fullick [2016] NSWCA 180 McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 Mousa v Marsh [2001] NSWCA 317 Optus Administration Pty Limited v Wright [2017] NSWCA 21 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31 Williams v Metcash Trading Ltd [2017] NSWDC 154 Texts Cited: Commonwealth of Australia, Review of the Law of Negligence: Final Report, (August 2002) Category: Principal judgment Parties: Matthew Williams (Appellant) Metcash Trading Ltd (Respondent) Representation: Counsel: B Gross QC with B McManamey (Appellant) DD Feller SC with R O'Keefe (Respondent) Solicitors: Law Partners Personal Injury Lawyers (Appellant) Vardanega Roberts Solicitors (Respondent) File Number(s): 2017/203820 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWDC 154 Date of Decision: 23 June 2017 Before: Dicker SC DCJ File Number(s): 2013/331913 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the decision] The appellant, Mr Williams, worked as a picker-packer in a product distribution centre operated by the respondent, Metcash Trading. The appellant brought proceedings in the District Court against the respondent seeking damages in respect of a personal injury said to have been sustained while working at the centre. The primary judge found that the appellant suffered an injury on 1 June 2012 when lifting two boxes of "Chum" dog food from under a rack (or "pick slot") that was 1.4 metres in height. The respondent, according to the primary judge, breached the duty of care it owed the appellant by requiring that cartons of Chum be picked from a rack measuring only 1.4m in height. However, the breach did not sound in damages because the primary judge found that it was not causative of the injury suffered by Mr Williams. The primary judge found that Mr Williams' injury was caused solely by his own conduct in lifting two boxes of Chum at a time. The primary judge went on to complete the analysis as to quantification of damages and contributory negligence in case his finding on causation were held to be erroneous. On the latter subject the primary judge held that any award of damages would be reduced by 20 per cent by reason of Mr Williams' contributory negligence. On appeal, Mr Williams challenged the primary judge's finding: (i) that the negligence as found was not causative of his harm; and (ii) that in any event Mr Williams' award of damages would have been reduced by 20 per cent on account of his contributory negligence; while Metcash Trading, by way of cross-appeal, challenged the primary judge's: (iii) finding that requiring boxes of Chum to be lifted from a pick slot 1.4m in height was a breach of its duty of care; and (iv) findings as to damages. The Court of Appeal, allowing the appeal, held (per White JA, Meagher JA (at [1]) and Simpson AJA (at [149]) agreeing: As to issue (i), the finding of a lack of causation – That the primary judge's finding that the negligence was not causative of the appellant's injury should be set aside (at [11(b)]). The appellant had to demonstrate on the balance of probabilities that had the height of the pick slot been raised to 1.8 metres, the particular injury would not have occurred (at [47], [64]). The primary judge's finding as to lack of causation was vitiated by the failure to consider whether the injury would not have occurred because a higher pick slot afforded the appellant an opportunity to employ a safer method of lifting that was impossible to use if the pick slot were only 1.4 meters (at [66]). Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153; Brown v Hewson [2015] NSWCA 393, applied. As to issue (ii), the finding of contributory negligence – That the primary judge's finding of contributory negligence should be upheld (at [11(c)]). Although findings were made that the appellant undertook his duties within the system presented to him (at [68]), this being a system which he had no choice to adopt, this was but one of the circumstances to be taken into account in a finding of contributory negligence (at [77]). The system did not require him to lift two heavy boxes at a time. The finding of contributory negligence was open to the primary judge (at [78]-[79]) and there was no basis to interfere with that finding on appeal (at [80]). Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; Ghunaim v Bart [2004] NSWCA 28; Mousa v Marsh [2001] NSWCA 317, applied. Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; J Blackwood & Son v Skilled Engineering [2008] NSWCA 142; Jurox Pty Ltd v Fullick [2016] NSWCA 180, referred to. Council of the City of Greater Taree v Wells [2010] NSWCA 147, cited. Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37, distinguished. As to issue (iii), the finding of negligence – That the primary judge's finding of negligence should be upheld (at [11(a)]. The risk of harm was formulated without challenge on appeal as being the risk of the worker's suffering a back injury whilst lifting heavy boxes from under 1.4 metre high shelving with related psychiatric complications (at [28]). The primary judge found that it was virtually impossible to pick the product using safe lifting and handling techniques. Had the pick slot been 1.8 metres rather than 1.4 metres in height, the risk of injury would have been reduced (at [33]-[43]). Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, referred to. TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31; South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, cited. As to issue (iv), the appeal as to the primary judge's assessment of damages – That, contrary to Metcash's submissions, the primary judge reached his findings as to injury by reference to radiological reports, not by the unassisted comparison of pre and post event x-rays (at [117]). In any event, the primary judge concluded that the appellant's pain was not caused by the bulging of the disc or ongoing physical injury to his back (at [119]). The primary judge found that the appellant suffered a psychiatric injury identified as pain syndrome and that this condition was caused by the physical injury suffered by the appellant. The primary judge did not err in accepting the medical evidence supporting this finding (at [143]). Metcash's challenge as to damages was predicated on successfully challenging the finding as to psychiatric injury. The challenge having failed, it was unnecessary to address the question of damages further (at [144]). Judgment 1. MEAGHER JA: I agree with White JA. 2. WHITE JA: This is an appeal and cross-appeal from a judgment and orders of the District Court (Dicker SC DCJ) of 23 June 2017 (Williams v Metcash Trading Ltd [2017] NSWDC 154). The appellant, Mr Matthew Williams, brought proceedings for damages for personal injury alleged to have been sustained when working as a picker/packer at the respondent's product distribution centre in Eastern Creek, Sydney. The respondent, Metcash Trading ("Metcash") occupied the site and supplied retail outlets which included IGA grocery stores (Judgment [2]). Mr Williams was employed by a labour-hire company called JW Workforce Solutions Pty Ltd which traded as Tru Blue Recruitment Australia. Mr Williams alleged that he suffered injury on 30 May 2012 and again on 1 June 2012. The primary judge found that he suffered injury on 1 June 2012. Mr Williams alleged that he suffered injury on that day when lifting two boxes of Chum dog food from under a rack that was 1.4 metres high when he was bending and then turning to stand. 3. The primary judge found that Metcash breached its duty of care to Mr Williams in one respect, and in one respect only, namely, by placing the cartons of dog food that had to be picked in pick slots with a height of 1.4 metres (Judgment [321(e)], [323]-[324]). The primary judge also found that that breach was not causative, in the relative sense required by s 5D of the Civil Liability Act 2002 (NSW), of Mr Williams' injury. Rather, the primary judge found that the single cause of the injury was Mr Williams' lifting two boxes of dog food at once (Judgment [346], [349]). 4. Consequently, the primary judge entered judgment for the defendant. His Honour properly went on to consider other issues that would arise if his Honour's conclusion as to causation were found to be erroneous. His Honour found that any damages to which Mr Williams would have been entitled should be reduced by 20 per cent by reason of his contributory negligence (Judgment [361]). By his amended notice of appeal, Mr Williams challenged the primary judge's finding of 20 per cent contributory negligence. 5. The primary judge also concluded that damages to which the plaintiff would otherwise be entitled should be reduced by a further 20 per cent pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) on the basis that Mr Williams' employer, if sued, would have been liable for damages for failing to take reasonable care to avoid exposing him to unnecessary risks of injury and as between Metcash and Mr Williams' employer, there should be an apportionment of liability as to 80 per cent for Metcash and 20 per cent for the employer. Although that finding was challenged in Mr Williams' notice of appeal, neither Mr Williams nor Metcash made any submissions contesting that finding. 6. The primary judge made findings to permit the assessment of damages. His Honour found that Mr Williams suffered a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue type injury and ongoing intermittent pain which stopped his working. His Honour found that the 1 June 2012 injury also caused modest disc bulging. He found that Mr Williams has some continuing back problems of a reasonably mild nature (Judgment [378(a)]). If this were the extent of Mr Williams' injuries, a finding of negligence causing injury would result in an award of only modest damages. But the primary judge also found that Mr Williams has a psychiatric condition of mild to moderate severity arising from the accident, being a persistent depressive disorder with a differential diagnosis of an adjustment disorder. His Honour found that Mr Williams requires continued pain management and ongoing treatment for depression for a period of six to 12 months (Judgment [378(c)]). His Honour found that Mr Williams had a history of, and was prone to, depression (Judgment [378(d)]), but found that his current psychiatric condition arose from his back injury and that that psychiatric condition prevented his return to work to any suitable occupation until it could be appropriately managed (Judgment [380]-[381]). 7. The primary judge found that for the purposes of assessing non-economic loss Mr Williams suffered an injury of 28 per cent severity as a proportion of a most extreme case. Under s 16(3) of the Civil Liability Act, this would result in an award of damages for non-economic loss of 14 per cent of the maximum damages allowable, being $84,500 (Judgment [386]). His Honour made findings of fact as to Mr Williams' likely earnings up to the date of the hearing had he not been injured and left it to the parties to calculate damages and past loss of superannuation under that head. The primary judge assessed Mr Williams' future economic loss for loss of earning capacity at $300 per week to be allowed for 33.5 years to which the 15 per cent deduction for vicissitudes would be applied. His Honour noted that the parties were agreed on the Fox v Wood component of damages (Fox v Wood (1981) 148 CLR 438; [1981] HCA 41) and past out of pocket expenses. The primary judge said he would allow a buffer for future out of pocket expenses of $20,000. The primary judge assessed damages for future domestic and commercial assistance in the sum of $65,002.60. Damages assessed in accordance with his Honour's findings would be reduced by 40 per cent to take account of his findings of contributory negligence and reduction on account of s 151Z of the Workers Compensation Act. 8. Metcash filed a cross-appeal in relation to the primary judge's findings of a breach of duty of care and in relation to the assessment of damages. (Under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.17 a respondent who wishes to seek the discharge or variation of the "decision" below may file a notice of cross-appeal. A "decision" for the purposes of the rule includes an opinion or determination (UCPR r 51.2)). 9. In relation to the assessment of damages Metcash contended in its grounds of cross-appeal that the primary judge erred in failing to find that Mr Williams had experienced symptoms caused by soft tissue low back injury from 2009-2012, erred in failing to find that Mr Williams did not have any persisting physical injury that could cause symptoms which in turn could cause a psychiatric condition, erred in his assessment of medical evidence, erred in finding that Mr Williams suffered a back injury on 1 June 2012 which caused ongoing pain for which medical treatment was required, erred in accepting the opinion of a psychiatrist, Dr Allnut, erred in finding that Mr Williams had a persistent depressive disorder or adjustment disorder referable to the "accident" that occurred on 1 June 2012 and was referable to a low back injury, erred in finding that Mr Williams' injuries qualified as 28 per cent of a most extreme case of injury, erred in his assessment as to Mr Williams' fitness for employment and his calculation of future economic loss, erred in allowing damages for future out of pocket expenses, and erred in finding that Mr Williams would require future domestic assistance. 10. It is appropriate to consider the issues in the following order. (a) first, Metcash's challenge to the primary judge's finding of negligence based upon Metcash's requiring Mr Williams to pick boxes of Chum dog food from the bottom layer of the bay (otherwise referred to as a pick slot) with a height of 1.4 metres; (b) secondly, Mr Williams' challenge to the primary judge's finding that the negligence as found was not causative of Mr Williams' damage; (c) thirdly, Mr Williams' challenge to the primary judge's finding of contributory negligence; and (d) fourthly, Metcash's challenges to the primary judge's findings on damages. 1. For the reasons which follow I have concluded that: 1. the primary judge's finding of negligence should be upheld; 2. the primary judge's finding that the negligence found was not causative of the particular harm suffered by Mr Williams should be set aside; 3. the primary judge's finding of contributory negligence should be upheld; and 4. the primary judge's assessment of damages should be upheld. Primary judge's uncontested findings 1. On 1 June 2012 Mr Williams was 26 years old. After finishing school at the end of year 10 he commenced various jobs, including as a picker/packer for grocery wholesalers. He had previously suffered pain in his lower back after a motor vehicle accident in December 2004. He injured his abdomen lifting boxes in December 2005 (Judgment [310](2), (3) and (4)). In May 2008, he accepted employment as a picker/packer with Ceva Logistics Pty Ltd ("Ceva"). The primary judge found that Mr Williams probably received training in safe manual lifting when working at Ceva. He was aware of the safe way to lift a box when he started working with Metcash in 2012 (Judgment [310](5)). In 2008 Mr Williams lost his driver's licence for three years. The primary judge found that he suffered depression from about 2008-2009 as a result of losing his licence and the pressures that this placed on him concerning his work and domestic circumstances. 2. Mr Williams injured his back on two occasions whilst working at Ceva. The primary judge found that Mr Williams' back condition had resolved by early 2010. The primary judge found that Mr Williams' depression and psychological problems continued probably until the beginning of 2012 (Judgment [310](6)), but they were not of such a serious level to prevent his working in 2010-2011 in picking at a cold goods factory for another company, nor from commencing work with Metcash in February 2012. The primary judge also found that Mr Williams was prone to depression (Judgment [310](8)). 3. Before securing work with Metcash, via the labour hire firm, Mr Williams had to complete an application form and undergo a medical assessment. In answering that form Mr Williams stated that he had not ever had an injury resulting from work or made a workers' compensation claim and that he did not then and never had suffered from back pain or back injury or depression. These statements were false. The primary judge found that Mr Williams lied in the application form in order to get work and earn money and not stay on Centrelink benefits (Judgment [310](10)). 4. Metcash pleaded that the content and scope of the duty of care it owed to Mr Williams was determined and circumscribed by its reliance upon representations made by him, his employer and an independent medical practitioner to the effect that he was a fit and healthy young male with no injuries or symptoms affecting his physical fitness at the time he intended to commence work for Metcash, and with no history of back injury and no history of workers' compensation claims for back or other injuries. It pleaded that the duty of care that it owed to persons performing picking and packing duties was a duty to exercise reasonable care in the allocation of picking and packing duties to fit and healthy persons who had been deemed fit for picking and packing duties by an independent medical practitioner and by the person's employer. It pleaded that it would not have permitted Mr Williams to perform the duties of a picker and packer if made aware of his true medical history. These contentions were not agitated on appeal. 5. Mr Williams was given instructions and information by his employer, Tru Blue, in relation to safe manual handling at his induction on 21 February 2012. He was also given training on safe manual handling by Metcash at about the same time. He was taken through safe manual handling techniques involving lifting only one box at a time. He was told by a Mr Steven Miller of Metcash only to lift one box of produce at a time (Judgment [310](12) and (13)). When Mr Williams started with Metcash he was told that there was a performance standard known as an "engineered standard" which the workers had to meet. The primary judge did not find that a worker faced the risk of dismissal if he or she did not meet those standards. But his Honour found that: "Some pressure was placed on employees and potential employees to meet the engineered standard for 100 per cent ... There was frequent communication between supervisors at Metcash ... and labour hire officials from Tru Blue to workers to reach the engineered standard. ... The performance of labour hire employees to the engineered standard of 100 per cent pick rate was taken into account in whether the labour hire employee was taken on as a full-time employee at Metcash or was given weekend work." (Judgment [310](14)). 1. The primary judge found that pick rates were important and that workers understood that the prospect of full-time employment depended upon the pick rate (Judgment [310](14)). The primary judge found that pressure was placed on employees and potential employees that resulted in some workers increasing the speed of their work and picking up multiple boxes of product in an attempt to reach Metcash's engineered standards of pick rate of 100 per cent (Judgment [310](14)). 2. A Mr Ernest Roberts performed the role of risk and compliance manager for Metcash (Judgment [92]). Mr Miller was a supervisor in the dry goods area of the distribution centre in 2012 (Judgment [133]). If Mr Roberts or Mr Miller or other supervisors saw workers lifting more than one box of heavier products they would stop them and tell them not to lift more than one box and instruct them in safe handling techniques (Judgment [310](13)). Nonetheless, it was common practice amongst some workers to lift more than one box of heavier items such as dog food or soft drink to keep up with or get close to the engineered standard time (Judgment [310](13)). However, the primary judge was not satisfied that supervisors were aware that this was a common practice and if they saw it they corrected it (Judgment [310](13)). The number of supervisors on duty was found by the primary judge to be reasonable (Judgment [310](13)). 3. The primary judge gave the following description of the procedure for picking goods: "A worker picked up the labels for an order and the picking procedure was then relayed to the worker by a computer generated voice through the worker's headset. The worker drove the electric pallet jack up and down the aisles at the defendant's premises picking and packing the goods as directed. When the order was completed the worker wrapped the order on the pallet and gave it to another section which arranged for the order to be trucked to the ordering retailer. A worker had one or two pallets on the back of the electric pallet jack as he or she drove up and down the aisles at the defendant's premises. When a pallet jack was stopped to pick a product it was parked about one metre away from the pick slot. This was in order to allow another worker with an electric pallet jack to pass the first pallet jack to pick other goods. Goods were stored on shelves in the large number of aisles in the defendant's distribution centre. The shelves were at the heights of 1.4 metres, 1.6 metres and 1.8 metres. Where goods were stored under a shelf of 1.4 metres in height, there were goods stored on a second shelf above the first goods. The goods on the second shelf were lighter goods. A metal case hook was supplied to workers for reaching goods at the back of a pallet. However, it was not frequently used and if it was used it was usually used on the second shelf to reach lighter goods at the back." (Judgment [310](16)) 1. The primary judge rejected Mr Williams' submission that Metcash's system of having an engineered standard with headphone instructions amounted to an unsafe system of work. His Honour found that there was no evidence that workers were directed to pick up more than one box or that they were punished or dismissed for not meeting the engineered standard. His Honour concluded: "Overall, the engineered standard seemed to provide in my view what it was alleged to provide, an efficient standard by which to judge the performance of employees. ... I do not find that lifting more than one box of produce was the result of the unreasonable concentration on pick rates by the defendant. ... I also do not find on all the evidence that by emphasising the pick rate, the defendant was encouraging workers to pick as fast as possible irrespective of safety issues including picking two boxes at a time." (Judgment [310](18)) 1. These findings were not challenged. Mr Williams' injury 1. Mr Williams' injury as found by the primary judge was a musculo-ligamentous strain and soft tissue injury with ongoing intermittent pain that stopped him working (Judgment [378](a)). This gave rise to an ongoing psychiatric disorder (Judgment [378](c)). 2. The primary judge accepted "in general terms" Mr Williams' evidence in relation to how the injury to him occurred (Judgment [310](21)). In particular, his Honour accepted evidence given by the plaintiff at the following parts of the transcript: "Q. Was there a specific incident when that happened? A. Yes, I was bending under the rack to pick Chum dog food. It was 14 cases. The first pick was four and the next was ten. When I was picking the ten I got halfway through. I was bending out from under the shelving with two boxes of Chum dog food, and, yeah, when I was bending out - because you had to wriggle your way back, and then when I was turning to stand up that's when I felt a sharp pain. Then after that I sat down on the pallet because, yeah, I just couldn't do anymore - the pain was that intense I couldn't really move much. ... A. I picked that, felt a sharp pain in my back, I finished the rest of that order. Q. Was that a pick from the ground or from the second shelf? A. I can't remember. Q. Can you remember what you were actually doing to perform that pick? A. Yeah, just bending and twisting to the right to put it on my pallet when I initially felt the sharp pain. Q. Can you recall at what height bar it was? A. No. I think it might have been around chest height. Q. That would be at 1.4? A. Yes. ... Q. Question, 'Was that a pick from the ground or from the second shelf?' answer, 'I can't remember', 'Can you remember what you were actually doing to perform that pick? Yeah, just bending and twisting to the right to pull it on my pallet when I initially felt the sharp pain'. You have just told us this afternoon you remember picking the box up from the ground, haven't you? A. Yeah. Q. At the time you say you felt this first sharp pain you said you were bending and twisting to the right? A. Yep. Q. To put the box on your pallet? How many boxes were already on your pallet? A. I've got no idea. ... Q. You don't know whether when you were twisting you could just put the box at waist height or at knee height or at chest height, do you? A. No. Q. The fact is that you felt this sharp pain when you manoeuvred in a way that you knew was unsafe, isn't that right? A. You had no other way to do it. Q. You twisted and bent while carrying 13 kilograms, didn't you? A. Yep. Q. You knew when you did that that if you were going to lift an item weighing 13 kilograms you should keep your back straight, you should tense your abdomen and you should bend with your knees and ankles, didn't you? A. That's right. Q. That's precisely what you could have done to avoid the onset of sharp pain on that occasion, couldn't you? A. No.. ... Q. Yet here we are on 1 June 2012, you've been working the day before in pain, is that right? A. That's right. Q. And you continued working? A. Yep. ... Q. You knew when you were working on 1 June 2012 that you were working with unsafe work practices that could cause you a back injury whilst you had pain in your back, is that right? A. I was picking. Q. According to your evidence, if you are to be accepted, you were prepared to continue working in a dangerous job while you had pain in your back, is that right? A. Yes. ... Q. Isn't it your evidence that you injured yourself again on 1 June because you were lifting in an unsafe way? A. Yeah. I didn't say I was lifting unsafe. Q. You weren't lifting in an unsafe way on 1 June? A. No. Q. You were lifting in a safe way, were you? A. I was lifting the only way I could. ... Q. What was the only way you could lift, you say, when you injured yourself on 1 June? A. With the space that I had. Q. How did you lift? A. There's only one way to do it when you've only, you're working in a confined space bending under shelving. Q. Can you just tell us again what it was that you were doing on 1 June when you say you injured your back? A. Picking dog food from under racking. Q. Can you tell us exactly what it was that you had to pick? A. Chum dog food. Q. How much did the cartons weigh? A. 16 point something kilo. Q. And how many Chum dog food boxes did you have to pick before you had your injury? A. There was a lot of four and then there was a lot of ten." 1. Although the primary judge made no specific finding as to twisting, he accepted the plaintiff's evidence that he suffered his injury when he was bending and twisting to the right to put two boxes of Chum dog food onto the pallet. 2. The primary judge found (Judgment [310](21)): "I accept in general terms the plaintiff's evidence in relation to how the injury occurred to him on 1 June 2012: T102.40-103; T318.47-321.16; T323.28-324.38. The plaintiff's evidence was imprecise and inconsistent in relation to the detail of the events of the alleged 30 May 2012 injury: T103-4; T313-20. I believe that the plaintiff has, at the least, refreshed his memory of the two incidents from the daily print outs which are Exhibit 7. However, the account given by the plaintiff of the 1 June 2012 incident is, in my view, in general terms plausible and believable and appears to be consistent with Exhibit 7 and later medical reports. I accept the plaintiff's evidence in relation to the 1 June 2012 incident." Metcash's challenge to the finding of breach of duty of care 1. Although Metcash was not Mr Williams' employer, it was not disputed that as Mr Williams' "host employer" it owed Mr Williams a duty corresponding with or at least very similar to an employer's duty to take reasonable care to avoid exposing the worker to unnecessary risks of injury, and if there is a real risk of injury to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk or by the provision of adequate safeguards (TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31 at [40]; South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [116]). This is how the primary judge formulated Metcash's duty of care and there is no issue as to the correctness of his Honour's formulation. 2. The primary judge referred to the matters set out in s 5B of the Civil Liability Act and noted that the breach inquiry was to be determined prospectively by requiring an identification with some precision of what a reasonable person in the position of Metcash would do by way of response to a reasonably foreseeable risk (applying Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [192] per Gummow and Hayne JJ). Section 5B of the Civil Liability Act 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. The primary judge identified the relevant risk of harm as being the risk of the worker's suffering a back injury whilst lifting heavy boxes from under 1.4 metre high shelving with related psychiatric complications (Judgment [321](a)). No challenge was made in relation to this formulation of the risk of harm. 2. The primary judge found (at [321]): "321 I analyse the principles in Section 5B of the CLA as applicable to this case as follows: (a) The risk to the plaintiff was foreseeable by the defendant being a risk of which the defendant knew or ought to have known. The risk in the present case is a back injury to the plaintiff whilst lifting heavy boxes from under 1.4 metre high shelving with related psychiatric complications. The defendant had established a sophisticated system of work. That system recognised the possibility of back injuries by the adoption of safe handling procedures. It also involved the plaintiff being required to pack goods at what was perceived to be an efficient rate determined by the defendant and not him. The defendant was aware of the location in which the dog food boxes were stored being on the first level of shelving below 1.4 metres in fairly narrow aisles. It was also aware of the limited space between the pick shelf and the pallet jack due to the need for a pallet jack to be able to be overtaken by other pallet jacks. The provision of the case hook was an indication that the defendant was aware of the need to pull heavy product forward. In my view a back injury to the plaintiff was clearly foreseeable by the defendant having regard to the location of the dog food boxes and was a risk of which the defendant knew or ought to have known. The risk of psychiatric complications was also in my view a risk of which the defendant knew or ought to have known; (b) The risk to the plaintiff from a back injury in picking up heavy boxes of dog food in a confined space from a 1.4 metre high pick slot was not insignificant. The evidence establishes that the dog food varied in weight with a box of the Chum dog food weighing over 16kg. The plaintiff was required to extract cases of the dog food from the pick slot where his height well exceeded the 1.4m high shelving of the pick slot. The following matters were relevant: the goods were to be picked in a cramped location, the height of the pick slot, the fact that there were two pallets in the pick slot side by side, the plaintiff's height and the limited room near the electric pallet jack. The risk to a worker of a back injury and potential psychiatric complications as a result of the back injury was in my view clearly not insignificant in the circumstances; (c) The plaintiff has submitted that the defendant should have adopted an alternative system of work of making the pick slot a height (such as 1.8 metres or preferably 2 metres) which allows a worker to have ready access; (d) It was further submitted that the plaintiff's expert, Ms Aickin, should be accepted where she recommended having heavier items, such as Coke or dog food, on self-raising platforms, placing some pallets on a higher platform, installing turntables for certain foods and rotating pallets. (e) In relation to Ms Aickin's suggestions, I accept the evidence of Dr Fairfax and Mr Roberts of the defendant that the use of these recommended alternatives was not practical in the circumstances. I also accept that the cross-examination of Ms Aickin showed that these alternatives were uncosted and in the case of rotating pallets, had their own risks as a result of increased forklift activity. (f) There is also the evidence of the plaintiff and Mr Bannerman that multiple boxes of dog food and soft drink were lifted by workers and that both of them were never corrected by supervisors. This should be contrasted with the evidence of Mr De Leon, Mr Miller and Mr Roberts that either this did not occur or it was corrected by supervisors when they saw it and all workers were taught safe manual handling techniques. (g) On this point I accept the evidence of the plaintiff and Mr Bannerman that the lifting of multiple boxes of dog food and soft drink occurred by some workers as a matter of practice and that this was perceived by the plaintiff to be necessary to keep up with the engineered standard pick rate. Despite the plaintiff and Mr Bannerman's evidence, I am not satisfied that this was seen by supervisors on a regular basis and tolerated by them or should have been seen by them in their reviews. I prefer Mr Roberts' and Mr Miller's evidence on this issue as to their approach and regular supervision by supervisors. (h) In my view, taking into account all the evidence, a reasonable person in the position of the defendant would have taken the precautions which the plaintiff submits as to the location of the dog food in a pick slot of at least 1.8 metres in height in order to take reasonable steps to avoid the risk of back injury to a worker by bending his back under the shelf to reach and pull out the heavy dog food cartons. There is no suggestion that this would have made the pick rate inefficient or that it would have imposed unreasonable difficulties on the defendant. In my view the probability that harm would occur to the plaintiff if the precautions suggested were not taken was reasonably high. The likely seriousness of the harm to the plaintiff was also high and could have involved a serious injury to his back. The burden of making the changes to the system recommended does not appear to be overly significant. There is no particular social utility of keeping the system in the form adopted by the defendants. Whilst this may have slowed the process down slightly and accordingly may have led to additional costs, there is no evidence that this would have created an unreasonable burden on the defendant or that the social utility was so high as to negate the adoption of the alternatives." 1. Metcash's notice of cross-appeal included grounds that the primary judge erred in accepting the evidence of the appellant and Mr Bannerman in preference to the evidence of Mr Miller and Mr De Leon concerning the routine method taught to and adopted by workers to lift boxes of dog food, and that the primary judge erred in finding that it was impossible to lift a box of dog food using safe lifting and handling techniques whilst keeping the back straight. Those grounds were not pressed. Rather, Metcash relied upon the following grounds: "The primary judge ... ... (b) failed to consider the question of breach of duty with respect to the task of lifting dog food prospectively; (c) failed to consider expert evidence that raising the height of pick slots would not materially reduce any risk of back injury; (d) failed to consider the absence of evidence to establish that raising the height of pick slots was reasonably practicable; (e) failed to consider evidence that raising the height of pick slots was not reasonably practicable." 1. Although not a ground of cross-appeal Metcash also submitted that it was reasonable for it either not to have adjusted the height of the pick slot or not to have stored heavy items such as boxes of Chum dog food in the 1.4 metre high pick slot by reason of a report provided by WorkCover in response to a complaint received on 1 May 2012 from Mr Williams. He complained to WorkCover that: "1. Workers have to pick up 10kg to 20kg boxes that are under the racking causing them to bend their backs instead of bending their knees which means they are straining their backs. 6 workers are currently on workers comp due to back injury. 2. There is always detergent, oil, windex spillage on the floor without getting cleaning making the floor slippery 3. Workers have to climb the racking to pick the boxes so they can meet their pick rate." 1. A WorkCover inspector inspected the site on 16 May 2012. His report included the following: "I noted picking heights approximately 1400mm at storage racking and observed workers moving stock onto trolleys, ergonomics appeared to be appropriate. I was advised by Alan Gotts that the company were putting together a Manual Handling Training program which should be rolled out at the end of June." 1. Notwithstanding the view of the WorkCover inspector, the primary judge found that "[i]t was virtually impossible to pick the product using safe lifting and handling techniques whilst keeping the back straight." (Judgment [310](19) quoted above). Ground 2 of Metcash's notice of cross-appeal challenged the correctness of that finding, but that ground was not pressed. The fact that the WorkCover inspector apparently took a different view is not to the point. 2. The primary judge found (Judgment [301]) that a correct lifting procedure displayed in court by Dr Fairfax (using a straight back) did not appear to take into account the limited space Mr Williams had between the pick slot and the pallet jack and the need for him to remove products where lifting was required with bending and then exiting the pick slot backwards holding the box without hitting his head on the 1.4 metre ceiling. His Honour did not accept Dr Fairfax's opinion that although there was an increased risk where the shelf height was lower, this was not a significant risk (Judgment [302]). 3. Metcash submitted that the primary judge failed to consider expert evidence that it contended established that raising the height of pick slots would not materially reduce any risk of back injury. But the primary judge found that the height of the pick slot of 1.4 metres made it virtually impossible for the worker to pick the product using safe lifting and handling techniques whilst keeping the back straight and this was unsafe and created unreasonable risks of injury. His Honour referred to and rejected the contrary evidence of Dr Fairfax (Judgment [310](19)). His Honour did not fail to consider that evidence. 4. The ergonomist, Ms Aickin, whose evidence in this respect was preferred by the primary judge, acknowledged that raising the height of the pick slot would not eliminate the risk of injury. That risk arises from the need to bend and reach forward to pick up products stowed on and beyond the first row of products on the pallet. She gave the following evidence: "O'KEEFE: The issue with bending is not just bending is it, its bending and reaching that we've been talking about today haven't we? WITNESS AICKIN: That's what we've been talking about today. But also what we haven't discussed today is the walking backwards while carrying a load as well. O'KEEFE: The comment that you've made here in relation to reducing the height of the level of the bay is all about bending and reaching isn't it? WITNESS AICKIN: What point are you looking at? O'KEEFE: This is point 4. WITNESS AICKIN: Yes, it's around that. It's around hitting their head. They bend down so they won't hit their head both going in and going out and to do that you hold a bend position and that is what sustained means and what repetitive means is they may do it on a number of different pick slots. O'KEEFE: But even if you raise the height of the shelving you still have the risk, don't you, that is associated with bending or reaching forwards beyond the first row or products to pick the others up, don't you? WITNESS AICKIN: You do, but risk reduction is about reducing as many of the risk factors as you can. It's not - you often can't reduce all of them, but raising the height so that you don't have to stoop is a reduction of one of the risks. O'KEEFE: And that reduction is only going to apply - if we continue to use the dog food pallet context is only going to apply in as much as it prevents you from having to lean too far forward to pick up the second, third and fourth boxes on the pallet; is that right? WITNESS AICKIN: And I believe even the first box. What I said earlier I said the first box. It's about bending over and I believe there is some bending, whether it's the first, second or third box across. O'KEEFE: Well that would mean it wouldn't matter what the height was, there's always some risk of some bending occurring irrespective of the height of the shelf above the pallet, isn't there? WITNESS AICKIN: Yeah, the further down you bend the higher the risk so if I you can raise it it's much better than having to then go in at your chest height as opposed to going in at just under head height. It's really quite different, both from a fatigue and biomechanical perspective. O'KEEFE: But the fact is that that proposal does not eliminate the risk, does it, for somebody who has to unload-- WITNESS AICKIN: No, it doesn't. O'KEEFE: --the pallet. WITNESS AICKIN: No, it just reduces it." 1. Metcash submitted that it was relevant to the finding of breach that raising the height of the pick slot would only reduce, not eliminate, the risk of injury. It submitted that to conclude that the raising of the height of the pick slot would only reduce but not eliminate the risk was a factor that weighed upon an evaluation that a reasonable person would make as to whether work should be done on a cost benefit analysis, taking into account all relevant considerations, to raise the height of the pick slot. Metcash submitted that the primary judge did not consider whether it was reasonably practicable to raise the heights of the pick slots or what costs in Metcash's operations would be entailed by such a course. The primary judge said (Judgment [304]) that: "I accept as reasonable the recommendation raised by Ms Aickin in her first report of raising the shelf height to allow pickers and packers to walk into the bay without stooping as described in the plaintiff's evidence: Exhibit 3, pages 148 and 155. Whilst the costs of making this change were not identified the change appears to me to be highly desirable to reduce the risk of injury to workers lifting in a cramped space." 1. Metcash submitted that Mr Williams had not adduced evidence to establish that placing dog food in existing 1.8m high pick slots was feasible, nor whether 1.4m high pick slots could be modified. It submitted that there was no evidence of the cost, as the primary judge acknowledged, nor was there evidence as to the feasibility of that recommendation. 2. The distribution centre had 46 aisles that were four metres wide and shelving on each side of the aisles to a height of nine metres or 11 metres. As product for distribution was received into the distribution centre the product was stacked on pallets that were placed in the shelves. The shelves were double bays and two pallets would fit next to each other, but only in one depth. The pick slots were at the bottom of the shelves. Once a pick slot at the bottom of the shelf was emptied software would direct an operator to use a forklift to bring stock down from the storage area that was higher up on the shelf and place it in whichever slot it needed to go into. This system was described by Mr Roberts as follows: "Q. Can you just tell the Court in a bit more detail what a pick slot was? A. Okay, so the whole complex of the warehouse is set up so that the system 20 has 14,000 what we call SKUs, which are pallets - actually areas that they pick. Q. Is a skew an acronym SKU? A. Yeah, that's right. So that what happens is that if you have all the face picks, what they call the face picks which are the bottom layers, and the actual operator, the assembly operator would come along. He would actually call a check digit, the last check digit on the barcode and it would tell him to pick one or two, whatever the case may be. Q. Is the process that the pickers and packers engage in one where using the pallet mover that you've talked about, they move throughout the premises and according to an audible software system they pick various items? A. That's right. Q. Load them onto a pallet that they have been carrying around on their pallet mover until they have completed an order or a pallet and then they move on; is that-- A. Yes, that's right. Q. -how the system worked? A. Exactly." 1. The weight of the boxes of products that had to be moved by physical handling ranged from one kilogram to a maximum of 20 kilograms. It was mainly advertising material that was at the 20 kilogram end of the range. A box of Chum dog food of the type that Mr Williams was picking weighed 16 kilograms. The pick slots had different heights. In his evidence in chief Mr Roberts said that the heights were either 1.2 metres, 1.4 metres or 1.8 metres from the ground up to the first shelf level. The height of the pick slot depended upon whether there was a two-tier pick or a three-tier pick. This depended on the weights of the products. As put by Mr Roberts, "... You'll have a lighter product that's maybe put into a three-tier pick at the maximum height of 1400." 2. Metcash's own evidence established that the height of the pick slots was variable and that the practice was for lighter products to be stored in pick slots of a height less than 1.8 metres. If Metcash wished to contend that it was not reasonably practicable for heavier items such as the Chum dog food boxes that Mr Williams was required to pick to be stored in a pick slot with a height of at least 1.8 metres, Metcash had the evidentiary onus to establish that matter. 3. Mr Williams was described as being six feet tall and so could not have stood wholly upright even in a 1.8 metre slot. But the risk of injury would have been reduced had the height of the pick slot been 1.8 metres rather than 1.4 metres. 4. Metcash also submitted that the primary judge did not make a prospective assessment of the precautions that should be taken to avoid a risk of harm. It submitted that the primary judge did not consider the evidence of Mr Roberts and of Mr Miller (an employee of Metcash in the role of "logistics supervisor automation"), that they did not observe any systemic problem with workers lifting boxes of dog food in an unsafe manner that was stored in 1.4 metre pick slots. Metcash submitted that the primary judge failed to consider that there was no evidence that prior to June 2012 any other assembler had been injured in similar circumstances. Except for Mr Williams' report to WorkCover, there was no evidence one way or the other on that question. But the question for Metcash was whether there was a reasonably foreseeable risk of injury from the low height of the pick slot. The question was not whether Mr Miller and Mr Roberts foresaw such a risk but neglected it. The risk was plainly foreseeable and Mr Roberts' evidence that lighter goods were stored in the lower pick slots of 1.4 metres or 1.2 metres showed that Metcash was aware of the risk of injury if heavier goods were stored in those lower slots. 5. The primary judge's finding of breach of duty of care should be upheld. Causation 1. Section 5D(1) of the Civil Liability Act provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." 1. There is no inconsistency between the primary judge's finding that Metcash's breach of its duty of care by requiring workers to pick heavier boxes such as the Chum dog food of 16 kilograms from the pick slots of only 1.4 metres in height was negligent by failing to protect against an increased risk of injury, and his Honour's finding that the injury would still have occurred even if the pick slot had been at a higher height of at least 1.8 metres. 2. There was no dispute that it was not enough for Mr Williams to establish that had reasonable precautions been taken the risk of injury would have been reduced. What must be shown is that on the balance of probabilities had the height of the pick slot been raised to 1.8 metres (there being no evidence that it would have been reasonable to have raised the height of the pick slot more than 1.8 metres) the injury would not have occurred (Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 312-318; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [124]; Brown v Hewson [2015] NSWCA 393 at [3], [106]-[108], [146]-[154]). 3. This directs attention to the mechanism of the injury. 4. Mr Williams suffered injury when he lifted two boxes of Chum dog food weighing approximately 32 kilograms. The primary judge found that whatever the height of the pick slot, Mr Williams would have lifted two boxes of dog food because he felt under pressure to comply with the engineered standards of a pick rate. He found that he would have suffered the same injury that he did irrespective of the height of the pick slot (Judgment [346]-[348]). 5. In support of that conclusion, the primary judge relied upon the evidence given by two ergonomists, Dr Fairfax and Ms Aickin, that lifting two boxes of dog food presented a serious risk of injury. 6. Mr Williams challenged these findings. He submitted that both he and other workers from time to time lifted two packs of dog food without suffering injury. He submitted that if the space provided was sufficient not to require significant bending or twisting, it was probable that two packs of dog food could have been lifted without injury. In establishing that probability Mr Williams relied upon his evidence, accepted by the primary judge, that he frequently lifted two packs of dog food to endeavour to keep up with the pick rate. The primary judge recorded (Judgment [54](k)) that pickers were lifting up multiple boxes of dog food or soft drink (also a heavy item) routinely. Mr Williams gave evidence that on occasions he had to lift dog food or soft drink continuously for between one and up to two hours. The primary judge found (Judgment [310](13)) that based in part of the evidence of the plaintiff it was common practice amongst some workers to lift more than one box of heavier items such as dog food or soft drink to keep up with or get close to the engineered standard time (Judgment [310](13)). 7. Mr Williams claimed that he had first suffered a sore back on Wednesday, 30 May 2012 when he had been picking Chum dog food from under a 1.4 metre slot, that he struggled the next day because "most of the stuff on the Thursday was bending under the racking once again to pick the stock", and that on Friday, 1 June 2012 the same thing happened, but it was a lot more intense. The primary judge found that Mr Williams was injured when he lifted two boxes of Chum dog food on 1 June 2012. His Honour did not accept Mr Williams' account of an injury said to have been sustained on 30 May 2012 (Judgment [310](22)). His Honour accepted that Mr Williams suffered the onset of an aching back in May 2012, but found that the injury which caused him real difficulties and caused him to cease work occurred on 1 June 2012 (Judgment [310](25)). 8. The primary judge found that Mr Williams was injured on 1 June 2012 when he lifted two boxes of Chum dog food (Judgment [310](22)). 9. As noted above (at [23]) Mr Williams' evidence in relation to how the injury to him on 1 June 2012 occurred was that: "I was bending under the rack to pick Chum dog food. It was 14 cases. The first pick was four and the next was 10. When I was picking the 10 I got halfway through. I was bending out from under the shelving with two boxes of Chum dog food, and, yeah, when I was bending out – because you had to wriggle your way back, and then when I was turning to stand up that's when I felt a sharp pain. Then after that I sat down on the pallet because, yeah, I just couldn't do anymore – the pain was that intense I couldn't really move much." and "Q. Can you remember what you were actually doing to perform that pick? A. Yeah, just bending and twisting to the right to put it on my pallet when I initially felt the sharp pain." 1. In light of the primary judge's finding that the only breach of Metcash's duty of care was requiring the worker to pick boxes of dog food from pick slots with a height of 1.4 metres rather than 1.8 metres, the question under s 5D is whether Mr Williams established on the balance of probabilities that he would not have suffered the injury he did on that day had the height of the pick slot been 1.8 metres. In relation to that question the primary judge found: "346 Taking all the evidence into account, I do not believe that the plaintiff has established on the balance of probabilities that but for the breach of duty of care found of having the racking at 1.4 metres as opposed to 1.8 metres, the 1 June 2012 injury would not have occurred. I find that the cause of the 1 June 2012 injury on the evidence was the plaintiff lifting two boxes of dog food which the experts both regarded as presenting a serious risk of injury. I accept the defendant's submissions in this regard. 347 There is no evidence, nor in my view can I properly infer, that the breach I have found, being the placement of the dog food cartons in the 1.4m high pick slots, in any way was causative in the relevant sense under Section 5D of the plaintiff's injury on 1 June 2012. It should be noted that the plaintiff picked up two boxes of dog food on 1 June 2012 even though he realised this could hurt his back, in order allegedly to keep up with the time allowed in the engineered standard: T494.22. 348 I have found that the defendant's supervisors did not condone the workers lifting two boxes of dog food at a time. Having regard to the plaintiff's evidence that picking multiple boxes 'was the only way you could stay within the pick rate' (T 97.36; T 491.25), I consider it likely that the plaintiff would have continued to pick up two boxes of dog food at a time even if he had been corrected by supervisors. 349 In the end, I am not satisfied that the plaintiff has established causation to the requisite standard." 1. It is apparent from the above reasoning that the primary judge considered that whatever the height of the pick slot, Mr Williams would have lifted two boxes of dog food and would have suffered the same injury that he did suffer. In support of that conclusion, the primary judge referred to the evidence of Dr Fairfax and Ms Aickin that lifting two boxes of dog food presented a serious risk of injury. His Honour said that he accepted the defendant's submissions in this regard. The defendant's submission was that in their joint report the experts agreed that: "(a) Lifting 2 or 3 cartons of Chum dog food involved extreme risk of injury. (b) Lifting boxes from the level of a pallet involves some risk of injury; (c) Lifting from a position a distance from the torso by more than 30cm involves a risk of injury; (d) Repetitive lifting of heavy objects involves a risk of injury." 1. The joint report of Ms Aickin and Dr Fairfax included the following: "15. In your opinion, what caused the Plaintiff to sustain injury? Ann Fairfax: The obvious major risk described by the Plaintiff was the fact that he lifted two and three cartons at a time. Two cartons would weigh 28.8kg and three cartons would weigh 43.2kg. This clearly exposed the Plaintiff to a very significant risk of injury. This was identified in my Risk Assessment as being EXTREME. Christine Aickin I have identified the many risk factors for this injury in the risk assessment/s that I have included in my report in section 12.0 on pages 18.-19. I also agree with Dr Fairfax's comments above. Since writing the first report I have also been given information which indicates that the picking and packing task involves injury risk due to its repetitive nature." 1. The "Risk Assessment" to which Dr Fairfax was referring was her report of 24 September 2015. In section 3.2 of that report, she expressed the opinion that repetitive lifting of two or three cartons of dog food at a time was an "extreme" risk of injury. This is far from saying that if Mr Williams had picked up two boxes of Chum dog food when he did, but the pick height had been higher so that he did not have the same degree of bending and twisting, that the same injury would have occurred. 2. Ms Aickin's evidence was that the risk of injury was accentuated if Mr Williams had to maintain a stooping position to get under the shelving, particularly if he were lifting a carton from the second and third row across the pallet. Mr Williams' evidence was that he was wriggling his way back, apparently indicating that he was taking a carton from the second or third row across the pallet. 3. Dr Fairfax was asked whether there was a risk of injury if Mr Williams had to lift weights of 14.4 kilograms from floor height whilst bending to get below a height of 1.5 metres. She did not answer the question. She said that the racking shelf was 1.8 metres high so there should not have been any need to bend to get below a height of 1.5 metres. The primary judge found that the racking shelf was 1.4 metres high and that is not disputed. Dr Fairfax agreed with Ms Aicken's opinion that if the worker were required to bend forward to extract cartons from the second or third row across the pallet where the pick slot height was 1.4 metres, there was an accentuated risk of injury. 4. If Mr Williams were performing the same manoeuvre as he would have performed if the pick slot was not 1.4 metres but 1.8 metres, then the negligence as found would not have been causative of the injury. But because of the lower height of the pick slot, Mr Williams was bent over at a greater angle than he would have been had the pick slot been 1.8 metres high. 5. The primary judge noted the view of both Ms Aickin and Dr Fairfax that lifting two to three cartons of dog food at a time in the one lift created a high risk of injury or an extreme risk of injury regardless of whether two boxes were lifted at waist height, chest height or a lower height (Judgment [298(b) and (d)]). But as Mr Gross QC submitted, it does not follow from the fact that over time there is a high or extreme risk of injury from lifting two boxes at once, that Mr Williams would have injured himself when he did if the pick slot had been at a height of at least 1.8 metres. 6. I do not accept the basis upon which the primary judge found that Mr Williams had not established on the balance of probabilities that the same injury would not have occurred had the height of the pick slot been 1.8 metres rather than 1.4 metres. His evidence, which the primary judge accepted, was that he frequently lifted two boxes of Chum dog food or of products of approximately equivalent weight in order to maintain his pick rate. 7. The question under s 5D(1)(a) is whether Mr Williams would have suffered the particular injury he did suffer if the height of the pick slot was 1.8 metres and not 1.4 metres. It is not to the point that he might have suffered a similar injury on another occasion if he continued to lift two boxes of heavier items at the same time. 8. I take into account the fact that on his own testimony Mr Williams had experienced some back pain as a result of his lifting goods two days earlier. Nonetheless, on the balance of probabilities I would conclude that Mr Williams would not have suffered the injury which he did on 1 June 2012 if he had not been required to undertake the low bending and twisting to retrieve the two boxes of dog food as he had to do when retrieving those boxes from the 1.4 metre pick slot. Indeed, it is a reasonable inference that he would not have suffered the back pain he did suffer on the two days preceding the injury if the heavy boxes had been stored in a pick slot of at least 1.8 metres rather than the pick slot of a height of 1.4 metres where the primary judge found that it was virtually impossible to pick the product using safe lifting and handling techniques whilst keeping the back straight. Mr Williams had frequently picked two boxes of dog food or boxes of a similar weight without suffering injury. I would conclude that on the balance of probabilities, the particular injury would not have occurred had the pick slot been at a height of at least 1.8 metres. 9. The primary judge's contrary conclusion is vitiated by his failing to consider whether the injury would not have occurred because with a higher pick slot Mr Williams could have used a safer method of lifting that was virtually impossible with a 1.4 metre pick slot, and thus avoided the injury. His Honour's assumption seems to have been that the picking up of two boxes of dog food at a time by itself would have resulted in the same injury having been suffered, irrespective of the height of the pick slot. But his Honour did not explain why that would be so beyond referring to the view of the experts (Dr Fairfax and Ms Aickin) that lifting two boxes of dog food presented a serious risk of injury. 10. The finding that the negligence as found did not cause Mr Williams' injury cannot be sustained. Contributory negligence 1. Mr Williams relied on findings made by the primary judge that: 1. "The plaintiff undertook his duties with the system that was presented to him. He complained about that system, and no changes were made. He either chose to work with the system presented to him or he ceased working." (Judgment [358]) and 2. "Although Mr Williams felt pain and discomfort on 30 and 31 May 2012, he believed that he was able to continue his duties at the time. He was an experienced picker-packer." (Judgment [359]). 1. The primary judge found: "360 ... the plaintiff picked up two boxes of dog food at a time on 1 June 2012 even though he realised this could hurt his back, in order to keep up with the time allowed in the engineered standard: T494.22. In my view, this did involve a failure by the plaintiff to take reasonable precautions to avoid the risk of injury to himself. He should only have picked up one box of dog food at a time. This is even though others workers may have been seen adopting the same practice and the plaintiff had the engineered standards to consider. 361 Taking into account the submissions made and all the evidence, in my view, there should be a reduction of 20% on account of this contributory negligence in the present case. Picking up two boxes of dog food on 1 June 2012 was unreasonable in the circumstances and posed an obvious real risk of injury. A reduction is in my view warranted." 1. Mr Williams submitted that this finding was erroneous because, so it was submitted, the earlier facts found (as set out at paras [16]-[17] above) ought to have led to the conclusion that no reduction should be made for any alleged contributory negligence. Mr Williams submitted that the primary judge's conclusion was inconsistent with a long line of established authority: Ghunaim v Bart [2004] NSWCA 28 ("Ghunaim v Bart"); Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191 ("Boral Resources"); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 ("Pollard"); J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 ("J Blackwood & Son"); and Jurox Pty Ltd v Fullick [2016] NSWCA 180 ("Jurox"). 2. Mr Williams also submitted that the primary judge erred by not considering and giving effect to the provisions of ss 5B, 5C, 5D and 5E of the Civil Liability Act as required by s 5R. He submitted that the proper application of those provisions ought to have yielded the result that there was no contributory negligence by him, although he did not say why. 3. Section 5R provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 1. As Basten JA explained in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [105]-[111], s 5R requires that for the purposes of considering contributory negligence, in determining the standard of care required, a plaintiff should not be treated differently from a defendant merely because the plaintiff is the person who suffered harm (Ipp Committee Report at [8.12]). As Basten JA observed at [111]: "111 The Ipp Report was concerned to reject the suggestion that some lesser standard was to be applied, such as that identified by Murphy J in Ruprecht [Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37] (at 578–579) namely that, in the case of an employee, where there was 'no conscious deliberate disregard of safety', there was no contributory negligence." 1. The primary judge referred to s 5R. His Honour said: "352 ... The question raised by Section 5R is whether a reasonable person in the position of the plaintiff, that is having the knowledge which the plaintiff had or ought to have had at the relevant time, was negligent: Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 at [217] per Hoeben JA (with whom Macfarlan and Ward JJA agreed)." 1. There is no dispute that this is a correct statement. 2. The primary judge did not, in the context of his dealing with the contributory negligence issue, make specific reference to ss 5B-5E of the Civil Liability Act. This did not bespeak error. The primary judge was not required to identify which parts of s 5B could be relevant to the determination of the issue of contributory negligence, nor how ss 5C-5E could be relevant. Mr Williams' submissions did not attempt such an analysis. 3. Contrary to Mr Williams' submissions, the authorities he cited do not establish that the primary judge was in error in making a finding of contributory negligence. First, a finding that a plaintiff was or was not contributorily negligent is a finding of fact. Insofar as the cases cited establish a principle, it is that a plaintiff is not guilty of contributory negligence if his or her conduct amounts to mere inadvertence, thoughtlessness, inattention or misjudgment having regard to all the circumstances, including whether the employee had no real choice but to adopt an unsafe system of work (Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493-4; Ghunaim v Bart at [82]-[83]; Boral Resources at [59]-[60]; McLean v Tedman (1984) 155 CLR 306 at 315; Pollard at [15]-[16]; J Blackwood & Son at [116]; Jurox at [86]). 4. It was well open to the primary judge to conclude that Mr Williams' conduct went well beyond mere inadvertence, inattention, thoughtlessness or misjudgment, but amounted to a failure to take reasonable care for his own safety. It is true that Mr Williams had complained about the system of work that required the lifting of heavy boxes from low pick heights and that system of work had not been changed. He had no choice but to pick the heavy boxes from the pick slots in which they were placed. But he did have a choice to pick only one box at a time as he had been instructed to do. He felt under pressure to maintain his pick rate, but that did not justify picking two boxes at a time from the 1.4 metre high pick slot when he was already experiencing pain or discomfort. The primary judge's finding that Mr Williams believed he was able to continue his duties at the time does not exclude a finding of contributory negligence. It might be otherwise if a finding of contributory negligence could only be made if the employee acted with conscious or deliberate disregard of his or her safety as Murphy J had proposed in Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37. But that is not the standard under s 5R. 5. If the finding of contributory negligence was open to the primary judge, as in my view it was, the apportionment between Metcash and Mr Williams of their respective shares in the responsibility for the injury involves a: "question not of principle or of positive findings of fact, or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds ... such a finding if made by a judge is not lightly reviewed." (Podrebersek v Australian Iron & Steel Pty Ltd at 493-494; Mousa v Marsh [2001] NSWCA 317 at [12]; Ghunaim v Bart at [47]-[48]). 1. There is no basis to interfere with the primary judge's assessment that Mr Williams should bear 20 per cent responsibility for the injury. Assessment of damages 1. The primary judge's finding of physical and psychiatric injury arising from the workplace accident on 1 June 2012 and his Honour's findings as to the measure of damages arising from those injuries is summarised at [6]-[7] above. As can be seen from the summary of Metcash's grounds of cross-appeal in relation to those findings (at [9] above), it challenges the primary judge's findings as to the extent of Mr Williams' physical injury. It also challenges the primary judge's findings as to the extent of his mental harm and his Honour's finding that it was caused by the event of 1 June 2012. Metcash's challenge to the primary judge's assessment of damages depends to a small extent upon its challenge to the primary judge's findings as to the extent of Mr Williams' physical injury arising from the lifting on 1 June 2012, but to a much greater extent upon its challenge to his Honour's finding that Mr Williams' mental harm was caused by the injury as so found. 2. The assessment is complicated by the fact that prior to 1 June 2012, Mr Williams had suffered back pain and had been diagnosed with clinical depression. The medical evidence was voluminous. The primary judge carefully summarised that evidence and drew his conclusions from it (Judgment [149]-[283], [378]-[381] and [384]). Many medical reports were tendered. The only doctor to give oral evidence was a Dr Charles Rhee who was Mr Williams' general practitioner from 2009 until 2013. Dr Rhee was called by Metcash who sought (unsuccessfully) to establish through him that Mr Williams' chronic back pain, as well as depression, continued from 2010 to January 2012 immediately before he commenced work with Metcash (Judgment [163]). The primary judge found that Mr Williams' existing back problems had resolved by early 2010 (Judgment [265]) and certainly by the time he commenced work with Metcash in late February 2012 (Judgment [268]). The ground of appeal challenging that finding was not pressed. 3. Mr Williams saw a number of medical practitioners about his back after 1 June 2012, including a Dr Bodel. He was also examined by doctors retained by Metcash's insurer; a Dr Maxwell and a Dr Casikar. 4. Mr Williams was examined by Dr Casikar on 4 February 2013. Dr Casikar, a neurosurgeon, reported that: "He was walking freely unobserved; however, when advised to walk in the examination room, he indicated an inability to walk on his heels and toes. His gait was very strange. His back movements were very restricted. ... Mr Williams has an aggravation to his back on a background of pre-existing degenerative disease of the lumbar spine. The description of the incident and the clinical findings suggest a musculoligamentous injury. In my opinion, this has now ceased. Mr Williams indicated severe back pain. The neurological examination was essentially normal. He seemed to be embellishing his symptoms. His neurological symptoms are non-verifiable. The nerve conduction study requested by Dr Charles New was also normal. I therefore believe at the moment that Mr Williams does not have any symptoms attributable to his alleged work injury that occurred on 1 June 2012. His symptoms are probably due to the significant degenerative disease of the lumbar spine. There also seems to be significant emotional responses to his symptoms. He notes that he has been treated for depression for a year. This probably explains his symptoms. He needs evaluation by a psychiatrist to assess the impact of his emotional problems on his symptoms. This is outside my area of expertise. I do not believe his present symptoms are in any way related to the work related injury that occurred on 1 June 2012." 1. Dr Bodel first examined Mr Williams on 15 February 2013. Dr Bodel is an orthopaedic surgeon. He examined an MRI scan of Mr Williams' lumbosacral spine and commented that there was "some minor bulging at the L4/5 level". On examination he reported that Mr Williams had "mechanical back ache associated with disc pathology at the lumbosacral junction with left-sided sciatica". He was not given an accurate medical history by Mr Williams. He reported that Mr Williams had had a "minor episode of back pain about four or five years ago". He reported that Mr Williams had deteriorating neurological function as had been noted by a Dr New. 2. Dr New's report dated 13 December 2013 (which refers to his having seen Mr Williams on 10 December 2012, suggesting the report bears the wrong year date) recorded Mr Williams' reporting having developed quite debilitating back pain and subsequent left-sided leg pain and that he had radicular pain or sciatica. Dr New reported that the sciatica was currently in the L5 and S1 nerve root distribution. He reported that "Radiographic investigation available for review confirms a disc bulge at L5/S1". 3. Dr Bodel examined Mr Williams again on 12 November 2013. 4. He reported that on examination: "There is tenderness on palpation at the lumbosacral junction and he reaches forward in flexion with his hands to the knees and there is increasing back and left buttock pain at this point and also pain on extension. He has a reduced range of lateral bending to the right. Straight-leg-raising is restricted on both sides and today it is 70 degrees on the right and 60 degrees on the left and there are positive nerve root tension signs on the left hand side. The left calf is 1.2cm smaller than the right. The knee and ankle jerk reflexes are present but the left ankle jerk is diminished in comparison to the right and there is a weakness of plantar flexion on the left. There is a sensory loss in the L5 and SI distribution on the left hand side." 1. On being asked to comment on relevant documentation he said: "I note the report of the MRI scan on 21 January 2013 showing a left sided disc injury at the L4/5 level. A treatment report from Dr New which is dated 13 December 2013 (? 2012) indicates this gentleman has mechanical backache associated with the minor disc pathology seen on the scans. He indicated 'bulging at L5/S1'. The report of the MRI scan indicates L4/5 may be the main culprit. Dr New recommended conservative care." 1. Dr Bodel also stated in his report of 12 November 2013 that Mr Williams' clinical condition was consistent with "... ongoing pathology associated with the disc injury at the lumbosacral junction" and that he had "continuing mechanical backache and left leg pain". His conclusion was that Mr Williams "... has mechanical backache associated with disc pathology at the lumbosacral junction with left sided sciatica and radiculopathy". 2. Mr Williams was again examined by Dr Casikar on 7 April 2014 for the purposes of an independent medical examination in regards to his compensation claim. 3. Dr Casikar reported that on examination Mr Williams was unable to walk on his heels and toe, but that movements of the back were within normal limits and his gait was normal. He said that Mr Williams' symptoms were non-verifiable on neurological examination. He believed that Mr Williams had "pain syndrome" that was unrelated to his employment. In amplification of this he said: "It is possible that Mr Williams has been complaining of pain in the back and in the left leg following the work related injury. Multiple MRI examinations have not shown any structural damage which would explain his symptoms. The MRI scans have only shown degenerative disease at the L3/4 and L4/5 segments with a small disc bulge at the L4/5 segment on the left side. The radiological appearances are inconsistent with his clinical presentation. I therefore believe that Mr Williams' work related injury has resolved. His present symptoms are entirely due to his pain syndrome." 1. When asked whether any further treatment or surgery was indicated, Dr Casikar said: "Mr Williams does not require any treatment or surgery. I agree with the opinions of the specialists mentioned above. The only treatment he requires is management of his pain syndrome. He is already seeing a psychologist and I believe this should be continued. The pain syndrome is not as a consequence of his work related injury." 1. On 2 October 2014 Mr Williams was examined by Dr Maxwell, an orthopaedic and spinal surgeon. Dr Maxwell reported that: "Mr Matthew Williams complained of some back discomfort in the course of his work. At some stage he subsequently complained of discomfort in the whole of his left leg. The investigations are normal and the physical examination is noted for conscious fabrication of the range of movement with paradoxical ranges of movement when standing and sitting. He also has other non-organic signs including extreme hypersensitivity to light palpation, numbness in the whole left leg and he had giving way on testing of motor power. Straight leg raising was also severely restricted while lying but he was able to sit upright with both legs fully extended and reach to his ankles. There was modified pain behaviour during the course of the examination with sighing, grimacing and rapid intakes of breath. There is no evidence that Mr Williams has sustained any pathological condition in the course of his work. There is no evidence he should be treated with narcotic analgesics which can only serve to potentiate his perception of pain. His depression is partly due to boredom because he has been certified unfit for work." 1. Dr Maxwell opined that the cause of Mr Williams' back pain was a somatic manifestation of underlying depression. He did not consider that Mr Williams had any specific back injury. 2. Dr Bodel saw Mr Williams again on 15 May 2015 and provided a report of 20 May 2015 in respect of that examination. Dr Bodel had been provided with Dr Casikar's report of 7 April 2014. He made no reference to Dr Maxwell's report of 2 October 2014. 3. In his report of 20 May 2015, Dr Bodel referred to an MRI scan conducted on 1 December 2014. He said of that scan that it showed "... some minor central and left-sided disc pathology at the L4/5 and L5/S1 levels." 4. He continued: "I note the nerve conduction studies done by Dr Hyunmin Park, dated 20 August 2012, confirming that there is 'no distal nerve conduction abnormality of the left lower limb' and there is 'no active denervation change on the left hand side.' Clinically he does have some objective signs of L5 nerve root irritability in the left lower limb for the reasons outlined above." 1. When later asked about his diagnosis, he said: "The diagnosis here is based on his clinical presentation and I am confident that there is significant disc pathology in the lumbosacral region causing nerve root irritability involving the L5 nerve root. I am aware that the scans that have been done do show a fairly subtle pathology but it does appear to be quite genuine when taken in conjunction with his clinical presentation." 1. Dr Bodel later commented: "I have also read the enclosed medical report from Dr Casikar dated 07 April 2014. He confirms that this gentleman has had a disc injury and that there has been an aggravation of that disc injury by work. He describes his diagnoses as being a 'pain syndrome'. He found non-verifiable neurological findings and could not identify definite neurology. I still find that there is a mild impediment of the L5 nerve root on the left hand side with a diminished medial hamstring reflex and weakness of extension of the left great toe. I am still comfortable that there is evidence of radiculopathy in the left leg." 1. Dr Casikar provided a further report on 12 January 2016. He said: "Mr Williams continues to complain of back pain. The initial injury that occurred in July of 2012 was probably musculoligamentous injury. These kind of injuries normally recover in about six to eight weeks. His continued complaints of back pain over a period of three years is difficult to explain on medical evidence. The neurological examination has remained normal. Dr Bodel in his report dated 20/5/2015 has agreed with my assessment that Mr Williams has predominantly a psychogenic problem. His neurological examination was also essentially normal. Dr Bodel indicates that there was some hypoaesthesia over L5/S1 segment. This was not verifiable on my examination. His complaints of hypoaesthesia over the entire left lower limb was not diagnostic of a lower lumber [sic] spinal injury. Dr Bodel also indicates that the left calf muscle is slightly smaller than the right. On my previous examination Mr Williams had in fact indicated that following a very extensive tattooing of his left lower limb his left leg had in fact become bigger. There seems to be a significant discrepancy in this regard. Dr Maxwell in his report dated 2/10/2014 has indicated that Mr Williams does not have any workplace injury and his problem is predominantly psychogenic. He has indicated that as far as the examination is concerned he is fit to return to full duties. However he has indicated that his depression may be a major barrier. Dr Allnut and DrTeoh, the psychiatrists, have identified significant depressive illness. As far as the relationship to his illness his psychological problems and the workplace injury there seems to be some difference of opinion. In short all the various examinations by the specialists have accepted that Mr Williams has predominantly an emotional component and that there is no organic basis for his symptoms as a consequence of his workplace injury. There have been no major differences in the fundamental assessment of his problem." 1. Dr Casikar adhered to his view that the workplace injury of 2012 had completely resolved. He said: "The musculoligamentous injuries normally take about six weeks to resolve. His symptoms of back pain for three years is not substantiated by evidence based medical opinion. ... There has been no radiological evidence to support Mr Williams' complaints. ... Following my re-examination and consideration of the enclosed updated material, my original opinion of Mr Williams has not changed. In my opinion, he had a workplace injury. This was a musculoligamentous injury and this injury has now resolved." 1. Dr Casikar also said: "Dr Bodel's comment that there is a significant disc pathology in the lumbar sacral region causing nerve root irritability involving L5 nerve root is based on Mr Williams' complaints of reduced sensation on the outer aspect of the left leg. I believe that this has led Dr Bodel to make this observation. However when I examined him he complained of reduced sensation over the entire left lower limb. The inconsistencies in the clinical examinations suggests that Mr Williams does not have any definite neurological injury. It would be inappropriate to make a diagnosis of a nerve root involvement based mainly on the patient's symptoms. It is also necessary to note that the recent neurophysiology examination did not indicate any pathology. In my opinion there is no evidence to suggest that Mr Williams has a L5 nerve root involvement." 1. He concluded that Mr Williams did not require any form of treatment, except management of his depression by a psychologist or psychiatrist. 2. Dr Maxwell also provided a further report on 27 January 2016 following his examination of Mr Williams on 25 January 2016. He stated that the opinion he provided was based entirely upon an evaluation of objective findings identified on 25 January 2016. Mr Williams had told Dr Maxwell that if he sat for more than 15 minutes he felt he had to get up and stretch to keep his left leg moving. He told Dr Maxwell that when he got up in the morning at about 7.00am he did 15 minutes of exercises that made his left leg tingle so that he had to stop. He said that the tingling involved the whole of his leg below the knee. Dr Maxwell reported that Mr Williams told him that one night he scratched his back and then found that the whole of the left side of his lumbar region was "dead", just above the belt line. He said that it settled down and had not been noticed again. Dr Maxwell recorded that Mr Williams told him that he experienced pain down a line from the left side of his back into his left buttock and from there down the back of his left thigh and across his front knee to the front of his calf and into the little toe. After examining Mr Williams, Dr Maxwell reported that: "Mr Williams still complains of low back pain and leg symptoms which do not fit a dermatomal or radicular pattern. He has [sic] giving way on testing of motor power. There is no muscle wasting and he has a non-organic distribution of sensory loss in his left leg." 1. Dr Maxwell referred to Dr Bodel's report of 20 May 2015. He commented on that report as follows: "Further report by Dr James Bodel on 20 May 2015 suggests that his current complaints are left sided foot drop. Dr Bodel surprisingly noted that he was able to flex and reach to his knees on formal examination. He also suggested that straight leg raising was 80° on the right and 60° on the left but Mr Williams indicated to me that he could not straight leg raise because it hurt his back too much beyond about 2°. Dr Bodel suggested that the left calf was 1.2cm smaller than the right. I found the calves to be of equal diameter. I felt the medial hamstring reflex was present on both legs. I found no specific sensory loss in the L5 distribution. The sensory loss involved all of the dermatomes of his left leg. It was suggested there was weakness of extension of the left great toe. I found there was giving way or testing motor power in the left leg. Dr Bodel suggested he was confident there was nerve root irritation involving the L5 nerve root. Irritability of the L5 nerve root does not cause pain radiating down the middle of the back of the thigh, radiating across the front of the knee, down the front of the calf and into the little toe. Dr Bodel suggested that his clinical presentation is consistent with this. I found his clinical presentation was consistent with conscious fabrication. I note he had a multi-positional MRI scan of his lumbosacral spine on 2 December 2014 which suggested there was a lateral herniation contacting the exiting L3 nerve root at the L3/4 level. It should be noted that an L3 nerve root irritation will not cause any symptoms below the knee. At L4/5 it was noted that the canal and foraminal regions were widely patent. There was no direct nerve root contact. At L5/S1 there was also no nerve root contact." 1. Dr Maxwell concluded that: "Symptoms in the presence of psychological problems are an unreliable guide to underlying pathology. ... I consider the pre-existing conditions are more a reflection of his underlying psychological problems. He experiences somatic manifestations of his underlying depression and personality disorder which are contributing to his current conditions and disabilities. There is also evidence of conscious fabrication." 1. On 7 October 2016 Drs Maxwell, Bodel and Casikar met in conclave to identify their areas of agreement or disagreement, and to summarise their reasons where they disagreed. They answered a series of questions. The report of their meeting includes the following: "Radiculopathy - Dr Casiker [sic] and Dr Maxwell both agree that there is no objective evidence in relation to his symptoms, the clinical signs and the investigations which indicate that he has suffered or continues to suffer radiculopathy. Dr Bodel disagreed to a certain extent. He considered when he saw Mr Williams approximately 18 months ago that he did feel he had signs of mild L5 radiculopathy. He considered this was somewhat intermittent. ... Pain and restriction of movement of the back – Dr Maxwell, Dr Casikar and Dr Bodel noted that the reported restriction of movement is not consistent and pain is entirely subjective and cannot be objectively measured. They also noted prior to the subject incident that Mr Williams also reported pain and restriction of movement in his back. Continuing pain in the left leg – This is a symptom. Dr Maxwell and Dr Casikar again suggested there was no evidence of radiculopathy. They therefore felt [that] any subjective experience of pain in his left leg was not due to nerve root impingement. Dr Bodel felt there may have been mild L5 radicular symptoms because when he examined Mr Williams approximately 18 months ago there were some weak radicular signs. ... Restriction in ability to lift, carry, stand or lie down – Dr Bodel, Dr Casikar and Dr Maxwell agree that these symptoms are subjective and they do not consider there is any physical or pathological reason why Mr Williams cannot lift, carry, stand or lie down. Sleep disturbance – Dr Bodel, Dr Casikar and Dr Maxwell all agree that they do not consider there is any pathological lesion in relation to his lumbar spine which would cause sleep disturbance. They also note that sleep disturbance is [a] common symptom of depression. Dr Maxwell also noted when he examined Mr Williams on the 2/10/2014 that he suggested he felt better when he was lying flat on his back. There was agreement therefore that there was no physical reason why Mr Williams cannot sleep. ... Difficulties with performing household chores and duties – Dr Bodel, Dr Casikar and Dr Maxwell agree that there was no neurological or other pathological lesion which would cause difficulty in performing household chores and duties. Reduced enjoyment of life – It is noted that Mr Williams has been suffering from depression for many years prior to the subject incident of 2012. There is therefore general agreement that there is no evidence that the subject incident has caused reduced enjoyment of life. Reduced work capacity – Dr Casikar and Dr Maxwell regarded this as a subjective complaint but they did not consider there was any reduction in work capacity as a result of any pathological lesion caused by his work incident in 2012. Dr Bodel disagreed in part. He considered that there may be slight reduced work capacity as a result of the subject incident of 2012. Anxiety and stress – There was general agreement between Dr Bodel, Dr Casikar and Dr Maxwell that Mr Williams was suffering psychological symptoms prior to the subject incident. Depression – Dr Bodel, Dr Casikar and Dr Maxwell all agree that Mr Williams had a long, previous history of depression and there is no evidence that this has been altered by the subject incident." 1. Later in their report the doctors again summarised their views in relation to whether or not there was evidence of radiculopathy. The report states: "5. ... Dr Casikar and Dr Maxwell did not consider there was any evidence of radiculopathy. They also noted the investigations were essentially normal. He has had numerous MRI scans and the different reports reflect the subjective analysis of the images by the radiologists but there was no consistent clinical or radiological evidence of radiculopathy. They also noted Mr Williams had a long history of depression. Individuals with depression suffer somatic symptoms which are manifestations of their underlying depression. One of these symptoms is back pain and this can occur without any specific pathological lesion. Dr Bodel partly disagreed. He considered that it is possible Mr Williams may have sustained an injury to the L5 nerve root. 6. When do you consider the injuries resolved? - Both Dr Casikar and Dr Maxwell considered any work related injury secondary to a back sprain would have resolved within 4 weeks the normal time it takes for pain from a lumbar sprain to resolve. ... 8. Does the plaintiff continue to experience any disabilities attributable to the accident? - Dr Casikar and Dr Maxwell did not consider Mr Williams continues to experience any disabilities attributable to the 'accident'. Both Dr Casikar and Dr Maxwell note that he does not have any objective evidence of a pathological lesion of his lumbar spine. They note he experiences some symptoms. They do not however consider that his symptoms of back pain should be disabling and they both consider that physical activity is indicated. They do not consider there is any evidence radiologically or clinically that he has any specific pathological lesion which would prevent him from carrying out physical activities including personal care activities and home duties. Dr Bodel again suggested when he examined Mr Williams he felt he had some clinical signs of L5 radiculopathy. Dr Bodel did indicate however that he has not examined him for 18 months. ... 11. We refer to the enclosed schedule of radiological investigations undertaken. Are the findings on radiological investigations consistent with the injuries/disabilities which are alleged to have been caused by the accident? - Dr Bodel, Dr Casikar C and Dr Maxwell agree that none of these investigations are consistent with any specific injury or disability alleged to be caused by the subject accident. They agree that there is no objective evidence of L5 nerve root impingement on any of the investigations. ... ... none of the investigations show any evidence of radiculopathy. They merely show underlying normal variants of no particular clinical significance. The diagnosis of disc bulging noted on some of the investigations is not significant in this case because the disc bulges are not large enough to cause any nerve root impingement. It is considered by all three surgeons that these are normal variants. ... 23. What are your joint diagnoses? - Dr Bodel, Dr Casikar and Dr Maxwell agree that they do not have a physical diagnosis. They note he complains of back pain but they do not consider there is any evidence that he has any pathological condition to support this claim of back pain and it should be noted that pain is entirely subjective. Back pain is an extremely common manifestation of underlying psychological problems such as depression." 1. These doctors' reports and their opinions summarised in the report of their conclave raised the real possibility that Mr Williams was consciously exaggerating his symptoms and pain, although Dr Casikar's report of 7 April 2014 in which he opined that Mr Williams' symptoms were entirely due to his "pain syndrome", Dr Maxwell's opinion that the cause of Mr Williams' back pain was a somatic manifestation of underlying depression, and the unanimous opinion of Drs Maxwell, Casikar and Bodel that pain is entirely subjective and cannot be objectively measured, does not indicate that the pain reported by Mr Williams was not real. 2. The primary judge had considerable reservations as to the reliability of Mr Williams' evidence (Judgment [62]). His Honour had no such reservations about the evidence given by his de facto partner, Ms Nafsika Stylianou. His Honour found her to be completely frank and honest (Judgment [77] and [274]). She gave evidence that Mr Williams appeared to be in pain frequently and often had to stop activities and lie down and never had a proper night's sleep. She said that his condition varied from day to day, but every day was difficult for him to some degree and on occasions, she had to assist him in activities of daily living if he was in a lot of pain. She did all the domestic duties around the house, apart from Mr Williams doing a minimal amount of sweeping, loading the top dishwasher and a modest amount of food preparation (Judgment [67]). Ms Stylianou did not have a driver's licence and had to change jobs as Mr Williams was not always able to pick her up from the railway station due to his pain and the fact that he was frequently resting. He was unable to sit in a cinema. He had on occasions attempted to mow the lawn but usually could not complete the task. Mr Williams could not load the clothes dryer because it was too low (Judgment [67]-[75]). 3. The primary judge found on the basis of Ms Stylianou's evidence that: "It seems inconceivable that the plaintiff would be able to portray a picture of serious disability to her over a period of a number of years unless there was some objective basis for problems with his lower back or he was suffering from a fairly serious pain syndrome." (Judgment [274]) 1. The primary judge accepted that there was not an objective basis for problems with Mr Williams' lower back. His Honour found: "275 Taking all of the evidence into account, I find that the plaintiff did suffer a back injury on 1 June 2012 which caused a musculo-ligamentous strain and soft tissue injury and ongoing pain to the plaintiff of an intermittent type. I prefer the opinion of Dr Bodel in this regard to that of Dr Maxwell and Dr Casikar as it is consistent with the radiological evidence, the plaintiffs presentation and importantly Ms Stylianou's evidence, I accept the plaintiff has had some continuing modest back problems although not to the extent to which he claims. I also accept the evidence of Ms Stylianou that the plaintiff has displayed to her ongoing back pain and restrictions which are unlikely to have been portrayed falsely by him over such a lengthy period. 276 However, I also accept the substance of the joint conclave report dated 7 October 2016 that the plaintiff's problems in his back do not involve an injury to the L5 nerve root and if they exist (Dr Bodel) were of a reasonably mild nature. I also accept the conclave report where the three doctors agreed that as at the date of their joint report the plaintiff has full capacity for employment without restrictions (although this seems slightly inconsistent with the opinion of Dr Bodel expressed on page three of the report)." 1. His Honour found that the plaintiff suffered a back injury on 1 June 2012 that caused modest disc bulging (Judgment [378(a)]). However, he accepted that the disc bulging was not significant because it was not large enough to cause any nerve root impingement and was within a normal variance (Judgment [310(27)(m)]). 2. The primary judge also found that Mr Williams had a relatively mild back injury "with signs of intermittent and mild L5 radiculopathy in accordance with Dr Bodel's opinion up to 2015" (Judgment [283]). Metcash submitted that the primary judge's finding that Mr Williams' problems in his back did not involve an injury to the L5 nerve root (Judgment [378(a)])) is inconsistent with his Honour's finding that there were signs of intermittent and mild L5 radiculopathy. That is not self-evident. Apparently, Dr Bodel did not consider there was any inconsistency between his findings (that he noted had been made 18 months before the conclave) that Mr Williams may have had mild L5 radicular symptoms, may have sustained an injury to the L5 nerve root and did have some clinical signs of L5 radiculopathy on the one hand, and the unanimous opinion that there was no objective evidence of "L5 nerve root impingement" which was a reference to the nerve root not being impinged by disc bulges (answers to questions 11 and 13) on the other. There was no medical evidence that the latter excluded some other impairment of the nerve in the spine causing radicular pain to radiate from the back down the left leg. 3. Metcash challenged the finding that Mr Williams' injury included disc bulging and challenged the primary judge's finding that Mr Williams had some intermittent back pain after the accident (Judgment [310(27)(r)]). Metcash submitted that these findings were based upon a finding that there was a radiological difference between reports concerning Mr Williams' back before and after the accident. It submitted that the primary judge was not entitled to make a finding regarding comparisons between radiology reports without expert opinion or to make such a finding that was incompatible with what was said to be the unanimous opinion of the doctors. 4. The primary judge did not make a comparison between radiology reports without expert opinion to assist him. Contrary to Metcash's submissions he did not compare x-rays taken before and after the incident to draw conclusions about Mr Williams' having suffered an injury as a result of the lifting on 1 June 2012. Rather, his Honour referred to radiological reports before and after the accident. On 11 March 2009, a Dr Kenneth Cooke, radiologist, reported on an examination made on 3 March 2009 on the results of an x-ray and CT scan of Mr Williams' lumbar spine. They were normal. Dr Cooke reported that there was no sign of disc herniation or bulging at any level. On 26 March 2009, a Dr O'Rourke, radiologist, reported that an MRI of the lumbosacral spine carried out on 20 March 2009 was normal and there was "no focal disc protrusion or diffuse disc bulge at any level." By contrast, Dr Charles New, an orthopaedic and spinal surgeon, reported on 13 December 2013 (semble 13 December 2012) that "radiographic investigation available for review confirms a disc bulge at L5/S1" and as noted above, Dr Bodel reported on 26 August 2014 that a CT scan carried out on 16 July 2012 showed evidence of definite disc pathology principally at the L4/5 level ([see [106] above]). 5. The fact that the disc bulge did not impinge on the nerve root did not mean that the primary judge was in error in finding that it was caused by the events of 1 June 2012. 6. But in any event, this submission is a red herring. The primary judge accepted that Mr Williams' pain was not caused by the bulging of the disc and that his ongoing pain was not caused by ongoing physical injury to his back. Psychiatric injury 1. As noted above, both Dr Casikar and Dr Maxwell were of the view that Mr Williams' pain syndrome was not the consequence of a work-related injury, but his underlying depression. Neither is a psychiatrist. That opinion would appear to lie outside their areas of expertise. The primary judge dealt with the issue of psychiatric injury as follows: "277 A difficult issue is the allegation of psychiatric injury. The plaintiff's presentation in court was of a person who was intelligent, ordered in his thoughts and able to deal with extensive cross-examination over a number of days. The plaintiff expressly denied that he had psychiatric problems towards the end of his cross-examination: T515.5. However, the plaintiff also appeared very sorry for himself due to his pain and restrictions. I take into account that the plaintiff complained of pain and sought adjournments on a number of occasions because of it. 278 I also am of the view that the medical material in evidence shows that the plaintiff suffered serious depression problems in 2009-10 and attempted suicide on at least one occasion. The prescription of Pristiq by Dr Rhee in 2011 suggests ongoing depression problems. The plaintiff denied taking anti depression medication at the time he started with the defendant: T122.33. However, Dr Rhee's third medical certificate in January 2012 suggests further depression problems. 279 Having reviewed the reports of Dr Allnutt and Dr Teoh carefully, and considering the earlier medical evidence, I prefer the view of Dr Allnutt that the plaintiff does have a psychiatric condition arising from the accident being a persistent depressive disorder with a differential diagnosis of adjustment disorder. I also find that the plaintiff requires pain management, a view which was common to Dr Allnutt and Dr Teoh. In the end I reject Dr Teoh's opinion on page 2 of the conclave psychiatric report that although the plaintiff was experiencing emotional stress symptoms as a result of chronic pain characterised by feeling upset, being negative and irritable, he did not display psychiatric symptoms to the extent that he would meet criteria for a diagnosable psychiatric condition. 280 This conclusion is assisted by the opinions of Drs Maxwell/Casikar and Bodel in relation to the relatively mild nature of the plaintiffs back injury. 281 The plaintiff's presentation and pain can therefore be put down to: (a) Conscious exaggeration by him; (b) Depressive illness with a pain syndrome; or (c) Depressive illness arising from a limited back injury and a pain syndrome. 282 Having regard to the plaintiffs presentation, Dr Bodel's reports, Dr Allnutt's reports, the conclave psychiatric report, the conclave orthopaedic report, the evidence of Ms Stylianou and the plaintiff's depression in 2009-2012, I consider it likely and I find that the plaintiff continues to suffer from depression arising from a limited back injury and a pain syndrome. As the medical material does not suggest debilitating depression when the plaintiff started work for the defendant, and he appeared initially able to perform his duties for the defendant, I find that the current psychiatric condition of the plaintiff arose from and was caused by the back injuries received in the accident on 1 June 2012. Clearly, however, the plaintiff was prone to depression as his history from 2009-2012 makes clear. I accept Dr Allnutt's view in the conclave report that the plaintiff's current condition was of mild to moderate severity. ... 283 Accordingly, the medical evidence establishes in my view that the plaintiff had a relatively mild back injury with signs of intermittent and mild L5 radiculopathy in accordance with Dr Bodel's opinion up to 2015 which does not affect his work capacity now. The plaintiff also has a depressive illness arising from the accident of a mild to moderate severity which requires treatment and does affect his work capacity." 1. Metcash submitted that because the primary judge found there was only a musculo-ligamentous injury of a relatively mild nature, there was no basis for a finding that the injury was causing ongoing symptoms and that the primary judge erred in accepting the opinion of Dr Allnutt which, so it was submitted, was said to be predicated upon the assumption that Mr Williams had sustained a back injury that caused chronic low back pain. Metcash also says that Dr Allnutt relied upon an incorrect and misleading medical history. 2. Mr Williams was referred to examination by a Dr Ben Teoh, a psychiatrist, by Metcash's workers' compensation insurer. Dr Teoh examined Mr Williams on 4 April 2013 and provided a report to the insurer on 15 April 2013. Dr Teoh is a WorkCover accredited impairment assessor. 3. Dr Teoh took a history from Mr Williams. Mr Williams reported that he sustained an injury at work on 1 June 2012 lifting boxes of dog food and experienced acute pain affecting his lower back. He told Dr Teoh that the pain was "massive". He consulted a doctor. He thought he had muscular strain and returned to work. Dr Teoh then reported: "His pain persisted, and he had further investigations. He was told that he had sustained a 'herniated disc of the lumbar spine'. He was prescribed analgesic medication and referred for physiotherapy. He consulted a neurosurgeon; but he has not had any surgery. He has been complaining of chronic pain affecting his lower back, and radiating to his foot. He had intensive physiotherapy. He has been referred to a pain specialist. He said that his employment was terminated. He was certified by the company doctors that he was suitable to return to work, but his general practitioner, Dr Rhee, said that he cannot return to work. Mr Williams said that he has been feeling depressed because he has been waking up in pain. He has been preoccupied with his physical pain and disability. He said that he cannot do anything. He could not elaborate on the extent of his emotional distress. He said that he has not been going out because his legs give out on him. He feels restless. He has been seeing a pain specialist, Dr Lam, every six weeks. He said that he is not able to drive because of the pain. He has not had any counselling. Mr Williams had a history of depression three years ago when he lost his licence because of driving offences. He was prescribed antidepressant medication, and his mood had improved. He reported feeling depressed and lacking motivation because he did not have a driving licence. He was referred to a psychiatrist, and he had counselling. He said that his emotional distress at the moment is different from his depression three years ago. He said that he cannot do anything physical." 1. Dr Teoh reported that Mr Williams was preoccupied with physical pain and disability and reported emotional distress and social inactivity and difficulty with sleeping. There was no evidence of psychotic symptoms or suicidal ideation. His cognitive functions were intact. Dr Teoh was asked to provide a diagnosis according to criteria outlined in DSM-IV (including causation). His opinion was: "It is my opinion that Mr Williams' presentation is not consistent with a psychiatric diagnosis DSM-IV diagnostic criteria. He has reported emotional distress secondary to physical pain and disability. However, these symptoms are not pervasive or intense to indicate a psychiatric diagnosis." 1. Dr Teoh also said that it was his opinion that Mr Williams was not suffering from a recognisable psychiatric diagnosis or mental condition. Mr Williams had described some emotional distress as a result of his physical pain and disability, but those symptoms were not indicative of a psychiatric disorder. 2. Dr Allnutt is a psychiatrist. He provided a report on 2 March 2015 following a clinical evaluation of Mr Williams on 27 February 2015. Under the heading "the Index Injury" Dr Allnutt recorded a history. It is not clear how much of this was the result of information conveyed by Mr Williams or how much might have been conveyed by Dr Allnutt's letter of instructions of 27 February 2015. The latter was not included in the appeal books. Presumably, it was not tendered. 3. Dr Allnutt reported that the index injury occurred on 29 May and 1 June 2012. At the time of the injury, Mr Williams was not taking medication and was not seeing a mental health professional. He recorded that Mr Williams had had prior contact with a mental health professional when he was aged about 23 or 24 when he was diagnosed with depression. He recorded that at about that time (viz. about 2009 or 2010) he also attempted suicide. The trigger for the depression was his losing his licence and becoming bankrupt. He had a lifelong interest in cars. He was unaware of any further episodes of depression until after the injury. There were no significant deaths, losses, disappointments, financial, legal or social difficulties other than three years prior to the injury when he lost his licence. At the time of the injury, he had a reasonable mood and good sleep, appetite, energy, motivation and concentration. He maintained his interests and could find pleasure in activities and was not experiencing suicidal thoughts. He was not dependent on anyone. He attended to his grooming and ate regular meals. He went out socially and could travel to familiar and unfamiliar places unaccompanied. He had a circle of friends and there were no problems with his concentration. 4. Mr Williams gave a more detailed description of suffering a sharp stabbing pain down his back on 29 May 2012 and again on 1 June 2012. Dr Allnutt said: "Various investigations had since been conducted and he had been diagnosed with herniated discs, fissuring and sciatica in the L3/L4/L5 area, numbness and his leg giving out." 1. Dr Allnutt then under the heading "Current Clinical Issues" described in detail Mr Williams' report of his symptoms and how they affected him. His diagnosis was that: "2. Diagnosis? Your client manifests a constellation of anxiety and depressive symptoms. The depressive symptoms are characterised by a depressed mood with reduced and impaired sleep, fluctuating appetite, reduced energy and motivation, difficulties with concentration, reduced self-esteem, loss of interest in usual activities, anhedonia and intermittent suicidal ideation, consistent in my view with a major depressive disorder. Given that these symptoms persist, he manifests a persistent depressive disorder at this point. The anxiety symptoms are characterised by tightness in his chest, dizziness, an unusual feeling through his body and a dry mouth, consistent with panic attacks. 3. Prognosis? The symptoms have been persistent for many years. The most significant aggravating factor appears to be chronic low back pain and the impact that this has on his capacity and subsequently on his mental state and self-esteem, ultimately creating a sense of demoralisation. As long as these symptoms persist he would likely continue to experience difficulties with his mood." 1. Dr Allnutt said that: "In my opinion the injuries of 29 May 2012 and 1 June 2012 contributed significantly to his current mental state." 1. Dr Teoh examined Mr Williams again on 9 February 2016. On 15 February 2016, he provided a further report. Dr Teoh said that Mr Williams' presentation was not consistent with a psychiatric diagnosis. Rather, he had persistent emotional distress as a result of chronic pain and physical disability. Mr Williams told Dr Teoh that he did not need psychiatric treatment. He was angry that he had to talk about the injury and did not want to discuss it. He had not been able to see his future because of his lack of recovery from his physical condition. Dr Teoh commented that Mr Williams "did not elaborate the symptoms that he related to Dr Allnutt. The history that Dr Allnutt obtained is not consistent with what I had obtained in my interview." 2. The history Dr Allnutt obtained was, however, substantially corroborated by Ms Stylianou's evidence. 3. Dr Allnutt and Dr Teoh conducted a conclave by telephone on 2 November 2016. They provided a joint report answering specific questions asked of them. 4. Both Dr Allnutt and Dr Teoh agreed that Mr Williams had a vulnerability to depression based on his pre-injury history. They were unable to provide an opinion as to the effects of that condition because Mr Williams denied symptoms. 5. They were asked whether on the balance of probabilities the 1 June 2012 incident had an impact on Mr Williams' pre-accident depression. They responded as follows: "Dr Allnutt believes that the incident of 1 June 2012 triggered the onset of a constellation of depressive symptoms. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis related to the accident." 1. The report from the conclave also included the following: "2. Does the plaintiff suffer from a diagnosable mental disorder, illness or condition? Dr Teoh believes that he was experiencing emotional stress symptoms as a result of chronic pain characterised by feeling upset, being negative and irritable but did not believe that he satisfied symptoms to the extent that he would meet criteria for a diagnosable psychiatric condition. Dr Allnutt believes that he manifested a psychological reaction to the accident and that because he reports a constellation of depressive and anxiety symptoms that he has a persistent depressive disorder with a differential diagnosis of adjustment disorder. He has associated panic attacks which denote a degree of severity. 3. If the answer to question 2 above is "yes". (a) What was its nature and extent? Dr Allnutt believed that the condition was of mild to moderate severity given his reported functional impairments. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. (b) What were the effects of the condition ? Dr Allnutt believed that attending to his activities of daily living less. He socialised less, was socially withdrawn and felt self conscious in social situations. He felt anxious when travelling. The was strain in his relationships and he had reduced sexual potency, and was unemployed Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. (c) Are its effects ongoing? Dr Allnutt believed that the effects of the psychiatric condition are ongoing. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. ... (e) If ongoing, what is your opinion as to the likely nature, extent and duration? Dr Allnutt believed that long as he remained distressed about his perception of his physical condition, the associated social stressors, he will continue to experience impairments. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. 4. Were each or any of the conditions described in response to question 2 above caused or contributed to by the accident? If so, how? If not, why not? In Dr Allnutt's view, the accident caused a persistent depressive disorder but noted that he did have a predisposition to depression. 5. Which of the disabilities alleged in the Amended Statement of Particulars dated 17 July 2015 (referrable to your field/s of expertise) were caused by the accident? Dr Allnutt believed that the disabilities would include sleep disturbance, reduced ability to engage in pre-injury social pursuits, reduced enjoyment of life, reduced work capacity, anxieties and stress and Depression would be the disabilities caused by the accident. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. ... 8. In relation to the period from 1 June 2012 to date has the Plaintiffs [sic] suffered an incapacity for work due to [his] psychiatric or psychological condition? If so, what? Dr Allnutt believes he has, as a result of his depressive and anxiety symptoms. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. 9. If the answer to question 8 above is 'yes' (a) Total for the whole period; or (b) In part total and in part partial Dr Allnutt believed he had partial impairment for the whole period from a psychiatric perspective. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. ... 12. Does the Plaintiff currently have a capacity for employment on the open labour market? Dr Allnutt believes that he would be compromised if he sought work in the open labour market at this stage. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis. 13. Does the Plaintiff have any restrictions or limitations on the Plaintiff's capacity for employment due to any ongoing conditions or disabilities caused by the accident? Dr Allnutt believed that his disabilities impacted on his capacity for employment, with reduced energy and motivation (which impacts on his potential to engage in the workplace), his poor self-esteem and demoralisation (which undermines his motivation to seek work), his cognitive difficulties and loss of concentration, all of which would impact on his performance at work. Dr Teoh did not believe this was relevant because he did not have a psychiatric diagnosis." 1. As observed above neither Dr Allnutt nor Dr Teoh (nor Drs Bodel, Casikar or Maxwell) gave oral evidence. Evidently, Metcash did not seek further opinions from Dr Teoh on matters which he considered to be irrelevant because in his view Mr Williams did not suffer from a recognised psychiatric illness. 2. Mr Williams was not suing for pure mental harm where both at common law and under s 31 of the Civil Liability Act the harm would have to consist of a recognised psychiatric illness to be compensable. Rather, he was suing for mental harm said to be a consequence of physical injury. At common law the distress or other mental trauma that were the consequence of physical injury were compensable irrespective of whether or not they amounted to a recognised psychiatric illness. That position is now modified by s 33 of the Civil Liability Act which provides that an award of damages for economic loss for consequential mental harm resulting from negligence cannot be made unless the harm consists of a recognised psychiatric illness. Damages for non-economic loss for consequential mental harm can be awarded whether or not the consequential mental harm amounts to a recognised psychiatric illness. 3. Neither party mentioned s 32 of the Civil Liability Act in the hearing before the primary judge, nor on appeal. Section 32 altered the common law by imposing limits on the existence of a duty of care not to cause a plaintiff mental harm. It provides in substance that a defendant does not owe a duty of care to a plaintiff to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of a normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken, reflecting the recommendation made in the Ipp Report (Commonwealth of Australia, Review of the Law of Negligence: Final Report, (August 2002) at [9.37]). Subsection 32(3) provides that in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. Where the harm the plaintiff alleges he or she suffered is both physical injury and consequential mental harm, the duty of care to avoid consequential mental harm must be separately analysed. (Optus Administration Pty Limited v Wright [2017] NSWCA 21 at [35]-[36]; Hollier v Sutcliffe [2010] NSWSC 279 at [216]-[217]). 4. The primary judge was not asked to make any finding and did not make any finding as to whether it was foreseeable that a plaintiff of normal fortitude might suffer a recognised psychiatric illness in the circumstances of the case. 5. It was not a ground of cross-appeal, nor did Metcash submit, that the primary judge ought to have found that Mr Williams did not suffer a recognised psychiatric illness. 6. It is true that Dr Allnutt assumed a physical injury on both 29 May and 1 June 2012, whereas the primary judge found only an injury suffered on 1 June 2012, and that Dr Allnutt assumed a more serious physical injury than was found. But that does not mean that Dr Allnutt's opinion should be rejected. To the contrary, once it is accepted that Mr Williams' pain is real and not feigned, but is not explained by the physical injury to his back, then it can be concluded that it is psychogenic (to use Dr Casikar's terminology). 7. The primary judge found that Mr Williams had suffered a psychiatric injury. The primary judge identified the injury as pain syndrome. The conclusion that he suffered from such a syndrome was supported not only by the evidence of Dr Allnutt and Ms Stylianou, but also by the evidence of Dr Casikar and Dr Maxwell. The critical question was whether that condition was caused or materially contributed to by the relatively mild physical injury sustained by Mr Williams on 1 June 2012. The only witness with relevant qualifications to answer that question was Dr Allnutt, and his answer was in the affirmative. The primary judge did not err in accepting his opinion. Quantification of damages 1. Metcash's challenge to the primary judge's assessment of damages for non-economic loss, past and future out-of-pocket expenses, past loss of earnings and superannuation loss, future impairment of earning capacity, and past gratuitous care and future commercial care was predicated upon its successfully challenging the primary judge's findings that Mr Williams had suffered a significant psychiatric illness arising out of injury to his back caused by the lifting on 1 June 2012. As that challenge fails, it is unnecessary to address the primary judge's reasons and conclusions in respect of damages. 2. The Court was informed that the parties did confer in respect of the appropriate assessment of damages if damages were to be calculated in accordance with the primary judge's reasons and that those items had been substantially agreed, although there were still some items to be calculated. I do not know what matters might be in dispute. The calculation of damages as proposed by the solicitors for Metcash, if made in accordance with the primary judge's reasons, totalled $659,307.52 before deductions of 20 per cent for contributory negligence and 20 per cent pursuant to s 151Z(2) of the Workers Compensation Act 1987 (NSW). There is an apparent error in respect of the latter deduction in that it has been applied to all of the heads of damages, including non-economic loss, whereas Mr Williams would not be entitled to recover damages for non-economic loss had he sued his employer (Workers Compensation Act, s 151G). 3. If the parties cannot agree on the outstanding items they should provide short submissions in writing in relation to those items. If no further findings of fact need be made this Court should be in as good a position as the primary judge to resolve whatever might be the outstanding issues. 4. The orders of 23 June 2017 giving judgment for the defendant and ordering the plaintiff to pay the defendant's costs should be set aside. Instead, judgment should be entered for the plaintiff in an amount to be calculated in accordance with the reasons for judgment of the primary judge at [383]-[414] of his Honour's judgment, noting that the reduction of 20 per cent on account of s 151Z of the Workers Compensation Act is to be calculated having regard both to the percentage of responsibility of Mr Williams' employer as found by the primary judge and having regard to the limitations in the Workers Compensation Act on the quantum of damages that would have been payable by Mr Williams' employer had it been sued. 5. I propose the following orders: 1. Appeal allowed. 2. Cross-appeal dismissed. 3. Set aside orders 1 and 2 made in the District Court on 23 June 2017. 4. In lieu thereof direct entry of judgment for the plaintiff in an amount to be calculated in accordance with the reasons of the primary judge and with these reasons, such judgment to take effect from 23 June 2017. 5. Direct that within 21 days the parties provide to White JA's Associate either an agreed calculation of the amount for which judgment should be entered, or, in the absence of agreement, each party's calculation of the amount for which judgment should be entered and a short submission of no more than five pages identifying areas of disagreement and setting out each party's contentions in relation to matters on which agreement has not been reached. 6. Order that the respondent pay the appellant's costs of the proceedings below and of the appeal and cross-appeal. 1. SIMPSON AJA: I agree with White JA. ********** 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: 03 May 2019