District Court New South Wales Medium Neutral Citation: Fry v Ravensworth Operations Pty Limited [2019] NSWDC 648 Hearing dates: 3 and 4 September 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the defendant. (2) Costs reserved. Catchwords: TORTS – negligence – industrial accident – front end loader – missing grate – fall whilst conducting safety inspection – contributory negligence – momentary inadvertence – momentary blindness – causation – hip injury – shoulder injury – damages Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987, s 151E, s 151F, s 151G Cases Cited: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232 Mason v Demasi [2009] NSWCA 227 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 South 32 Ltd v Allfab Constructions Pty Ltd [2019] NSWCA 132 Category: Principal judgment Parties: Russell Fry (plaintiff) Ravensworth Operations Pty Limited (defendant) Representation: Counsel: Mr B Kelleher (plaintiff) Mr L King SC (defendant) Solicitors: Burke & Mead Lawyers (plaintiff) Sparke Helmore Lawyers (defendant) File Number(s): 2018/317007 Publication restriction: None Judgment 1. INTRODUCTION 1. Russell Fry was injured at work when he fell through a hole whilst on a large front end loader. A missing metal grate was the cause of the hole. Mr Fry sues his employer, Ravensworth Operations Pty Limited, for damages. 2. ISSUES 1. The issues in the proceedings are: 1. Did Ravensworth breach its duty in failing to replace the missing grate, prevent access to the hole, or warn Mr Fry. 2. Was Mr Fry guilty of contributory negligence in failing to notice the hole, and if so, what proportion of the damages should he bear. 3. Was Mr Fry's right hip disability caused by his fall. 4. What percentage of a most extreme case is represented by Mr Fry's shoulder and (if causation is satisfied) hip disabilities. 5. What, if any, damages should Mr Fry receive for: 1. future medical expenses; 2. future economic loss; and 3. future domestic assistance. 3. BACKGROUND 1. Mr Fry began work in the mining industry in about 1981. He commenced employment with Ravensworth, not far from Muswellbrook, in about 1996 as an open cut mining operator. 2. In 2015, Mr Fry's duties consisted of working on heavy machinery, principally on a Caterpillar front end loader used to move stockpiled coal or to remove overburden, but also on other machinery including a water truck. 3. In August and September 2015, pre-use inspections of the Caterpillar front end loader identified and reported on a missing metal grate on the front access platform. However, no repair was performed. At scheduled services in September and October, the problem appears not to have been identified. 4. On 22 October 2015 Mr Fry commenced his shift at 7pm. He was assigned to work on the loader. He received no warning about the missing grate. He was transported to the machine between 7 and 7.30pm and commenced a pre-use inspection to identify any hazards and check that the machine was safe. After an inspection at ground level, he climbed onto the machine to a platform about 4.5 metres from the ground and continued the inspection. He noticed that the windows were unclean and commenced to clean them. 5. At the time, although daylight saving was in operation, it was dark or gloomy and wet. Mr Fry had a cap light on his helmet, although this was not switched on. There were floodlights around and on the machine. He walked on the metal grate landing to clean the windows. 6. As Mr Fry rounded a corner to clean the front windows, he was momentarily blinded by the lights on the vehicle. He did not suspect a missing grate, did not see it, stepped forward and fell about a metre. In the fall, his right hip and right shoulder were significantly bruised, and his watch was knocked off from his forearm. When he extricated himself, he called for assistance, and was collected. He did no further work that shift, although whether that was due to his injuries, the shift being cancelled because of the rain, or both, was unclear. 7. The next day, Mr Fry attended upon his general practitioner, Dr Jeff Regnis, who noted injuries to his right shoulder, right hip and right shin. Mr Fry did not take time off but attended to work at his next shift. 8. A WorkCover medical certificate dated 19 November 2015 confirmed that Mr Fry was fit for normal duties without restriction. Apart from about two and a half weeks some three years later in November 2018 - whilst Mr Fry underwent two assessments to ensure he was fit for work after his statement of claim alleging substantial disability was served on Ravensworth - Mr Fry has worked continuously to the present day, and has been fully paid to date for his employment. The history of his medical consultations and treatments will be dealt with later in this judgment. 4. BREACH OF DUTY 1. It was not in contest that Ravensworth had a duty to provide a safe system of work. The first issue is whether that duty was breached. 2. Ravensworth had a system of pre-use inspections, reporting and maintenance. However, the only system available on the evening of 22 October 2015 to protect Mr Fry from the risk of harm from the missing metal grate flooring was the pre-use inspection and safety check Mr Fry was required to undertake. Similar inspections were undertaken in August and September 2015. Those inspections had identified the danger of the missing flooring grate. 3. If an inspection that identified a risk of harm was sufficient to remove the risk of harm, it might be supposed that Ravensworth had a system of inspection that was sufficient to discharge its duty of care. But of course an inspection only reveals a danger, it does not remove it. The purpose of revealing the danger is to enable work to be done to remove the danger; that is really the important point of undertaking the inspection. It is why Ravensworth had a system, after an inspection identified a defect, of reporting the defect and assigning its repair. 4. In the case of the missing grate on the Caterpillar front end loader, the repair was assigned to be done by 30 September 2015. The repair work was not undertaken. The failure to do so was unexplained. A system of reporting hazards and assigning works to repair hazards is insufficient to protect reasonably against the hazard if there is no system to ensure that the hazard is removed, such as by repair. 5. In my view, Ravensworth's failure to repair the hazardous missing grate without explanation or have evidence of a reasonable system of repair, constitutes a breach of duty. 6. Accordingly, a system of identifying a hazard is not sufficient to discharge the duty of care in this case. 7. Although Mr Fry has the onus of proving a breach of duty, he has discharged this onus by establishing the existence of a hazard known to Ravensworth which was not the subject of a warning, repair or barricade. The system must also comprise a means of remedying the defect, a warning or a barricade if that has not occurred. 8. Ravensworth argued that the machine was in use "around the clock". Strictly, that could not be so as there were scheduled occasions for maintenance. And it must be the case that time could be taken to remedy defects and hazards. The assertion of fairly constant use of the front end loader is not evidence of an explanation for why the danger was not remedied. 9. Ravensworth also argued that the pre-use routine inspection precluded the missing grille being a dangerous hazard. Evidently it did not have that consequence in this case. Plainly, even knowledge of the missing grille is insufficient to remove the danger since it does not protect against momentary inadvertence of the operator in using that part of the gangway. 10. Accordingly, I find a breach of duty established. 5. CONTRIBUTORY NEGLIGENCE 1. Ravensworth asserts that Mr Fry was guilty of contributory negligence in failing to take care in carrying out the pre-use inspection. I accept that a purpose of the pre-use inspection was to identify dangers or defects like the missing gangway grille. Mr Fry did not see the missing grille before he stepped into the hole resulting from its absence. He attributes this to being blinded by the floodlights on the machine as he stepped around to clean the front windscreen. Mr Fry argued that his action was momentary inattention that is insufficient to constitute contributory negligence. 2. Ravensworth referred to Mr Fry's cap light which was not switched on. It also referred to the ambient light that might be expected at about 7.15pm on 22 October when daylight saving time is operative. Neither of these matters is significant because Mr Fry's failure to notice the missing grate was not attributed to the darkness or insufficient light, but to being blinded by machine lights that were switched on. Mr Fry could have turned the lights off, Ravensworth asserted, but there was no evidence of where the relevant switch was located and moving to do that whilst momentarily blinded may have been just as risky as the step that Mr Fry took that lead to his fall. 3. Ravensworth asserted that Mr Fry could have waited until his eyes adjusted rather than step out without visually ensuring that it was safe to do so. In circumstances where Mr Fry was carrying out a safety inspection, I think this submission has force. In this event, Mr Fry's action was not simply momentary inadvertence. He recognised he was blinded, and yet proceeded to continue his journey along the gangway. It was not that he had failed to look where he was walking but rather he knew that looking was of no assistance, because momentarily he could not see. To consciously step into the unknown when blinded, is to proceed knowing there is some risk. There was no good reason why Mr Fry could not have waited until his eyes adjusted. Safety moving forward had not been established. 4. Mr Fry's failure to ensure he was safe to move forward, in a case where he was doing a safety inspection, was a failure to have sufficient regard for his own safety and should be regarded as contributory negligence. 5. As to the proportion of Mr Fry's damages that he should bear, Ravensworth accepted that it could not be more than 20 to 25%, whereas Mr Fry asserted it should only be 5 to 10%. 6. The appropriate amount of contribution is that which is "just and equitable having regard to the extent of that person's responsibility for the damage". [1] This: "involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man…and of the relative importance of the acts of the parties in causing the damage". [2] 1. As to the first aspect, Ravensworth has largely, if not wholly, created this risk, by failing to repair the gangway floor, by failing to prevent access to that area of the gangway, failing to warn Mr Fry of the risk, and by assigning Mr Fry to work on a hazardous machine. Given that Ravensworth had knowledge of the hazard by reason of the reports and planned repair, I regard Ravensworth's degree of departure from the reasonable standard as substantial, inexcusable and having a high degree of culpability. 2. Mr Fry's decision to proceed along the gangway whilst momentarily blinded is minor, not unusual and, in my view, only warranting a finding of contributory negligence because it was in the course of a safety inspection. It carried a low degree of culpability. 3. As to the second aspect, causal potency, the acts of both Ravensworth and Mr Fry were important in causing the damage. But Ravensworth, in allowing the hole to remain, created a hazard which would seem likely to render significant injury inevitable sooner or later. Mr Fry's action would commonly not cause any injury. He did not create the danger although, by his actions, he may have avoided it. Mr Fry bears some responsibility for the damage by walking along the gangway whilst he was unable visually to check that it was safe to do so. But that responsibility is small. 4. I think a proportion of 10% fairly represents Mr Fry's responsibility for the damage and his just and equitable level of contribution. [3] 6. PERCENTAGE OF A MOST EXTREME CASE 1. Prior to the fall, Mr Fry had suffered significant injuries to his left leg in 1978 resulting in six months off work, to his knee in 2009 resulting in three weeks off work, and also had time off work for a lower back injury in 2013 and 2014. He also had a whiplash injury in 2014 and related neck difficulties, and a right hamstring injury that same year. 2. Section 151E(1) of the Workers Compensation Act 1987, as applicable, contemplates an award of damages being available for an injury caused by the negligence of Ravensworth. Damages for Mr Fry's non-economic loss must be awarded in accordance with s 151G. [4] 3. Section 151G(2) provides that: "The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded". 1. The parties agree that the maximum amount of non-economic loss is $411,275, to be awarded "only in a most extreme case". [5] Thus, the Court must determine the proportion which Mr Fry's non-economic loss damage bears to a most extreme case. 2. Mr Fry accepted that he has, apart from a short two to three-week period in November 2018 when his condition was being assessed, continued to work the same hours and the same 12.5-hour shifts day and night since the incident as he had prior to the incident. His duties have changed in that he now works mainly on the water cart, whereas that was a relatively small proportion of his total work prior to the incident. 3. In cross-examination, Mr Fry gave evidence that he commenced working on the water cart from the date of the incident. He had made no earlier reference to this change of duties, neither in his evidence nor in his accounts to doctors. 4. However, in a chronology, the accuracy of which Mr Fry verified in oral evidence, he recorded that he "commenced performing full duties as the water cart operator" on 20 November 2018. There was no prior reference to the water cart in his chronology. Mr Fry also gave evidence that his injuries worsened over time. 5. The medical evidence recorded that Mr Fry was doing "full duties at work". [6] A return to work evaluation on 31 October 2018 records that he "is currently working full time pre-injury duties as a Production Operator". Mr Fry is recorded to have, after the incident, complained not of operating the front end loader, but of the occasion of training another operator on it, a duty which required him to sit on the less comfortable seat. 6. All these matters lead me to find that Mr Fry's duties over time changed so that they now largely consist of operating the water cart. I do not accept that a substantial change in duties occurred immediately or shortly after the fall. 7. Mr Fry gave evidence that he did less domestically nowadays, and no longer went on long coastal walks with his wife. Yet in October 2016 he reported to Dr David Dewar that "the pain is better with walking". [7] 8. Mr Fry's primary concern with his lessening domestic capacity is that he is unable to polish his car. Currently, on the days he is not working, he rises early, around 4.30am, and then swims and does hydrotherapy exercises for some hours at the pool. He finds that these activities alleviate his pain. He disavowed any claim for past and present domestic assistance, but maintained a claim for future assistance. 9. Mr Fry's activities have changed over time since the accident, as have his work duties. He is still engaged in exercise to keep fit, which he evidently enjoys. I am not persuaded that the change in the nature of his work or personal activities contributes substantially to damages for non-economic loss. 10. Mr Fry argued that the primary component of his non-economic loss was his constant pain from his hip and shoulder problems. His absence of movements in the witness box did not indicate constant pain, but that may be because he took some painkillers beforehand. Mr Fry accepted that he went periods without taking painkillers, but his account of worsening pain since the accident, especially in his hips, requires some exploration of his hip and shoulder pathology. 11. Mr Fry initially could not recall any problems with his hip or any treatment to his hip prior to his fall. 12. Although I must be cautious in placing reliance on doctors' notes to controvert a witness' testimony, [8] Mr Fry was asked about the medical notes and generally accepted their accuracy. When directly asked about the contents of medical notes, he gave no evidence recalling that his condition, at the time of any note, was contrary to that recorded. 13. Mr Fry was treated by an acupuncturist named Fong both before and after his fall, including for his hips. Documentary evidence from Mr Fong showed that Mr Fry had been receiving treatment, including for his hips, in 2015 in March, April, May, August, September and multiple times in October, before and after the incident, as well as three times in November, once in December and once in April 2016. Mr Fry accepted that this treatment occurred, although he did not recall treatment on his hips. 14. Records from the Singleton Medical Centre also evidenced that Mr Fry had complained of sore hips in 2011. [9] Mr Fry accepted the accuracy of Dr Develach's notes that this complaint had occurred. 15. Mr Fry did not accept that he walked freely after the fall, but with some reluctance conceded that he drove home and returned to work the next day. He did not dispute the medical records of his recovery after the incident, including that he made no complaint of hip problems in the three months after his initial visit, although he attended his GP on five or six occasions. He accepted that his hip was "probably not" troubling him. 16. Mr Fry attended upon his GP, Dr Jeff Regnis, on the day following the incident, and made reference to his right hip and right shoulder being grazed. He was prescribed Temaze, a drug that assists sleeping, and Tramadol, an opioid analgesic. 17. Mr Fry visited Dr Regnis three weeks after the fall, on 12 November 2015. The notes recorded that Mr Fry "recovered well from injury", but there was a complaint of right-hand numbness, but no reference to the hip. An X-ray of the shoulder was ordered. No complaint or issue with Mr Fry's hip was mentioned in the notes reporting subsequent visits on 4 December 2015, 14 December 2015, 15 December 2015 and 12 January 2016, although reference to shoulder pain was repeatedly mentioned. 18. On 29 January 2016 a complaint about the hip is mentioned for the first time since the day after the accident. The prescription for Tramadol was continued. 19. The contemporaneous reports of Dr Regnis to the insurer in respect of the earlier visits are to the same effect as his brief notes in Mr Fry's medical file. 20. Mr Fry had a MRI on his right hip on 9 September 2016, a little under a year after the fall. The report by Dr Josey recorded: "History: Ongoing right hip pain after workplace accident. Findings: A degenerative arthrosis is present at the right hip, characterised by full thickness chondral fissuring, juxtacortical sclerosis and oedema. In addition, the labrum is degenerate with extensive mucinous degeneration throughout the labral substance and the presence of small ganglia measuring 2-3mm in size present at the chondrolabral junction posteriorly. No evidence of fracture of the acetabulum. The femoral head is within normal limits, no avascular necrosis or stress fracture. The gluteus minimus and medius tendons are within normal limits. The periarticular tissues are normal. No injury of the superior or inferior pubic rami. No mass lesions within the limited views of the pelvis. IMPRESSION: * A relatively severe degenerative arthrosis is present at the right hip, characterised by juxtacortical sclerosis, intraosseous ganglion development and extensive degenerative change of the labrum. However, no MRI evidence of acute fracture of a vascular necrosis of the femoral head. * No fracture of the femoral neck or injury of the periarticular musculature or ligament. Dr Lawrence Josey." [10] 1. Dr Regnis referred Mr Fry to Dr Stuart MacKenzie, orthopaedic surgeon, on 29 September 2016. Dr MacKenzie then reported that Mr Fry: "has been having trouble with his right hip since he had quite a severe fall on a machine at work 12 months ago. He suffered severe bruising around the hip at the time and has had ongoing pain ever since. Prior to this fall, he was not having any problems in his hip whatsoever." [11] 1. Dr MacKenzie's history of Mr Fry having no prior hip problems and "ongoing pain ever since" the fall is both inconsistent with the contemporaneous medical reports and Mr Fry's concession in the witness box, and tend to diminish the value of Dr MacKenzie's conclusion that Mr Fry's symptoms of arthritis were "triggered by the fall". [12] 2. Mr Fry in October 2016 was also referred by Dr Regnis to Dr Dewar, another orthopaedic surgeon. Dr Dewar reported that Mr Fry: "came in with a picture of him standing next to his front end loader and he showed me how and where he fell. Apparently 12 months ago, as per his report, he fell while cleaning the front end loader and he hit the loader on the way down. He hurt his shoulder and his hip. He tells me the lateral aspect of his hip swelled and became black and was quite painful. He didn't have any imaging at the time and he saw the physiotherapist who predominantly worked on his shoulder. He tells me that his shoulder has improved significantly since that time. He now has deep seated groin pain as well as buttock pain." [13] 1. Dr Dewar did not express any opinion of the cause of Mr Fry's hip pain, and gave him a cortisone injection the following day. Dr Dewar reported in December 2016 that Mr Fry gained "great benefit from his Cortisone injection". [14] 2. Mr Fry appears not to have consulted his treating surgeons since 2016. An X-ray in mid-2018 reported: "XRAY RIGHT HIP AND PELVIS Details: Right hip pain. Findings: Only minor loss of joint space of the right hip as well as subchondral sclerosis but no other appearances suggestive of significant degenerative-type change or other arthropathy. Appearance of the right hip is also similar to the left hip on the AP view of the pelvis. No other focal bony abnormality can be identified of the right hip or of the pelvis. There is an unremarkable appearance of the SI joints and pubic symphysis. ULTRASOUND RIGHT HIP Findings: There is no anterior right hip joint effusion although there is mild thickening of the capsule of the hip. There is a partial thickness tear of the gluteus medius tendon measuring up to 8mm. There is no further tear of the gluteal tendons or evidence of tendinopathy and there is also no thickening of the trochanteric bursa or obvious tenderness on probe compression over the trochanteric bursal region. No other soft tissue abnormality. Overall Impression: Likely partial thickness tear of the gluteus medius tendon but there is no obvious feature suggestive of trochanteric bursitis and apart from a little thickening of the capsule of the hip joint noted anteriorly, no other soft tissue abnormality has been demonstrated. An injection was not performed on Mr Fry." [15] 1. I did not understand Mr Fry to be claiming that the "partial thickness tear" reported in his right hip in mid-2018 was attributable to his fall in October 2015. His pleadings and particulars, as well as his expert medical reports, claimed an aggravation of pre-existing arthritis. The impact of the tear at the time on Mr Fry's symptoms remained unexplored in the evidence and submissions. 2. Mr Fry was recorded in a work assessment on 31 October 2018 to have recorded his pain levels as: "∙ Right Hip: 5/10 ∙ Right shoulder: 5/10 … ∙ Right side of neck: 7/10". [16] 1. Thus, the primary cause of pain to Mr Fry in 2018 appeared to be from pain in the neck. Mr Fry also made reference to this pain during the trial, but Mr Fry did not assert at the trial or in his pleadings that his neck pain was attributable to the fall. 2. The report resulting from Mr Fry's assessments in November 2018 recorded that: "Mr Fry reports currently experiencing a constant throb in his right shoulder, numbness in the thumb, index and middle fingers of the right hand. When waking in the morning, stiffness and discomfort with neck rotation to the right, a constant dull ache in the right hip, a constant ache in the right elbow, an occasional sharp pain in the right wrist and an occasional dull ache on the lateral side of the right knee. Mr Fry reported a pain level of 2/10 at the time of the assessment and during the assessment however noted on a bad day a pain level of up to 7-8/10… Mr Fry advised that the takes medication and uses a range of creams and supplements to manage his symptoms". 1. The plaintiff's medico-legal experts included Dr James Bodel. Dr Bodel recorded that "[o]ver time the right hip seemed to improve but then later it deteriorated" when speaking about the period after the fall and said that the initial main concern was the shoulder. [17] This history shows some consistency with Dr Regnis' notes, although they were apparently not then available to Dr Bodel. Presumably, the quoted note above was the account given by Mr Fry. 2. Dr Bodel concluded that Mr Fry had "aggravated some previously asymptomatic degenerative change in the region of the right hip". [18] 3. Dr Neil McGill, a rheumatologist retained by Ravensworth, reported on 20 February 2019: "The described fall would not have caused his osteoarthritis but could have caused an aggravation. If the fall caused an aggravation with the potential to continue to influence symptoms, I would expect him to have had substantial pain in the right hip region in the three months following the fall. Based on the history he provided, that was the case. The medical notes between the fall on 22 October 2015 and September 2016 were not available." [19] 1. When the notes became available, Dr McGill prepared a further report referring to the error in his earlier conclusion. He stated: "The notes from his general practice however indicate that [substantial pain the hip region in the three months following the fall] was not the situation. It was recorded that he experienced grazing over the lateral aspect of his right hip but, despite many attendances, there was no further mention of hip symptoms until 28 January 2016. In light of the information provided from the contemporaneous notes, I think it is most likely that the fall on 22 October 2015 caused grazing of the skin and bruising of the subcutaneous tissue over the lateral aspect of the right hip and possibly temporary symptoms related to his pre-existing hip osteoarthritis. Combining the nature of the fall, the symptoms and clinical findings immediately following the fall, and the documentation over the next months, it is unlikely that the fall changed the pathology of his hip osteoarthritis and unlikely that the fall influenced his hip symptoms from January 2016 onwards. Thus, based on the further documentation, there has been a change in my opinion. I now do not think that the fall on 22 October 2015 continues to aggravate his pre-existing right hip osteoarthritis." [20] 1. In resolving the issue concerning the impact of the fall on Mr Fry's hip concerns, I note the following matters. 2. First, prior to the incident, Mr Fry had complained of hip problems to Dr Develach and had had treatment for his hips from Mr Fong, the acupuncturist, but there is no record of hip complaints to Dr Regnis prior to the fall. 3. Secondly, Mr Fry did not complain of hip pain from the day after the fall for more than three months, even though he attended his GP five or six times and complained of shoulder pain. 4. Thirdly, Dr Bodel notes that Mr Fry's hip issue appeared to improve after the fall. 5. Fourthly, Dr MacKenzie links the hip pain to the fall but relies upon there being no hip complaint prior to the fall and significant pain continuing in the period immediately after the fall, neither of which represents the correct history. Dr Dewar gives no opinion on causation. 6. Fifthly, Dr McGill accepted that the fall had caused an aggravation of hip arthritis pain if there was substantial pain the three months following the fall, but after the records revealed no complaints in that period, he concluded that it was "unlikely that the fall changed the pathology of his hip arthritis". 7. Sixthly, Mr Fry was reviewed by an orthopedic surgeon retained by Ravensworth but Ravensworth did not serve any report. 8. Taking all these matters into account, on balance I accept the conclusions of Dr McGill that the present symptoms are not due to any aggravation by the fall of Mr Fry's pre-existing arthritis. I prefer those conclusions to those of Dr Bodel, who gave no explanation as to how the fall could cause a permanent aggravation of the hip osteoarthritis in circumstances where Mr Fry for three months felt no pain sufficient to complain, but rather found his hip to be improving. 9. Once the hip pain Mr Fry now suffers is not properly attributable to the incident, Mr Fry's claim is left largely with his shoulder pain. He regarded this as less significant than his hip pain, and the assessment report noted it to be less significant than his neck pain. 10. Dr Bodel reported that Mr Fry found the injection of cortisone to be helpful in respect of his shoulder and in 2018 "the right shoulder has not deteriorated too much" since the injection in December 2015. [21] Mr Fry has continued swimming. He told Dr Dewar in October 2016 that "his shoulder has improved significantly" since having some physiotherapy after the incident. [22] He has some restriction of movement and mild impingement but no instability. He accepted that he did not like taking painkilling medication and did not take it continuously. 11. In these circumstances, I am left to assess the value of Mr Fry's non-economic loss, comprising largely of pain in his right shoulder, but noting neck and hip pain which are accepted to be, or I have found them to be, unrelated to the incident. 12. I am not persuaded that the limited disability and pain that Mr Fry has experienced in his right shoulder, together with the immediate aftermath of the fall and its injuries, including the temporary aggravation of the right hip arthritis, reaches $72,577 in damages or 17.5% of the $411,275 damages awarded for a most serious case. In that event, no non-economic loss damages can be awarded. 7. OTHER DAMAGES 1. I propose to make some brief comments about some other items of damage claimed should they ever fall to be assessed. 2. In the event that Mr Fry's current hip problems were attributable to the fall contrary to my findings, bearing in mind his age, his continued ability to work, and the relatively small impact on his lifestyle, apart from the pain that he continues to suffer, I would assess his damages at 22% of a most serious case. While this would result in an award of damages for non-economic loss, no other heads of damage would be available. 3. In the event that Mr Fry's damages were assessed at 25% of a most extreme case, I would need to consider other aspects of Mr Fry's claim. 4. The parties have agreed on the amount of past medical expenses of $16,000.73, most of which has been paid by the Workers Compensation insurer. 5. Mr Fry's claim for future medical treatment is based largely upon a need for hip replacement surgery, and also a claim for future pain relief medication. Mr Fry has resisted in the past and seems reluctant in the future to have hip surgery, although there must be some prospect that as his problems worsen he will undertake the operation. The cost is $40,000. No treating doctor has given an opinion about his need since 2016. However, on balance, I think that a right hip operation will be undertaken and doing the best I can, I find that it would occur in approximately eight years. If otherwise entitled, Mr Fry should be awarded the present day value of this. 6. As to other future medicals, Mr Fry's expenses of approximately $16,000 in the nearly four years since the incident provide some guide as to the amount of likely future medical expenses. It was submitted, without challenge, that a significant part of this amount is in respect of opinions, including in respect of his hip. I would allow a further $8,000 for future medicals in addition to the amount for the hip operation if Mr Fry was otherwise entitled. 7. In respect of economic loss, Mr Fry has suffered none to date. He reported to Dr Dewar in 2016 that he intended to retire at 60, which will occur at the end of next year, by which time he would have completed 40 years in the mining industry, a matter then apparently of some importance to him. 8. Through Dr Bodel, Mr Fry indicated in 2018 that he is keen to work until 62 and again made reference to 40 years' mining industry employment. There is, in my view, no real indication that Mr Fry will be unable to work until then. 9. In evidence, Mr Fry indicated a desire to help his children financially which may cause him to stay in the workforce longer. There is, in my view, at least some prospect that he would not be able to work full-time until 67, the age he suggested in the witness box. Further, were Mr Fry to work to that age, there is at least a prospect that the hip operation would be undertaken at some stage before he retired. If Mr Fry were otherwise entitled to an award for future economic loss due to his hip complaints, I would be minded to allow a buffer of $40,000 bearing in mind that he earns approximately $1,900 net per week. 10. Finally, Mr Fry made a claim for future domestic assistance although Mrs Fry, who is now retired as a school teacher, gave evidence that she does two hours additional work for Mr Fry each week since the accident. I was not persuaded that it was due to any inability on Mr Fry's part. Mrs Fry did not claim to polish his car, the only matter Mr Fry specifically referred to as a matter he was unable to do. 11. Further, any inability of Mr Fry to do domestic tasks due to his pain must factor in the unrelated neck pain of which Mr Fry complains. Mr Fry's ability to perform a 12-hour shift of demanding work persuades me that he does not presently lack, as he accepts, an ability presently to do domestic tasks. Nor am I persuaded that any inability arose by reason of the fall he suffered in 2015. He would, however, be entitled to some assistance for the three months whilst recovering from the hip operation if that were found to be attributable to the fall. 8. CONCLUSION 1. Because I am not satisfied that the osteoarthritic hip pain now suffered by Mr Fry was caused by his fall, his severity of non-economic loss does not reach 17.5% of a most extreme case, and so no damages can be awarded to him. 9. COSTS 1. As to costs, the defendant would ordinarily be entitled to the costs by reason of success in the proceedings, although there could conceivably be an argument that a less favourable order should be made, by reason of the plaintiff's success on the liability issue. The parties have requested that I reserve the question of costs. 10. ORDERS 1. Accordingly, the orders of the Court are: 1. Judgment for the defendant. 2. Costs reserved. ********** Endnotes 1. S 5(2), Law Reform (Miscellaneous Provisions) Act 1946. 2. Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10], see also Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 at [41]. 3. C.f. Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232 at [90]-[97], South 32 Ltd v Allfab Constructions Pty Ltd [2019] NSWCA 132. 4. See ss 151E(1) and 151F. 5. S 151G(3). 6. Exhibit B, p 22. 7. Exhibit B, p 26, but see endnote 8 to [45] herein. 8. See Mason v Demasi [2009] NSWCA 227 at [2]. 9. Exhibit 4, 2/6/11. 10. Exhibit B, p 18. 11. Exhibit B, p 21. 12. Exhibit B, p 22. 13. Exhibit B, p 26. 14. Exhibit B, p 29. 15. Exhibit B, p 56. 16. Exhibit B, p 80. 17. Exhibit B, p 3. 18. Exhibit B, p 6. 19. Exhibit 1, 20/2/19, p 7 of 7. 20. Exhibit 1, 28/8/19, p 3 of 3. 21. Exhibit B, p 3. 22. Exhibit B, p 26. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2019