Supreme Court New South Wales

• Medium Neutral Citation: Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13
• Hearing dates: 28, 29, 30, 31 October, 1 November 2013
• Decision date: 31 January 2014
• Before: Harrison J

Decision

1. Verdict for the plaintiff against the first defendant and the second defendant in amounts to be calculated in accordance with these reasons.

2. Declare that the amount of the respective contributions recoverable as between the defendants on the cross-claims joined between them as just and equitable having regard to the extent of their responsibility for the plaintiff's damage is 50 percent each.

3. Direct the parties to bring in short minutes of order giving effect to these reasons.

4. Grant liberty to apply.

• Catchwords: INDUSTRIAL ACCIDENT - negligence - personal injuries - where system of work required plaintiff to manoeuvre heavy jacks in confined spaces - repetitive heavy lifting - back injury - pre-existing degenerative spinal condition - whether breach of duty - CROSS-CLAIMS - concurrent wrongdoers - contribution between employer and co-contractor - CONTRIBUTORY NEGLIGENCE - whether plaintiff guilty of contributory negligence - LIMITATION OF ACTIONS - whether amended statement of claim filed in excess of three years of the date upon which plaintiff's cause of action against co-contractor discoverable
• Legislation Cited: Civil Liability Act 2002; Law Reform (Miscellaneous Provisions) Act 1946; Limitation Act 1969; Occupational Health and Safety Act 2000; Occupational Health and Safety Regulation 2001; Workers Compensation Act 1987
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111; Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454; Benic v State of New South Wales [2010] NSWSC 1039; Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111; Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126; State of New South Wales v Gillett [2012] NSWCA 83; Strasburger Enterprises Pty Limited t/as Quix Food Stores v Serna [2008] NSWCA 354; Wilson v Nilepac Pty Ltd [2011] NSWCA 63; Zanner v Zanner [2010] NSWCA 343
• Category: Principal judgment
• Parties: Robert Taboas (Plaintiff); Abigroup Contractors Pty Ltd (First Defendant); VSL Australia Pty Ltd (Second Defendant)
• Representation: Counsel: K C Fleming QC with P R Stockley (Plaintiff); D R Benson (First Defendant); R Gambi (Second Defendant); Solicitors: CMC Lawyers (Plaintiff); Bartier Perry (First Defendant); Wotton + Kearney (Second Defendant)
• File Number(s): 2011/171589
• Publication restriction: Nil

Judgment

1 HIS HONOUR: By his amended statement of claim filed on 13 February 2012, Robert Taboas claims damages for personal injuries and consequential losses suffered by him in the course of his employment with Abigroup Contractors Pty Ltd. Mr Taboas alleges that between approximately 6 June 2006 and 24 October 2006 he was employed by Abigroup as a carpenter at the Windsor Flood Evacuation Route Project. The nature and conditions of his employment were such that he was required to perform work involving repetitive lifting of heavy objects. As a result of this work he sustained a serious injury to his lumbar spine, which required surgery. He became in due course unable to attend to his pre-injury employment and claims damages for pain and suffering, loss of past and future wages, and out of pocket, medical and associated expenses as a result. The precise nature of these claims is referred to more fully later in these reasons.

2 It is not in contest that Abigroup owed Mr Taboas a non-delegable duty as his employer to take reasonable and proper care for his safety. Mr Taboas alleges that Abigroup breached that duty and was negligent in a number of ways. They include that he was not warned of the danger of carrying out repetitive work, was not trained in the proper or safe methods of performing his work and was not provided with suitable equipment or other assistance to carry out his work in safety. He also alleges that his complaints about the work went unheeded and that as a result he remained continually exposed to the danger associated with heavy lifting. Several other formulations of Abigroup's alleged breaches have been articulated. Abigroup denies that it breached its duty in any of the ways alleged or at all.

3 Mr Taboas also seeks damages from VSL Australia Pty Ltd. VSL was a civil engineering and construction consultant and contractor retained by Abigroup to perform specialised aspects of the work. Mr Taboas alleges that VSL directed and supervised him during the course of his work and that it became liable for breaches of a duty that it also owed to him to take reasonable and proper care for his safety. VSL has denied any such breaches but has contended in any event that Mr Taboas is guilty of negligently contributing to his own loss and damage by failing to take proper care for his own safety, by failing to follow instructions or by failing to follow proper procedure. VSL also contends that Abigroup's negligence caused or contributed to Mr Taboas' loss and damage so that any damages that he might in due course recover from them should be accordingly reduced in accordance with s 151Z(2)(c) of the Workers Compensation Act 1987. VSL adopts for all practical purposes the allegations of negligence pleaded against Abigroup by Mr Taboas.

4 Mr Taboas has also pleaded a case against the defendants based on alleged breaches of nominated statutory and regulatory provisions concerned with industrial safety. Mr Taboas did not contend that either defendant had breached a statutory duty. The provisions were simply drawn upon by analogy and as convenient statements of standards with which Mr Taboas argued the defendants should in any event have complied.

5 When the proceedings were originally commenced against Abigroup they were out of time. That deficiency was the subject of a contested application that was ultimately determined favourably to Mr Taboas. It therefore no longer remains an issue between them. On the contrary, VSL has pleaded that Mr Taboas' claim against it was out of time and is defeated by operation of s 50C of the Limitation Act 1969, as the second amended statement of claim was allegedly filed in excess of three years of the date upon which Mr Taboas' cause of action against VSL was discoverable. That question remains in issue for determination by me.

6 Finally, Abigroup and VSL have filed cross-claims against each other. Abigroup claims contribution from VSL pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 as well as an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act in respect of payments of workers compensation made by it to Mr Taboas. VSL in turn seeks indemnity or contribution from Abigroup pursuant to s 5.

Background

7 Mr Taboas was born in Australia and attended Greystanes High School until mid-way through Year 11. He then attended Granville TAFE where he qualified as a carpenter. He had a series of jobs before joining Abigroup in January 2004.

8 His first job with Abigroup was on the construction of the M7 motorway, which was a joint venture with Leighton Contractors. Mr Taboas worked there for two and a half years as a leading hand on the fabrication of precast concrete segments. When that job finished he was employed by Leighton as a leading hand carpenter on the construction of road works at Westmead.

9 In 2006 Mr Taboas recommenced working for Abigroup as a leading hand concerned with the manufacture of several hundred precast concrete structural bridge segments for the Windsor project. That work was performed offsite at Eastern Creek. Upon completion of that work Mr Taboas and two others were given fresh contracts of employment with Abigroup to work onsite for the actual construction of the Windsor job. Mr Taboas was employed on that job as a labourer.

10 The project involved the construction of a segmental span supporting a two-lane motor vehicle bridge across the South Creek at Windsor. The method of construction adopted involved the initial erection of supporting columns in sequence across the creek. The prefabricated segments were then transported from Eastern Creek and placed into position with a heavy-duty crane. Each segment was approximately 2.5 metres broad and as wide as the roadway and designed to lock into the adjacent segments. As many as 25 of these segments would combine to form an entire span between the columns. Before the spans were finally manipulated into position and locked, they were temporarily supported by steel beams attached to the columns. They were supported at this time by a series of small jacks known as trolley jacks attached to the steel beams. These trolley jacks did not require manual handling.

11 Post-tensioning cables were then run through conduits inserted into pre-formed holes in the segments, and then secured at each end with anchor heads. It took approximately one full day to secure the cables in this way. The cables were then tensioned using hydraulic stressing jacks. Once the tensioning process was complete, the steel beams would be launched to the following column to begin the process afresh in order to construct the next span. Span jacks would be used to raise the level of the completed and tensioned section so that the steel beams could be moved forward to the next span.

12 With the removal of the steel beams from a column, the process of span alignment would begin. This was work in which Mr Taboas was involved. It was carried out with the assistance of one other person and took about one day to complete. Once completed, the span jacks were locked using a locking ring and left in place ready for bearing pads to be grouted in position. The span jacks had to remain in that position until the bearings were fully grouted and had set. Only then could the jacks be released and the weight of the span allowed to rest on the bearings.

13 Mr Taboas was directly concerned with the placement and removal of these span jacks from atop the columns. Each span jack weighed approximately 112kgs. Span jacks consisted of two hydraulic cylinders placed side by side. They did not have handles for lifting or moving, or any other convenient attachment to assist with those tasks. One person could not lift a single jack without assistance.

14 The span jacks had to be raised or elevated from ground level to the top of the columns. A cherry picker was used for this purpose. A metal plate bolted to the cage of the cherry picker was used as a supporting platform for the span jacks. When the cherry picker was elevated Mr Taboas would stand alongside the span jack inside the cage holding it in order to ensure that it did not move. The combined weight of Mr Taboas and the span jack would cause the cherry picker to tilt to one side. Once the cherry picker reached the required height it became Mr Taboas' task to manoeuvre it off the metal plate and onto the top of the column. This was usually a distance of about 75cm. That was a difficult exercise due to the weight of the span jack and the awkward relationship between it and Mr Taboas' position in the cherry picker cage. In addition, when the weight of the span jack was transferred from the cherry picker to the column, the cherry picker would rise up anything from 10cm to 15cm.

15 However, manipulating the span jack in this way was not the most difficult part of the job. Once the span jack was on the column it had to be positioned on the base plate. The base plate was approximately 3cm high. It therefore became necessary both to push and tilt the span jack in order to position it correctly. Due to the limited space on top of the column and beneath the underside of the span segments, Mr Taboas was required to lie on his stomach in a confined space in an effort to coax the span jack onto the base plate. There were a total of four sets of span jacks for each span, and the same process had to be repeated each time. Removal of the span jacks involved performing the same process in reverse.

16 When the span jacks had been lowered to ground level, Mr Taboas and his co-worker had to transport them to the next column, where the process would be repeated. Sometimes they were transported using the cherry picker. On other occasions they would be taken in the back of a utility. When that happened Mr Taboas and his co-worker would have to lift the span jacks by hand from the platform on the cherry picker onto the bed of the utility or from the ground into the utility. On other occasions the span jacks would have to be lifted from the ground up onto the platform.

17 Occasionally the hydraulic seals of the span jacks would fail due to overloading. This created three problems. Hydraulic fluid would contaminate the work area, which added to the difficulty of handling the jacks. The failed jacks would have to be replaced, thereby increasing the workload. It also led to a shortage of jacks from time to time.

Mr Taboas is injured

18 Mr Taboas gave evidence that while he was performing the duties just described, he noticed the onset of pain in his left leg that developed over a period of about one week. He initially noticed the pain at work. He continued with his duties but mentioned to his supervisor Ali Cetindag, who worked for VSL, that he was getting pain in his leg. Mr Cetindag told him to let him know if the pain got worse. Mr Taboas eventually consulted his general practitioner at a medical centre at Baulkham Hills. He was advised that it sounded like sciatica but the doctor gave him no treatment and performed no diagnostic tests.

19 On about 24 October 2006, Mr Taboas reported his condition to Abigroup, who referred him to Dr Hadfield at Windsor. He was in turn referred for a CT scan of his lumbar spine. Upon the basis of what was revealed, Mr Taboas was given medical certificates certifying him fit only for light duties. He was also referred to a physiotherapist and to Dr Nair, a neurosurgeon. He was prescribed analgaesics and anti-inflammatory medication for pain management. During this time Mr Taboas also developed low back pain that commenced after the original onset of pain in his left leg.

20 Mr Taboas initially consulted Dr Nair on 15 November 2006. He reviewed the CT scan and referred Mr Taboas for a nerve block. Mr Taboas underwent this procedure at Nepean Private Hospital on 22 November 2006. There was no improvement following the nerve block and Dr Nair recommended that Mr Taboas undergo a left L4/5 microdiscectomy. That took place at the same hospital on 6 December 2006. He was discharged after three days and referred for physiotherapy. Post operatively Mr Taboas' leg pain improved significantly. There was no change to his back pain.

21 Mr Taboas recommenced work on light duties at the beginning of January 2007. His hours were not reduced. As his workload increased, the low back pain and sciatica also increased. The same pattern of symptoms persisted throughout 2007. Mr Taboas continued to consult Dr Hadfield. In due course he returned to the care of Dr Nair. He was advised in the light of his continuing symptoms to find less physically demanding work.

Subsequent events

22 Mr Taboas left Abigroup in April or May 2007. He had obtained work with Interprojects Pty Ltd as a supervisor doing refurbishments and fit-outs. His work did not call for any physical labouring, lifting, bending or similar tasks. Despite the nature of this work, Mr Taboas continued to have symptoms in his low back and left leg making it difficult to perform even this work. This work ceased when Interprojects went into liquidation in October 2008. Mr Taboas then sought similar work elsewhere without success.

23 Mr Taboas remained unemployed between October 2008 and February 2009 when he obtained work as a supervisor with Arenco in the civil construction industry. He was earning $1,280 per week. His usual duties were to supervise, assist in the co-ordination of trades and manage safety and construction programs. This work involved no physical labour. However, by the end of 2009 Mr Taboas found it difficult to manage this work as a result of his continuing back and leg pain. He persisted notwithstanding. When Arenco ran into financial difficulties all work stopped but Mr Taboas was retained to manage the site. He was able to do this.

24 In early 2011 Arenco's project resumed. Despite difficulties, Mr Taboas continued working until September 2011 when he commenced looking for alternative employment. An opportunity for him arose with Leighton Contractors in October 2011 as a foreman supervising civil works. He ceased work with Arenco on 22 December 2011 and commenced working for Leighton Contractors on 27 January 2012. That job paid $1,600 net per week and a company car was provided. He worked six days per week, 12 hours or more per day. His duties were to supervise and co-ordinate trades. This required Mr Taboas to walk in excavations, on scaffolds and steel structures, ensuring that safety procedures and guidelines were followed. He also had administrative duties. Mr Taboas said that he found all of these tasks extremely difficult.

25 Mr Taboas found that after a few weeks of this work he was unable to control his back pain. He was taking large amounts of pain relief medication in order to keep working. On 13 April 2012 he resigned, as he was physically unable to cope. He ceased work two weeks later.

26 With the exception of a period of two weeks working for Arenco shortly thereafter, Mr Taboas has been unemployed since mid May 2012. His jobs with both Leighton Contractors and the short stint with Arenco required him to walk long distances around job sites, climbing on structures and scaffolding, as well as reading plans and drawings. These things remained difficult for him.

Post-employment developments

27 Before he was injured, Mr Taboas' take-home pay from his work with Abigroup was $1,350 net per week on average. It had been his intention to start his own business as a builder. He proposed to employ others as the work progressed. Mr Taboas has current qualifications and a builder's licence obtained from Granville TAFE where he commenced studies as an evening student when working for Abigroup, and which he later completed.

28 Mr Taboas does not currently feel able either physically or mentally to re-enter the workforce in any capacity as his pain is easily aggravated by excessive periods of sitting, standing and walking. He continues to require what he described as "significant amounts of medication to handle [his] pain." These include analgesics and anti-inflammatory medication. He currently takes Panadeine Forte (8 tablets per day), Voltaren 50mg (3 tablets per day) and an anti-depressant (3 tablets per day) every day. He is sometimes able to manage the pain with these doses of medication but he said that "sometimes the pain is still unbearable." He took Naprosyn constantly while still working for Abigroup, but later replaced that with the medications he now consumes daily.

29 In about August 2012 Mr Taboas' back pain got worse and he developed pain in his right leg. He underwent a further MRI scan on 24 August 2012 revealing what he called continuing "symptoms" in his lumbar spine. He has been advised that he remains a candidate for further surgery. He is currently on a waiting list at Westmead Hospital, although the precise nature of the anticipated surgery has not been specified.

30 Mr Taboas has said that he has not let his injury deter him. He continues to research and analyse careers that may be suitable for someone with his disability. He has looked into what is involved in becoming a building inspector but discarded this as a viable option as it involved work inconsistent with his capacities.

31 In March 2013 Mr Taboas enrolled in an OTEN TAFE distance-learning course in Pest Management Certificate 3. Mr Taboas does not consider that he could perform the duties required in that industry but has an interest in this field and wants to keep learning. At the end of May 2013 he enrolled in a one-day course in mould and asbestos identification.

32 Mr Taboas said that he has gained weight since "the accident" due to his reduced movement. He has difficulty playing soccer or tennis or exercising in the gym. He has difficulty lifting, bending, twisting, squatting, pushing, pulling, sitting for long periods, walking long distances, walking on uneven ground, driving long distances, using stairs and sleeping.

33 Mr Taboas also said that he now has difficulties at home with many tasks, including mowing the lawn, vacuuming, meal preparation, laundry, shopping and gardening, for which he requires assistance from his family as well as paid assistants. He has a person to mow his lawns every few weeks. He said that his personal hygiene and showering needs are difficult for him without assistance. Dressing likewise causes him problems, as does playing with his children. Mr Taboas' wife "manages the household and family needs and children and [it] is taking its toll on her." Mr Taboas' wife did not give evidence.

Limitation Act 1969

34 The sections that energise VSL's limitation defence are in the following relevant terms:

"50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the '3 year post discoverability limitation period', which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b)...

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is 'discoverable' by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person 'ought to know' of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) ..."

35 VSL made the following submissions.

36 The onus of establishing that the period of discoverability commenced on a date more than three years prior to the commencement of the proceedings rests with VSL: see State of New South Wales v Gillett [2012] NSWCA 83. Because of the way in which the evidence on this aspect of the case unfolded, s 50D(1)(b) remained the only provision requiring consideration. The question for determination therefore became whether Mr Taboas relevantly knew that his injury was caused by the fault of VSL. It is not necessary that someone in Mr Taboas' position should be able to articulate a cause of action for the purposes of s 50D(1)(b) of the Limitation Act. Rather, "the key factors necessary to establish legal liability" have to be known: see Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 at [39]; Gillett at [94]. Basten JA in Baker-Morrison at [41] considered that "a legal evaluative judgment appears to be required by par (b)".

37 In the present case, if Mr Taboas was, or ought to have been, aware of any defects or deficiencies in VSL's system of work, and the availability and practicality of an alternative system of work on or before the day that he filed the amended statement of claim, then he was or ought to have been aware of the fact that his injury was or may have been caused by VSL's fault. If such were the case, then by operation of the Limitation Act his cause of action is not maintainable. What VSL needs to establish for the purposes of "fault" in s 50D(1)(b) is that Mr Taboas knew that the matter was legally actionable: per Beazley JA in Gillett at [97]. As was pointed out by Basten JA in Baker-Morrison at [58], in most cases the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking "all reasonable steps" for the purposes of s 50D(2).

38 VSL summarised the relevant evidence touching this question as follows. Mr Taboas was aware that he had sustained a serious injury at least by December 2006. He was similarly aware that his injury was disabling. Mr Taboas agreed that he also knew that the heavy lifting and manoeuvring that he did at work caused his permanent incapacity.

39 Mr Taboas agreed that when he first consulted his current lawyers they discussed with him a possible claim for damages against Abigroup. When he first went to see his counsel with respect to suing anybody for his injury, he knew it was because the span jacks were just too heavy for two men to lift. He knew when he consulted his lawyers that fault arose from the fact that the system or process of work was not safe. In his own words, Mr Taboas said, "in my mind I thought the process was not safe".

40 Mr Taboas agreed that he knew that the system of work involved lifting jacks that were too heavy. He also knew that the system was wrong and should have been safer. Mr Taboas conceded that he also knew that whoever was responsible for making the system of work unsafe should be paying damages to him. He knew that Mr Cetindag was his supervisor and that he worked for VSL. He knew that it was Mr Cetindag who directed him to do the span work. Mr Taboas gave this evidence in cross-examination:

"Q. But you knew at all times, didn't you, that your supervisor was Ali?

A. Yes, I did, yeah.

Q. You knew Ali was employed by VSL?

A. Yes, I did.

Q. And it was Ali who directed you to do the span jack work, is that right?

A. I did, yeah.

Q. Do you say it was Ali that knew that to do the work you would have to lift these heavy span jacks?

A. Yes he knew, obviously.

Q. You told us yesterday that if you had a problem with any aspect of your job it was Ali that you could go and talk to?

A. Yes.

Q. Well, in your own mind wasn't Ali the person responsible for the process?

A. Ali was supervisor so he would have had some responsibility.

Q. Right, it may have been with someone else but certainly Ali had a responsibility for the process, correct?

A. I think so.

Q. Right, and if he had a responsibility for the process then he was, at least in part, at fault?

A. (Witness nodded in the affirmative.)"

41 Mr Fleming took Mr Taboas to this issue in re-examination as follows:

"Q. Mr Taboas, we are dealing with the issue of VSL's involvement in this matter. When was it that you first became aware that VSL may, perhaps, have some liability to you for the incidents about which we are speaking?

A. I was, arranged a meeting with Mr Stockley in 2010 I think. Early 2010.

Q. Who was it that first raised the possibility of VSL being a party?

A. CMC rang me up, said they received a document, which had Ali's name as my supervisor but had a different company to the employer, which is Abigroup, and they asked me what that was about. I explained over the phone, quickly, and they said they were going to arrange a meeting with Mr Stockley.

Q. Was it from then that VSL had an involvement in this case

A. When

Q. or at least was that the beginning, so far as you were concerned, about the possibility of VSL having an involvement in the case?

A. Yeah. Well, when I went out with Mr Stockley, he explained or he asked me the situation. I explained the situation onsite and then he explained his thoughts on, possibly, VSL being involved in our case.

Q. Up until that time, did you know whether or not VSL could be a party to an action when you were seeking compensation for your injuries?

A. No.

Q. What was your understanding of your rights to seek compensation?

A. I thought my employer was responsible.

Q. Who was your employer?

A. Abigroup."

42 VSL submitted that Mr Taboas had the relevant state of knowledge from as early as his injury in late 2006, so that the three year post discoverability period expired well in advance of the date when the amended statement of claim was filed in the District Court on 13 February 2012.

43 There is on one view an immediate and stark difference between Mr Taboas' apparent states of knowledge as revealed in these two competing passages of the transcript. On the one hand Mr Taboas was aware that Mr Cetindag who worked for VSL was the person to go to if he had a problem with any aspect of the work. Mr Taboas conceded that Mr Cetindag was the supervisor "so he would have had some responsibility" for the process. More pertinently he agreed that "if [Mr Cetindag] had a responsibility for the process then he was, at least in part, at fault." On the other hand Mr Taboas effectively said in re-examination that he had no idea that VSL was potentially at fault until his lawyers suggested as much in early 2010.

44 Basten JA considered par (b) in Baker-Morrison at [28] in these terms:

"[28] In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."

45 His Honour continued at [40] as follows:

"[40] The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide 'a protective guard or covering along the area of operation of the ... sliding glass doors'. Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated." [Emphasis added]

46 The burden of Mr Taboas' evidence is that he did not know, until his lawyers told him, of any steps that VSL should reasonably have taken to make his workplace safe or safer. It is true that he looked to Mr Cetindag in this respect as the first point of contact in the course of carrying out the work. I am unable, however, to discern any recognition or realisation by Mr Taboas of a causal connection between Mr Cetindag's perceived failings and the corresponding existence of an action against Mr Cetindag's employer. Moreover, neither Mr Taboas nor a reasonable person in his position ought in my view to be expected to make a connection between Mr Cetindag and the potential liability of Mr Cetindag's employer for what he did or failed to do in the particular circumstances of this case. That would necessarily involve an understanding of the legal complexities attending the relationship between Abigroup and VSL on this site and their respective responsibilities for what occurred there.

47 As retrospectively simple as that analysis may now appear in this Court to be, it cannot be assumed that Mr Taboas either conducted, or should have been capable of conducting, the same analysis himself. The fact that he understood it when explained by his lawyers is not to the point. It seems to me to be particularly relevant that an injured worker in a complex industrial setting will turn exclusively and comfortably to his or her direct employer for recompense. That fact alone is likely to mask or blur the search for further defendants, if not put an end to it entirely. An understanding or appreciation of the collateral or coincidental possibility that others may also be at fault and liable to suit should not be assumed or taken as a given in such a case.

48 I am not satisfied that VSL has established that Mr Taboas' amended statement of claim was filed in excess of three years of the date upon which his cause of action against it was discoverable.

Liability

49 It is convenient to deal first with the alleged liability of VSL.

Breach of duty - VSL

50 In the events that occurred, there was little, if any, dispute between the parties as to what was physically involved in the lifting, manoeuvring, placing or removing and lowering of the span jacks onto the columns or piers. Sergio Fedeli, who worked with Mr Taboas and who gave evidence before me, gave one description of what was involved:

"Q. Just before I ask you that, when you were performing that part of the job, was there any restriction on the head room above the cherry picker when you arrived?

A. Yeah, there was. Every column or pier was different because bridges tend to want (witness indicated). You want to start low; come up; even out; then come back down again (witness indicated). So, depends on where. The middle section wasn't too bad, but at the ends I was obviously, you come up, you couldn't always bring a cherry picker level, or, you know, you had to crouch or something to get the cherry picker level where you were (witness indicated).

Q. I was going to ask you next about when you got to that, the cherry picker up to the height that you could. What was the method for removing the jack?

A. If, if the jack was flush with the pier, either one of us got out of the, out of the a bit hard. Try to push that weight with one arm or something. So, either one of us would get on top of the pier and pull it towards him or while the other would try to push one arm (witness indicated). That kind of system. I have used planks, if you couldn't get the cherry picker at the same height. We used a plank, like, a bridge, wiggled the jack onto the plate and push it up, go up so far. One would lift the plank up, push the jack on. That didn't happen all the time, but that was another way if we were confined too much with space."

51 Mr Taboas and Mr Cetindag also gave similar evidence confirming the method or system of work involved in the placement and removal of the span jacks. It was to this system that the experts were asked to direct their attention on the question of breach of duty.

52 Mr Taboas relied upon a report prepared by Robert Fogg from Total Risk Solutions Pty Ltd. His reports dated 5 February 2010 and 2 July 2013 were tendered without objection as part of Mr Taboas' general and liability evidence schedule exhibit "B". Mr Fogg was not cross-examined. Neither of the defendants suggested that any of Mr Fogg's conclusions were wrong.

53 Mr Fogg was of the opinion that Mr Taboas' injury was both foreseeable and preventable. He identified what in his opinion were the factors that contributed to it.

54 First, the failure to provide Mr Taboas and his co-worker with fit-for-purpose load shifting equipment that could manoeuvre each double hydraulic jack unit weighing a (now) estimated 112kg onto the top of the bridge beam supports and into position so as to negate the need for manual handling of the jacks. Secondly, the failure to develop, institute and maintain a safe system of work, including development and implementation of a risk assessment covering the installation and removal of the hydraulic jacks. Thirdly, the failure to develop safe work procedures. Fourthly, the failure to provide appropriate instruction to Mr Taboas about manual handling and risk mitigation. Fifthly, the failure to heed Mr Taboas' requests to review the process of installing and removing the jacks and to make the task simpler. Sixthly, the failure to comply with the New South Wales Occupational Health and Safety Regulation 2001 section 4.4 Manual Handling, the National Standard for Manual Handling or the National Code of Practice for Manual Handling. Mr Fogg proffered other formulations of these failures to a similar effect.

55 Mr Fogg concluded his first report with the following opinion:

"In my opinion, the injury that befell Mr Taboas was a consequence of a working environment that did not afford a safe system of work, and specifically exposed the plaintiff to significant injurious potential when required to perform manual handling tasks that required the plaintiff to lift and manoeuvre (push and pull) the double cylinder hydraulic units into position (including removal) as a team lift and weighing an estimated 180kg, and failed to provide a safe place of work to support the plaintiff in the undertaking of the work of his role. Accordingly, the prospect of an injury arising under the conditions as described, and as occurred to Mr Taboas, would have to be regarded as significant.

Based on the information made available to me, there appears to be a failure by the defendant [sic] to ensure that there was an adequate workplace review undertaken to identify all hazards of the work task and to implement the required risk management controls in order to perform the task safely. As indicated in section 4.1 of this report, there were reasonable preventative actions available which, if implemented, would have significantly reduced the risk to the plaintiff of sustaining a permanent damage type of injury."

56 Abigroup did not tender any reports from an expert dealing with the system of work. It relied on the expert retained by VSL.

57 VSL relied upon the report of Jonathan O'Brien dated 16 April 2013. Mr O'Brien is a civil and structural engineer. His report was tendered without objection as part of VSL's schedule of evidence exhibit "D2-24". He was not cross-examined. Neither Mr Taboas nor Abigroup suggested that Mr O'Brien's conclusions were wrong.

58 Even though Mr O'Brien was an engineer, he was asked his opinion about the possibility of a person sustaining back injury in the course of positioning the jacks as understood in this case. He uncontroversially identified three phases of the work, being the vertical lifting phase, the second in and out lateral positioning phase and the third lowering phase. With respect to the first phase he said that if there is no height differential between the top of the platform, by which he intended to refer to the platform upon which the jacks were situated, and the top of the pier, then there would be no need to lift the jacks and therefore little risk of lower back injury. However, in cases where there was, or developed, a height differential, the jack would then need to be lifted manually. Mr O'Brien described a 112kg lift shared between two men in such a circumstance as "obviously a large weight and one that both management and worker should deem to be both infeasible and injury-risk unacceptable." He referred to relevant literature that "clearly indicates that any lifting and moving of objects in the range of more than 50kg contains a very high potential for back injury."

59 Mr O'Brien then expressed the following significant opinion:

"Given this level of risk, it is my view that the system of work originally conceived by VSL must have involved the use of the boom-lift controls to remove the need to manually lift the span jacks onto the top of the piers."

60 Mr O'Brien said this concerning the second phase of the task identified by him:

"Once a span jack is able to be positioned on to the edge of the pier, it may need to be pushed inboard some distance. If the distance is more than one arm's reach, the task may require the worker to enter the gap between the pier top and the bottom of the precast concrete unit. Such working environment is extremely constraining as to movement and pushing, pulling or otherwise manoeuvring a heavy span jack under such circumstances would be very difficult.

However, in my view the task of pushing a 112kg span jack across raw concrete on the top of a pier while being jammed between the top of the pier and the underside of the bridge deck would be nigh impossible for two men. Consequently I assume that the jacks would only need to be pushed across steel surfaces that are either greased or Teflon coated. My estimate is that forces required to do this would be approximately 11kg."

61 It is not at all clear that Mr O'Brien's assumptions about lubrication were accurate. Mr Fedeli had some things to say about that as appears in the following evidence:

"Q. Was there any lubricant or other material on the top of the concrete column to help slide the jack?

A. No, not, not on the column itself. Once you got the baseplate, I think it was I can't think of it. We had a rubber thing. It had a white, oh, I don't know of the name.

Q. Was Teflon on there, was there?

A. Teflon. Teflon, yes. I want to say grease. It wasn't. It was something. I think we used Vaseline, whatever, on top. But that went, then Teflon went on top of it, then the jack went on top of that. When you were pushing it up you were pushing the Teflon on over the metal plate, you know (witness indicated).

Q. You didn't get to use the Teflon until you were at the baseplate?

A. On base. You had to struggle actually with the concrete. Sometimes it bit on the concrete. If you were biting the concrete, for whatever reason, you know, you push it with your feet or you push it. Yeah, just push whatever way you could."

62 Mr O'Brien described the third phase of the task of removing the span jacks as "the simple opposite of their installation." If that process were done correctly he assumed "that there would be low risk of back injury to the two workers who were manoeuvring the jacks."

63 Mr O'Brien had the benefit of a description of this task by Ali Cetindag, who also gave evidence before me. Mr O'Brien observed that Mr Cetindag had apparently undertaken the removal task on a number of occasions and described it as "moderately heavy".

64 Mr O'Brien's report concluded with comments upon two questions. First, the system of work in place "with reference to the combined working space" and secondly "whether the provision of equipment outlined by Mr Fogg was feasible in the circumstances of this case and readily available at the time of the plaintiff's injury." In answer to the first question, Mr O'Brien said this:

"Based on the various assumptions and reasonings outlined above, my overall opinion on 'the manually based system of work that was used to manoeuvre the jack in confined working space' is that it was adequate. While the task may have been a physically difficult one and one that was uncomfortable to execute, in my view it is highly unlikely to have been a major factor in the development of any reported lower back injury of Mr Taboas."

65 Mr O'Brien's answer to the second question was as follows:

"In my opinion the solutions proposed by Mr Fogg in his report, namely the use of articulated boom type truck-unloader crane and various types of hooks and grapples are solutions that are not technically feasible in this instances - as none of these satisfactorily solves the headroom problem identified [by me]. The reason is that a truck unloader crane supports its load from above while the hooks and grapples that Mr Fogg proposes also require support from above."

66 In addition to the tasks identified and commented upon by these experts, the evidence also indicated that the jacks had to be transported between piers. This was occasionally done using Mr Cetindag's utility. Mr Fedeli described transferring the jacks in the following passages:

"Q. When you were transferring the jacks from the bed of the ute to the rail of the cherry picker, was there a difference in height?

A. Yeah, there was. I, I can't, I don't know how much difference in height. But what we used to do, we used to put one foot on the ute, on the tail of the ute. You would have one foot on the second row of the cherry picker. I'd say, I don't know, you would be (witness indicated). Something like that. And you go, you grab these jacks and you go; '1, 2, 3' and just reef them up. But that's a two-man lift. But you couldn't, you couldn't do a two men pick up and walk, like, to across the room. It's just too heavy.

Q. You are taking them off the cherry picker onto the bed of the ute. Was it the reversal of what you just described?

A. Exactly the same: One foot on the cherry picker. One foot on the ute. A control, a control push, because you wouldn't try to hold. Just; '1, 2, 3' let them fall. But sort of, try, you know, guide them (witness indicated)."

67 It appears clearly from the way in which this case was conducted, and from the evidence touching the issue of breach of duty, that the system of work in accordance with which Mr Taboas was required to perform his tasks was unsafe and dangerous. It represented both a failure to provide him with a safe place of work and an unsafe system of work. In purely lay terms, Mr Taboas was required to manipulate and manoeuvre a very heavy and very awkward object in a confined space with inadequate equipment from a precarious position on a cherry picker onto the top of a limited area on the upper surface of concrete column or pier. The headroom was limited by the underside of the supported roadway sections above.

68 Although the task was occasionally facilitated by the use of Teflon mats, these were not always available or effective. The span jacks themselves were not designed or manufactured with a Teflon coating in place. Brute manhandling of the span jacks both in the course of placement and removal was commonly required to complete the work. Loading and unloading of the jacks into and out of vehicles between jobs was also required without any mechanical or similar assistance. Manhandling of the jacks from the ground a distance of approximately 900mm up onto the steel platform constructed upon the cherry picker was also required. Mr Taboas and his co-worker would manually perform these tasks. Half the weight of the span jacks alone exceeded the safe weight for manual lifting. Mr Taboas asked whether there was some simpler way of doing the job. He was given no satisfactory response, or none that translated into any alteration to the method of performing the work.

69 Section 5B of the Civil Liability Act 2002 is in the following terms:

"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."

70 So far as s 5B(1)(a) of the Act is concerned, VSL specifically accepted that it knew or ought to have known of the risk of harm associated with repetitive lifting of heavy weights such as span jacks. In my opinion, the risk that Mr Taboas would suffer harm was in any event clearly foreseeable. I have earlier referred to Mr O'Brien's opinion that, given the level of risk identified by him, it was his view that the system of work originally conceived by VSL must have involved the use of the boom-lift controls to remove the need manually to lift the span jacks onto the top of the piers. I take that opinion to be a specific recognition of the existence of a foreseeable risk of injury associated with the manual performance of the work. Be that as it may, it is doubtful in the industrial atmosphere in this State that any reasonable supervisor of labour that was required to perform the tasks performed by Mr Taboas would not have foreseen the risk that he might suffer an injury of the type that he sustained.

71 Mr Taboas carries the onus of establishing that the risk was not insignificant. VSL contended that Mr Taboas had failed to establish that the risk of harm arising from repetitive lifting of heavy weights such as the span jacks was "not insignificant". This was said to be for a number of reasons. First, VSL's system involved the use of a crane for the most part to remove and place the span jacks onto the columns. This was said to follow from Mr Cetindag's evidence in these terms:

"Q. All right. Now, if you're able to, if you can't please tell me, in terms of a percentage of time, are you able to give a percentage of how often the span jacks were placed on top of the columns using the crane?

A. No.

Q. No, that's all right. In terms of how often it was done, can you give us a...was it more often than not or less often than not done by crane or manually?

A. Well, like I said, originally it was all done by crane. To put it up the top we would use the crane, and it was just in the last couple of months we - where we had the jacks the crane would do it. When we didn't, we would have to do it manually with the cherry picker."

72 Secondly, lifting the span jacks was a two-man process and involved a controlled lift and movement. Thirdly, whenever it was necessary to lift the span jacks into the back of the utility from the cherry picker or ground level, or vice versa, the method involved the use of a controlled lift or push or a plank to make it easier. Fourthly, the Abigroup workers were all inducted by Abigroup and supplied to VSL as experienced construction labourers, and as such were aware of safe handling techniques. Fifthly, there were regular toolbox meetings at which safety methods and techniques were discussed and Abigroup employed a fulltime safety officer who regularly walked through the site. Finally, apart from Mr Taboas, Mr Cetindag was not made aware of any other worker who may have suffered a similar injury while lifting span jacks.

73 VSL contended that Mr Taboas had not established that the work involved repetitive lifting of heavy weights such as the span jacks. For this reason, VSL submitted that he had not established that the risk of harm was not insignificant.

74 Determination of whether or not the particular risk was or was not insignificant must be determined prospectively from VSL's position. The phrase has not yet been the subject of any comprehensive exposition by the Court of Appeal. However, in Benic v State of New South Wales [2010] NSWSC 1039, Garling J considered it at [101] as follows:

"[101] I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant":

(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;

(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;

(c) The phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk;

(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;

(e) Whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."

75 Whilst it is always possible that serious harm can occur in any accident, that is in itself unlikely to be sufficient to satisfy the test imposed by s 5B(1)(b). The mere possibility that there might be serious harm is not sufficient without more to fulfil the requirement of identification of the harm as not insignificant.

76 The risk of harm in this case was not insignificant. Mr O'Brien described the task of manhandling the jacks on the top of the column as "nigh impossible for two men." His assumption was that the jacks would therefore only need to be pushed across steel surfaces that were either greased or Teflon coated. The evidence does not support that assumption. For example, Mr Fedeli referred to the jacks biting on the concrete. Mr Taboas' evidence was to the same effect.

77 Mr Cetindag was the supervisor on site employed by VSL. His evidence is referred to below in more detail. However, he gave the following evidence on this aspect of the dispute when cross-examined by Mr Fleming:

"Q. And it is scarcely a two man lift?

A. Yes.

Q. You would expect that that would be outside of the weight that they would have been taught could be lifted safely?

A. Correct.

Q. So if these men were lifting 112 kilos, two of them, that would be an unsafe system wouldn't it?

A. I'd say so."

78 There was in these circumstances what I consider to have been a significant risk of harm.

79 Section 5B(1)(c) requires an analysis of the conduct of the reasonable person, in all of the circumstances of the case, when faced with the relevant risk of harm. Any assessment of this element requires that attention be given to the provisions of s 5B(2). However, as the provision makes plain, the list of factors referred to in s 5B(2) is not exhaustive.

80 VSL contended that Mr Taboas has failed to prove that any of the precautions suggested by the experts were reasonable. On the contrary, VSL contended that they were not. It submitted that, "as unfortunate as it might be, in respect of the handling of the span jacks on and off the concrete columns, even though not the pleaded risk of harm, there was no other reasonably practical way for them to be put up and taken down." That submission was energised by the following evidence given by Mr Cetindag:

"Q. It was suggested to you that if two men were lifting 112 kilograms it would be an unsafe system, and I think you agreed with that?

A. Yeah.

Q. As far as you were concerned, were you in charge of a crew of men involved in any unsafe system of work?

A. No.

Q. It was put to you that at one stage Mr Taboas, Robert, asked you whether there was a simpler way to do this, meaning, manoeuvring and getting the jacks up or down, and in your mind was there a simpler way of doing it, leaving aside using the crane, was there any other way to make it simple?

A. I wish there was."

81 VSL contended that Mr Taboas had failed to satisfy s 5B(1)(c).

82 For my part I am not prepared to accept either that there was no other way of doing the job, or even if there was, that such a circumstance relieved VSL from taking precautions against the risk of harm. The proposition can be simply tested. It could never be an answer to the present inquiry for someone in the position of VSL to say that running the risk of injury to Mr Taboas was permissible if there was no other way of performing a particular task. That would promote the commercial imperative above the importance of the duty to take reasonable care for his safety or, in other words, to allow the end to justify the means. Such a proposition has only to be stated to be rejected. If the task could not be performed without an unacceptable risk of injury or death, the task could not be performed at all.

83 It is clear that a reasonable person would take precautions against a known and not insignificant risk of harm. It is not correct to say that the absence or unavailability of such precautions means that the risk can then be ignored. In the present case employing another worker to assist Mr Taboas and his co-worker would have been one possible precaution that could have been taken. An additional cherry picker giving access to extra workers could have been utilised.

84 There was a high probability that Mr Taboas would have injured his back if required to perform the work in the way that was implemented. The lifting protocols for weights on flat ground were not met in respect of the span jacks. There was a complete disregard for the same protocols in the limited and awkward conditions on the top of the columns. The burden of taking precautions to avoid the risk of harm, such as the provision of extra workers, was small in comparison to the likely seriousness of the harm.

Conclusions on breach of duty by VSL

85 In my opinion it is clear that VSL breached its duty to take reasonable care for the safety of Mr Taboas.

Causation - VSL

86 Section 5D of the Civil Liability Act applies. It is in the following terms:

"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').

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

87 Apart from exceptional circumstances falling for consideration under s 5D(2), factual causation is to be determined in accordance with the "but for" test in all cases: see, for example, Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [55]; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132]. Mr Taboas bears the onus of proving any fact relevant to the issue of causation on the balance of probabilities. Where there are multiple possible causes, not all of which are negligent, Mr Taboas must demonstrate that it is more probable than not that, but for the negligence of VSL, his injury would not have occurred: see Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111 at [10]-[13]; Zanner v Zanner [2010] NSWCA 343 at [2].

88 VSL submitted that Mr Taboas was required to lead evidence that tended to prove both that VSL was the cause of his injury and that excluded other possible causes as being likely to have had a contributing effect. VSL submitted that Mr Taboas had done neither.

89 It is important in this context to recognise and understand the significance of what emerged as a contest concerning whether or not Mr Taboas' suffered from a pre-existing medical condition. Whatever be the correct assessment of it, which is referred to later in these reasons, the defendants have contended that Mr Taboas was likely to have succumbed at some stage to the very difficulties that now confront him as the result of the natural and unassisted progression and deterioration of a congenital spinal pathology or to the otherwise unexplained premature degeneration of his spine. Whatever the extent to which, if at all, that contention assists the defendants, it does so only on the question of damages. It does not do so as a competing cause that dilutes or defeats Mr Taboas' case on causation in the legal sense. It has nothing to say about satisfaction or otherwise of the "but for" test.

90 I am unable to understand VSL's very brief submissions on the legal causation issue. Mr Taboas was untroubled by any problems with his back when he commenced to work on the Windsor project. He gave no evidence of any incident of accident unrelated to his work there that could have been related to the emergence of his back condition. He was not confronted in cross-examination with any other possible cause. There was, for example, no suggestion of pre-existing complaints to medical professionals of prior problems with his back. Mr Taboas gave evidence of the emergence of leg and back pain in association with his work. His complaints about it to his supervisor are recorded and unchallenged.

91 VSL submitted that it was "of particular relevance in the case" that Mr Taboas was unable to point to any particular injury or specified incident that may have caused his injury or that occurred at or around the time that his symptoms first emerged. It will be recalled that his evidence was that he first noticed pain in his leg while in the cherry picker and going from one place to another. His evidence was as follows:

"Q. All right. You complained about the pain?

A. Yep.

Q. Around about 24 October?

A. Yeah, I mentioned it to Ali when I started noticing sharp pains down my leg, and told him, you know, I didn't know what it was, but it didn't seem to be a problem. And he said, 'See how you go. If it gets worse let me know'."

92 He was cross-examined upon this and gave the following evidence:

"Q. That you say am I correct in saying this, correct me if I am wrong that this pain that you noticed in your left leg, it happened at work?

A. Mm hm.

Q. Is that right?

A. Yes.

Q. Now when you say it happened at work, you don't recall any specific incident or anything you were doing at the time when you noticed the pain in your left leg, do you?

A. The first time I noticed it I was in the EWP with Sergio and I got a sharp pain.

Q. And that's the first time you noticed it?

A. Yes.

Q. You were in the EWP with Sergio?

A. Yes.

Q. What, going up or down or moving from one column to another?

A. We were just moving.

Q. So you were transporting something in the EWP from one pier to another and that's when you noticed pain in your left leg; is that right?

A. Yeah, well, from memory, I don't think we even we didn't even have anything in the EWP at all.

Q. You were just moving, transporting it from one to another?

A. Going somewhere. I didn't have any, like a jack or anything."

93 Mr Taboas did not suggest a specific precipitating incident for his pain. VSL criticises Mr Taboas' case upon the basis that the only apparent connection with his work was temporal in that Mr Taboas first noticed it when he happened to be at work. VSL also maintained that the medical records also did not support the existence of any specific precipitating event or factor. There is no record of a specific incident or lifting of any kind at work recorded by the Railway Street Medical Centre where Mr Taboas went complaining of leg pain on 11 October 2006. The WorkCover NSW Medical Certificate dated 24 October 2006 from Dr Hadfield describes how the injury occurred simply as "lifting". Dr Hadfield's later medico-legal report dated 27 September 2007 states that "[t]here was no specific action which appeared to precipitate the injury, although his work entailed a lot of physical labour including lifting." Dr Nair's report dated 15 November 2006, under the heading "Presenting Complaint" does not refer to any precipitating incident. (VSL also submitted that the sentence "There was no discernible trigger" appearing under that heading in Dr Nair's report was a reference to the same thing, but in my opinion a proper reading of that sentence shows that it is a reference to what caused the pain to reoccur clinically, and is not a reference to what may have caused the injury in the first place). The Nepean Private Hospital records for Mr Taboas' admission on 22 November 2006 describe the date of injury as 24 October 2006 and describe the cause simply as "work". Even that reference is absent from the equivalent records for Mr Taboas' admission to the hospital on 6 December 2006.

94 VSL submitted that Mr Taboas' compensation claim form did not clarify the situation. Unless I misapprehend the document to which that submission is directed, it is not correct. Abigroup tendered an inordinate amount of material that included a document described as "Accident/Illness Claim". In response to the question, "How were you injured?" appears the answer "General lifting." In response to the question, "What were you doing when you were injured?" there appears the answer, "Span alignment, sliding and moving span jacks."

95 Less than twelve months after the problems were first noticed, Mr Taboas was seen by Dr Conrad. He reported to his solicitors on 4 September 2007. Dr Conrad recorded the following history:

"This man is aged 26 years. He was employed by Abigroup...He commenced work there as a Tradesman Carpenter some three years before his injuries and he had no problems with his body when he started work there. He noted a gradual onset of pain in his left buttock and left leg, which radiated into his heel. The date of onset of symptoms was the second half of September 2006. He says that he initially did not report this at work, as he hoped that things would settle down.

Mr Taboas says that prior to the onset of pain for the previous month or two, he had been doing particularly heavy lifting tasks and he explained that a heavy manual jack weighing approximately 150kgs had to be placed under [bridges] to jack these up. He says that he and a fellow worker would lift the jacks into position and this would be done on a repetitive basis. He feels that this may have been responsible for the onset of his symptoms and initially, he did not realise that there was associated back pain, however, with the progression of time, through October 2006, he gradually noted that he had pain in his back as well."

96 Dr Conrad was not required for cross-examination.

97 VSL submitted that Mr Taboas had failed to prove that any injury sustained by him occurred in the course of his employment with Abigroup while working on the Windsor project. More particularly, VSL submitted that he failed to prove an injury that was caused or materially contributed to by any act or omission on its part. Included in that submission is a contention that Mr Taboas' pleaded case was one based upon repetitive lifting, and that the evidence did not support such a case.

98 I disagree. It is pertinent to observe that no attack was mounted upon Mr Taboas' credit with respect to his evidence about how his symptoms developed, or where or when. It appears to be accepted that they arose in the manner and at the time that he described in his evidence. That being so, there is a strong contemporaneous and situational correspondence between the first onset of leg pain and the performance of the work he was employed to do. It is not fatal to his case that Mr Taboas cannot identify a separate, single, or sudden precipitating event causing injury.

99 Nor in my opinion is this a case where the facts do not match the pleaded case. In my view, VSL's attack upon the pleading is no more than a semantic contrivance. I accept that Mr Taboas was required to lift span jacks repetitively. That does not mean that he was required to lift then several times per minute for hours on end uninterrupted. The uncontested nature of his work required Mr Taboas to lift (and manoeuvre) span jacks from time to time. To the extent that he was required to repeat the process, he was also required to lift the jacks repetitively. It is a mistake to confuse repetitive with repetitious. The distinction appears quite clearly from the context in the paragraphs quoted above from Dr Conrad's report.

100 Mr Taboas need only establish that his injuries were caused by VSL's negligence on the balance of probabilities. I am satisfied on all of the evidence that VSL's negligence was a necessary condition of the occurrence of those injuries. Mr Taboas may not be able to identify with certainty the time or the mechanism of injury. Nor does he have to. He gave effectively uncontested evidence about what he noticed, and he reported his concerns to his supervisor. There is a compelling contemporaneous connection between the onset of symptoms and the performance of work that was likely to cause them. I do not accept Mr O'Brien's so-called calculations that the forces assessed by him would have been insufficient to cause the injuries concerned. In particular, Mr O'Brien's analysis takes no account of the possibility that Mr Taboas' back was pathologically predisposed to injury. I am satisfied that Mr Taboas has established on the balance of probabilities that his back was injured while performing his work placing and replacing the span jacks. I reject VSL's submission that he has failed to do so.

101 There is also no reason why it is not in the circumstances appropriate for the scope of VSL's liability to extend to the harm so caused. VSL made no submission to the contrary.

Conclusions on causation - VSL

102 In my opinion VSL's negligence caused or contributed to Mr Taboas' injuries and disabilities.

Liability - Abigroup

103 Abigroup's liability does not fall to be assessed by reference to the Civil Liability Act. However, an analysis of VSL's liability in the light of the arguably more onerous provisions that that Act imposes upon a plaintiff helpfully informs the determination of Abigroup's liability in this case.

104 Abigroup conceded uncontroversially that it owed Mr Taboas a non-delegable duty to take reasonable care for his safety. It also conceded that the nature and conditions of his employment did occasionally involve the lifting of span jacks with another worker weighing not less than 112kg, which did expose Mr Taboas to the risk of spinal injury. For example, counsel for Abigroup made the following uncontroversial statement in the course of proceedings on the first day:

"BENSON: There could be little doubt that if the plaintiff suffered an injury by lifting, with another person, 112kgs, it posed a foreseeable risk of injury."

105 Abigroup contended, however, that that was "the high point of [Mr Taboas'] claim on this issue", and that it discharged its duty by providing reasonable supervision and training, as well as a system for the reporting of manual handling issues and a system for dealing with them. Abigroup embraced the same approach as VSL, submitting that Mr Taboas had failed to prove, because there was no evidence of, any precipitating injurious incident, nor any evidence of repetitive lifting of heavy items such as span jacks on 24 October 2006.

106 Abigroup's submissions were far less detailed than those proffered by VSL but to the same effect. However, for largely the same reasons, I am unable to accept them.

107 In my opinion Abigroup breached its duty to Mr Taboas, exposing him to a significant risk of injury by requiring him to perform the tasks earlier outlined in detail in these reasons. The system of work adopted was patently unsafe. His complaints about it went unheeded. No amount of instruction, training or supervision in apparent fulfilment of its duty to Mr Taboas as his employer can relieve Abigroup of the consequences of a dangerous system of work that involved the lifting and manoeuvring of the span jacks in that way. The risk of injury to Mr Taboas was both foreseeable and preventable and not one to which Abigroup, acting as a reasonable employer, ought to have exposed him.

108 Changing only those things that need to be changed, Abigroup breached its duty to take reasonable care for Mr Taboas' safety and that breach caused him loss and damage. Abigroup is liable to Mr Taboas for damages for negligence as his employer in the same way that VSL is liable.

109 Abigroup raised an additional argument apparently based upon what was considered by the Court of Appeal in Kotevski v Esselte Australia Pty Ltd [2005] NSWCA 126. Precisely what point Abigroup intended to raise is not entirely clear. However, the following response from Mr Taboas appears to deal with it completely.

110 Section 151H of the Workers Compensation Act 1987 provides that no damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment that is at least 15 percent. The degree of permanent impairment is to be assessed as provided by Chapter 7 of the Work Injury Management and Workers Compensation Act 1998. A worker can accumulate the results of separate incidents to satisfy the 15 percent threshold: Strasburger Enterprises Pty Limited t/as Quix Food Stores v Serna [2008] NSWCA 354. That Act also contains a series of mandatory procedures for the prosecution of a work injury damages claim. These are contained in Part 6 of the Act. Abigroup has not suggested that there has been any want of compliance with those procedures.

111 One of the mandatory requirements is the serving of a pre-filing statement. Section 313 prohibits the serving of such a statement or the commencement of court proceedings if there is a dispute as to whether the degree of permanent impairment of the injured worker that resulted from an injury is sufficient for an award of damages.

112 Abigroup has not raised an issue in this regard, either before the Registrar of the Workers Compensation Commission or by its pleaded defence in these proceedings. It does not therefore become necessary to examine the terms of the pre-litigation procedure that resulted in Mr Taboas recovering statutory compensation for whole person impairment of 15 percent or more and satisfying the threshold requirement of s151H of the Workers Compensation Act.

113 The Court of Appeal in Kotevski was concerned with the relevant date of injury for the purposes of an extension of time pursuant to section 151D of the Workers Compensation Act. It has no relevance for the purposes of this case.

Contributory negligence

114 Counsel for VSL made submissions upon this issue. They were in total as follows:

"There was a plank that was able to be used. If he needed assistance he could have asked for other manual assistance. The description of the work by Mr Fedeli; there's nothing to suggest that if they needed more help they couldn't have got it. Twenty-five per cent contributory negligence, in my submission."

115 Counsel for Abigroup made no submissions on this matter.

116 It is unsurprising that these submissions were so constrained. There is no basis at all for contending that Mr Taboas contributed in any way to his own harm by failing to take proper care for his own safety. The evidence indicates that he did the work as instructed. It also indicates that he asked for the work to be made simpler. Mr Taboas gave notice of an injury, but neither defendant made any connection between the complaint and his work. There is no justification for finding that Mr Taboas should have done what the defendants themselves failed to do. Contributory negligence clearly enough suggests fault. Mr Taboas was not at fault for what happened to him. He neither did what he should not have done nor failed to do what he was supposed to do. It is neither realistic nor fair, except in the case of blatant misconduct or incautious disregard for obvious risks, to suffer upon a worker the consequences of failing to assess the safety or otherwise of the work to be performed or to appreciate and understand the risks associated with doing it. Any damages to which he may be entitled should not be reduced by reason of his own fault or contributory negligence.

Cross claims

117 Although the cross-claims between Abigroup and VSL alike seek contribution from an alleged concurrent wrongdoer pursuant to s 5, and respectively pray in aid of those claims the particulars of negligence and breach of duty upon which Mr Taboas has relied, the cross-claim by VSL takes added support from the terms of the agreement it had with Abigroup pursuant to which VSL was on site in the first place. The claim as framed is not a claim in contract, even though it recites the Alliance Works Agreement No 1 Version #4 dated February 2006 executed on 26 October 2006 in relation to the Windsor Flood Project. VSL instead appears to rely upon the implication, arising from the terms of the agreement, that Abigroup had certain responsibilities to the exclusion of VSL and that any allocation of liability for Mr Taboas' damages upon the basis of what was just and equitable should be informed by the extent of those exclusive duties.

118 VSL pleads by reference to the general terms of the agreement that Abigroup was the head contractor on site pursuant to its agreement with the Roads and Traffic Authority. As such, Abigroup was the occupier of the site and responsible for the care, control and management of the site. Abigroup employed Mr Taboas and as such owed him a non-delegable duty of care to provide a safe system and place of work. Among other things, VSL alleged that Abigroup was responsible for the induction, training and supervision of Mr Taboas in the course of his work. It was Abigroup that directed Mr Taboas to carry out post tensioning work at the site. Abigroup reviewed and approved the system of work derived for post tensioning and directed Mr Taboas to work with VSL in performing that work. In that setting, VSL contended that Abigroup was negligent for failing to take the precautions that Mr Taboas relied upon as particulars of negligence in his case against Abigroup, and by extension was more responsible than VSL, if not exclusively so, for his loss and damage.

119 VSL went even further. It sought to draw upon the provisions of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001 as the source of safety standards with which Abigroup was required to conform. VSL relied upon these provisions as the foundations for an allegation of statutory breaches by Abigroup and not simply as a general articulation of matters that Abigroup was required to have regard to in order to meet the standard of care that Mr Taboas was entitled to expect as their employee. VSL contended that as an employer (as defined) and as a controller of premises (as defined) Abigroup had a duty to identify foreseeable hazards, assess risks, eliminate or control risks and provide instruction, training and information but that it failed to do so. VSL alleged in those circumstances that Mr Taboas' loss and damage were caused by Abigroup's breach of statutory duty.

120 Abigroup's response was to say that none of the provisions referred to was capable of supporting or founding a claim for contribution in a civil proceeding. It otherwise denied any liability to contribute.

121 The Alliance Works Agreement does not contain any clauses relevantly dealing with responsibility for claims for damages such as the present or an indemnity by one party of the other as commonly occurs. The recitals include a reference to the "object of the Alliance Agreement" as intended "to achieve in an innovative and efficient manner the execution of the work under the Alliance Works Agreement so as to achieve a winning position for both parties". It is clear that the agreement was primarily concerned with a joint undertaking in cooperation to complete a major engineering project.

122 I am unable to extract any meaningful assistance from the terms of the Alliance Works Agreement. It appears to be wholly beside the point for present purposes. It does not give any colour or helpful emphasis to any view I might otherwise be inclined to form about the respective and competing responsibilities of Abigroup and VSL concerning Mr Taboas' claims in these proceedings.

123 The clearest indication of comparative responsibilities is Mr Taboas' employment relationship with Abigroup. It was responsible for the work he was required to do and the way in which he was to do it. Abigroup held regular toolbox meetings at which on-site safety concerns were, or should have been, addressed. The provision and utilisation of span jacks was a critical aspect of the works. Any risks associated with the work involved in placing and removing the span jacks must in the first instance have been known to Abigroup and should have been eliminated or otherwise minimised by Abigroup.

124 VSL's role is not articulated clearly, either in a documentary form, or from any other evidence in this case. It is known that Mr Cetindag "supervised" Mr Taboas and Mr Fedeli in performing the work. This emerges from his own evidence in chief, which was to the following effect:

"Q. Sir, up until 2010 I think you were employed by VSL Australia, the second defendant in these proceedings?

A. Yes.

Q. And were you the senior civil construction supervisor?

A. Yes.

Q. Was that the title that you had in 2006 when the Windsor flood reduction project was being undertaken?

A. Yes.

Q. And did you essentially, throughout most of that project, look after the bridge and have a crew of between about 10 to 12 workers?

A. Yes.

Q. And were some of the workers VSL employee?

A. Yes.

Q. I think two or three, is that right?

A. Yes.

Q. And the rest were from you Abigroup?

A. Correct.

Q. And were your crew, were they essentially labourers?

A. Yes."

125 Mr Cetindag was then taken by counsel for VSL through the whole span construction in some detail. Photographs of the process were identified by him and tendered during his evidence. His role in labour control or supervision was not directly adverted to throughout that part of his evidence until the following material emerged:

"Q. Now, how many if you understand what I'm saying, pairs of men did you have working on the span alignment? Was that something that was done by two men only or was it a rotated job?

A. It was constantly rotated. I tried to rotate the guys around as much as possible. I found at times that a lot of the guys were so happy in what they were doing they didn't mind staying in that particular job or position. But I got them involved in all different aspects of the underslung system.

Q. Can you tell his Honour a little bit about the other jobs that were involved with the span alignment or underslung job. Is span alignment part of the underslung work?

A. The whole thing, the underslung system is the girder, that's what it's terminology. So besides the span alignment there was the grouting of the bearings of course as well."

126 Mr Cetindag gave specific evidence about Mr Taboas:

"Q. As to whether he was involved in these other jobs?

A. Yeah. He was involved in span alignment, stressing of the cables, cutting of the cables, pushing the strand, getting the HDPE pipes inside the spans. And also landing segments as well. So I managed to rotate everyone so they could get a feel of it. I mean, it's pretty exciting watching something like this come into play and come together, so yeah.

Q. And the sort of turnover time for each of these spans between the columns, was there roughly a set period of time that that could be done in, or was done in rather?

A. From memory I think we had like a three day cycle. Two or three, two and a half to three days, something like that, from memory I think. Yeah."

127 Mr Cetindag was then directed to the specific issue of safety:

"Q. Were there documents that had to be completed called JSAs or job safety analysis cards?

A. Yeah. JSAs there was, yeah.

Q. Was that done on a regular basis?

A. Yep.

Q. How often?

A. Every day. Well, not just every day but pretty much every time they went to do a new job.

Q. And who would complete the JSA?

A. The people that were actually doing the job.

Q. And what would happen to them?

A. They'd get handed back to me and then I would hand them back to Lee Russell who was the safety coordinator for Abigroup.

Q. And on the JSA was there an opportunity for the workers to make comments about the job?

A. Absolutely. Absolutely."

128 He then gave this evidence:

"Q. And to the best of your recollection was there ever a JSA when one of the workers who was doing the span alignment identified any issue or problem, particularly of a safety issue?

A. Well, the main thing was the oil being leaked, and that's all I can really remember. And the sheer fact that they were heavy and, you know, they were hard to move and stuff like that. So they did mention that in there. And hence that's why I got to rotate them around as much as I could so if people weren't happy with that position I would try to rotate them around.

HIS HONOUR

Q. Sorry, you rotated them for what reason?

A. For different jobs.

Q. Was that a safety issue?

A. Well, yeah, repetitiveness of any sort I guess, especially with heavy lifting, not that it was really heavy lifting but yeah, people get bored doing the same thing, the monotony of it all. Hence that's why we had such a great team on the project and we managed to finish so far ahead, which is really good."

129 Mr Taboas reported his injury directly to Mr Cetindag. He mentioned this in his evidence as follows:

"Q. Do you recall Mr Taboas or Robert ever reporting to you any pain or injury throughout the time that he was there?

A. He did mention it, yeah.

Q. Do you remember what he said to you?

A. He said, he did say his back was sore. He's not feeling well, his back's feeling a bit, thing. And I can't remember what I said back but I do remember him coming up to me and telling me that his back was a bit sore."

130 When cross-examined by Mr Benson of counsel for Abigroup, Mr Cetindag agreed that there could have been as many as seven VSL employees working on site at any one time. However, as Mr Cetindag made plain, "on the actual job itself, doing hands on was myself, Andrew Klumper, Matt Anthony, Tristan Young." Mr Cetindag was then shown a document apparently written by David O'Donnell, the engineer from time to time in charge of the project. He agreed with what was written. It was as follows:

"There was no documented work method in regards to the

removal of the jacks. The work method used was the same as we had previously used on past jobs. The safety risk assessment in place discussed the various work systems but there was nothing specifically about manually handling the hydraulic jacks."

131 No further or other questions were asked of Mr Cetindag concerning that statement. That is somewhat unfortunate. It is therefore unclear to me where in the scheme of the current issue it should be placed.

132 Abigroup tendered a large series of documents relating to meetings at which safety issues were discussed and considered. Abigroup contended that up until that time it had a system that stopped when Mr Taboas went under the care of VSL.

133 Mr Cetindag agreed generally that he was the person supervising Mr Taboas. It is not known whether that role included or extended to amending or adjusting the work methods or altering the ways in which the span jacks were placed or removed. It is also not known whether Mr Cetindag held an ongoing brief to redesign the way the work was done from time to time in response to problems that arose or at any time. The only detail of Mr Cetindag's supervisory role that is available, apart from what may be implied from the description, is that a vehicle supplied to Mr Cetindag by VSL was available for use by Mr Taboas and Mr Fedeli when required for transporting the jacks. The full nature or extent of Mr Cetindag's assigned responsibility for these men is not otherwise clear. Unfortunately, none of these matters was taken up with Mr Cetindag in cross-examination in a way that highlighted or clarified the respective positions of Abigroup as the employer on the one hand, and VSL through its supervision of Mr Taboas via Mr Cetindag on the other.

134 Doing the best I can it seems to me that Abigroup and VSL are each equally responsible for the injuries that Mr Taboas sustained. At the broader level, Abigroup was in control of the site and was responsible for the design and implementation of a safe system of work. At the narrower level, VSL's direct employee Mr Cetindag was the person assigned to supervise the span jack placement and removal work and the workers who did it. What might loosely be described as a joint venture at the Windsor site produced a somewhat ambiguous delineation of responsibilities. No single factor or collection of factors points more directly in my view to one defendant rather than to the other. Abigroup may well have been Mr Taboas' direct employer and the occupier of the site but Mr Cetindag was intimately concerned with the detail and closely associated with everything Mr Taboas was required to do.

135 In my view it is just and equitable, having regard to the extent of their respective responsibility for the damage, that Abigroup and VSL should contribute equally to Mr Taboas' loss and damage.

Video evidence

136 I have earlier described the complaints that Mr Taboas maintains concerning his condition following his injury and operative treatment. He was challenged about this evidence during cross-examination. Significant among the matters that were put to him was video footage depicting Mr Taboas performing work over an extended period on the balconies of what appeared to be residential premises. He said that he went there with his father to assist him in work that his father was engaged to carry out for the homeowner.

137 Taken at face value there is a direct and distinct disconformity between Mr Taboas' own descriptions of what he can and cannot do due to the pain that limits his activities in various ways on the one hand, and the activities that he is shown performing in the film on the other hand. Doing the best I can, having regard to the clarity of the images, Mr Taboas did not appear to me to exhibit any apparent limitations or restrictions at all during the whole of the time that he is shown working there. That work involved standing, stooping, bending, lying down and kneeling throughout the whole of the film. He did not stop working at any time in a way that suggested pain was limiting his performance. He appeared to me to be wholly unrestricted in everything he is shown to be doing.

138 That presentation has to be contrasted with his performance in court before me. Throughout the hearing, whether in the witness box giving evidence or seated elsewhere in the courtroom, Mr Taboas adopted the habit of standing and stretching his back from time to time. That was an activity that was entirely consistent with the type of back problems he claims to have. No such interludes punctuated his video activities. It was suggested to me that his apparently free and unrestricted performance shown on the film might have been possible due to analgesic pain relief. However, it is difficult to understand why he would not have been similarly assisted in court if his pain were so extreme as to require constant postural adjustment. This contrast was not taken up by anybody in cross-examination but appears to be a matter of which I can take notice. This is all the more so in my view having regard to the fact that Mr Taboas described and listed the considerable amount of pain killers that he is in the daily habit of ingesting. I put to one side the lurking contradiction that arises from the fact that no documented claim is made for out of pocket expenses for the cost of any such medication throughout the whole of the period between late 2006 and now.

139 Part of Mr Taboas' claims relates to his inability to perform domestic tasks, or at least that he has experienced some difficulties in doing so. The evidence about this was scant and largely untested. It was unfortunately not corroborated either. It is remarkable that Mr Taboas' did not choose to call either his wife, to whom he referred in various contexts throughout his evidence, or his father. The former would have been particularly helpful given the nature and extent of Mr Taboas' claimed restrictions. The latter would have been of equal assistance in light of the controversy attending what can be made of the activities shown on film. Mr Taboas' father was there at the time and appears to have driven to and from Sydney with him to carry out the work. It is difficult to think of a better witness to these events, whose evidence may have helped to dispel any doubt or uncertainty about what to make of it.

Medical evidence

Dr Maniam

140 Mr Taboas called Dr Maniam. He had previously provided a series of reports concerning his condition and his capacity for work. By the time he gave evidence he had been shown the video material depicting Mr Taboas doing extensive amounts of physical work at premises on the central coast. He was asked, in effect, whether that film altered his view of Mr Taboas' capabilities:

"Q. Now doctor, on the basis of the observations that you made of the video, have you reviewed your assessment of Mr Taboas's capacity to perform work?

A. We have, um, he will be capable of selected duties and that remains the same. The DVD exhibits Mr Taboas to be capable of doing a significant amount of spinal movement.

...

Q. Did the observations you made of his capacity to exhibit spinal movement cause you to review your conclusions regarding his capacity to perform work?

A. I would still maintain due to the condition that he suffered from and surgery that he underwent, that he should remain on selected duties."

141 Dr Maniam later gave his opinion about precisely how his views about Mr Taboas translated into working hours:

"Q. Did you obtain from him a history of how many hours a week he was working?

A. He was working extended hours of between 13 and 14 per day.

Q. When you tell the Court now that you regard him as fit for selected duties, what are the restrictions which you place upon his ability to work?

A. The number of hours that he should work would be the normal hours.

Q. By that, you mean how many hours?

A. That would be eight hours five days a week. We would advise him not to do overtime and extended hours. In relation to his physicality we would suggest that he avoided repetitive bending and heavy lifting and prolonged standing and sitting as well.

Q. When you refer to heavy lifting doctor, is there a particular weight you would prescribe?

A. I would limit it at 15 kilograms."

142 Dr Maniam said that from what he saw on the video "it didn't appear that he was in moderate pain" but that "his movements were conducted to a satisfactory range." He agreed that Mr Taboas "performed his movements in a satisfactory manner." Dr Maniam's cross-examination then involved the following exchange:

"Q. He was seen, wasn't he, to spend extended periods of minutes on his hands and knees scrubbing or washing the floor, with an implement in his right hand, which involved pressure on his lumbar spine; you would agree with that, wouldn't you?

A. I couldn't see the implement but he was on his knees and hands.

Q. I want you to assume for the minute that Mr Taboas has agreed that he was doing just the very things that I have just put to you. That's not a picture consistent with a man with a spinal disability, is it?

A. At that point in time he would have experienced very minimal pain.

Q. If at all?

A. And exhibited a satisfactory range of movement.

Q. You would have expected a man suffering with ongoing pain to have given up on that activity, wouldn't you?

A. That is correct.

Q. So does it tell us then that his persistence with that work speaks of the fact that there was no pain during that activity?

A. It is hard to tell whether he was in pain or not, but I can only say that his movements were very satisfactory."

143 Dr Maniam agreed with the proposition that, comparing what he saw on the video before giving evidence with Mr Taboas' presentation to him on 2 August 2012, there has been a significant improvement since that time.

Dr Smith

144 Dr Smith examined Mr Taboas on behalf of VSL on 8 October 2012. His report of the same date was tendered. It was a significant part of Dr Smith's evidence that Mr Taboas was suffering from Scheuermann's disease, which is a congenital condition of the spine. He was of the opinion that Mr Taboas' complaints of pain and disability were all related to the existence of that condition, which in his opinion would inevitably have progressed to restrict Mr Taboas without any intervening traumatic cause of the kind for which Mr Taboas contended. This was on Dr Smith's analysis a case of the acceleration of a disability that was inevitably going to afflict Mr Taboas at some stage no matter what his industrial experiences may have been.

145 I asked Dr Smith some questions about his opinion as follows:

"Q. ... Just so that I am clear about it, is there anything in your opinion that is wrong with his spine and if there is, how would you describe it?

A. Well, he has quite extensive lumbar degenerative disease, so he will have back pain from time to time with or without leg pain and it may occur for no apparent reason. And, theoretically, if he were to engage in certain activities, he is more likely to suffer those aggravations from time to time. So therefore he has to be somewhat selective about what he does.

Q. Is that degeneration, to your observation, limited to any particular portion or portions of his spine?

A. It's the entire lumbar spine and probably extends into the thoracic spine.

Q. And he has had a procedure performed, I think by Dr Nair?

A. That's correct.

Q. Does he retain a potential for problems in the future with his discs at the level of the degenerative lumbar spine in terms of nerve root impingement or obstruction?

A. That's unlikely. The microdiscectomy is simply Dr Nair made the assumption that the disc bulge is producing his symptoms in the legs.

Q. Yes.

A. So therefore he removed the disc bulge.

Q. Yes.

A. But that didn't make any difference to his symptoms, because the diagnosis is incorrect. It's really due to the degenerative disease. So having the disc bulge out won't make a great deal of difference to him one way or another."

146 Dr Smith was necessarily taken to what was revealed in the video material and asked for his opinion about it:

"Q. In particular, in terms of his capacity to work?

A. Well, I thought that the film demonstrated someone who you would be inclined to think had nothing wrong with the back, which he would have periods of that. But it wouldn't change my view that he will still have to be careful with what he does with some activities.

Q. And your opinion in relation to the reason for why he would need to be careful with some activities is based on what diagnosis, as far as you're concerned?

A. Well, the radiology is that he has very extensive Scheuermann's disease alone, and then he has got super imposed on that degenerative disease which is also very extensive."

147 Dr Smith said that the degenerative process would become symptomatic in quite an unpredictable fashion. However, he also agreed that someone with Scheuermann's disease could go through life without particularly bad symptoms. He also said even though it may appear to be "commonsense", it was not possible to say whether someone with Scheuermann's disease, who is asymptomatic, would be more or less likely to be rendered symptomatic by extreme or strenuous effort. He emphasised that "there are people with Scheuermann's disease and degenerative disease who will tell you they don't have any symptoms."

148 Dr Smith made some concessions:

"Q. And people suffering from back conditions can go for ... periods of time where they are much better than other times?

A. Yes, I think they all do that. They all have pains that come and go of varying severity.

Q. It doesn't matter whether it is Scheuermann's disease or some other condition, does it?

A. The arthritis, they basically have arthritis of the back. And that condition can come and go in severity and you can have asymptomatic periods as well, yes."

149 Dr Smith said that there was no lesion demonstrated in Mr Taboas' MRI results from 2006 that was the consequence of any one particular activity. It was all superimposed upon the Scheuermann's disease. He said Mr Taboas' spine would have looked the same the year before. He said that there was "no lesion in 2006 that's as a result of any particular accident or injury or series of accidents or injuries." He also said "if you have a back like his, you can have pain with or without work." He then gave the following evidence:

"Q. So are you saying, that if he had back pain as a result of the work, by now that has settled and the condition he's left with is entirely the result of Scheuermann's disease?

A. There is no back pain present now that is as a result of any activity in 2006. The Scheuermann's disease combines with the aging process to cause degenerative disease to be worse than otherwise would be and, therefore, he will have aggravations and pain from time to time because of that being aggravated from time to time.

Q. As a result of the heavy work that he was doing?

A. Not in 2006. He would have to have the heavy work. If he has pain today, it was the heavy work that he did today not the pain in 2006."

150 Dr Smith agreed that Mr Taboas would be well advised not to go back to heavy work.

Dr Powell

151 Dr Powell had been asked to examine and report upon Mr Taboas on 14 June 2007 and 22 April 2010. He provided reports outlining his conclusions. He gave evidence before me. His evidence commenced with the following:

"Q. Doctor, today you have had the opportunity of viewing some video imaging of Mr Taboas, is that correct?

A. That's correct.

...

Q. Doctor, having regard to what you saw and observed of the plaintiff on the video and I want you to assume for the moment that Mr Taboas was seen on each of the balconies that are disclosed in the video footage undertaking the work, did you have any difficulty yourself in identifying him?

A. The quality of the video wasn't fantastic, particularly on a small computer screen. He was identified to me based on what he was wearing and in the initial part of the footage where he was in the service station and I am happy with who I was pointed out as being Mr Taboas.

Q. Having regard to what you observed on the video, could you form any view about his capacity to work?

A. I think it is reasonable based on what I have seen on the video to form an opinion on his ability to work, yes.

Q. You had previously expressed a view in your report on 21 May 2010 about his capacity, is that correct?

A. That's correct.

Q. Just for the record, what was your view back then?

A. I felt that he would have a capacity to return to work though in a reduced capacity.

Q. In what industry and in what role?

A. I didn't feel he would be, it would be appropriate for him to return to his full previous duties as a labourer. I felt he would have an ability to work in a restricted fashion, restriction of bending over, avoiding repetitive bending, lifting, twisting, heavy lifting, opportunity for breaks.

...

Q. Having seen this video footage today, do you see any reason to alter your views about his capacity for work?

A. No."

152 Dr Powell was cross-examined but only very briefly. There appeared to me to be not only an opportunity, but also a requirement, that he be challenged with the opinions of Dr Smith which had by then clearly emerged as a significant part of the defendants' case. That was that Mr Taboas was suffering from a pre-existing degenerative condition of the spine caused either genetically or as the result of heavy labouring work in the construction industry. There was a prospect that some interference with his working life would eventually have emerged even without the precipitating circumstances evident when he was working for Abigroup. No attempt was made by anybody to elicit Dr Powell's views on whether that was likely or by when it would have become apparent if it were.

Other medical evidence

153 Several other doctors examined Mr Taboas and provided reports about him. None was called to give evidence. Nobody took me to the wealth of reports supplied by these experts in any detail at all. I was left (presumably) to examine them silently in the fond hope of being able to divine where they lay in the scheme of competing inferences touching Mr Taboas' condition, his capacity for work and his intermittent or permanent levels of disabling pain.

154 Dr Mellick considered that Mr Taboas had considerable limitations upon his employability as the result of chronic pain. Dr Mellick was never asked to comment upon the video material. He was never asked his opinion of whether or not Mr Taboas suffered from Scheuermann's disease. He said, "no specific abnormalities or disabilities are identified and [there is] no organic diagnosis on the current existing evidence." He accepted that Dr Nair's clinical findings were "of some considerable relevance."

155 Mr Taboas' medical evidence is contained in a folder of 380 pages. It included the reports of Drs Powell and Maniam to whom I have already referred. Included amongst that material is a report from Dr Champion dated 29 May 2010. He said of Mr Taboas "there was no predisposition to lumbar spinal disorder prior to August 2006, although if he had undergone MRI studies before that there would have been some residual features of juvenile osteochondrosis in the spine and perhaps a little disc desiccation or other minor indications of degenerative process in relation to lumbar discs." That opinion was neither tested in cross-examination by the defendants nor put as a controversial opinion to Drs Smith or Powell. It has also to be compared and contrasted with the concession made by Mr Taboas' counsel that there was no dispute that he had a pre-existing pathological condition of the spine, whether it be diagnosed as Scheuermann's disease or early onset of degeneration.

156 Dr Davies expressed the opinion in his 17 May 2010 report that Mr Taboas' "initial injuries and his ongoing condition relate to the work injury in October 2006." His prognosis was expressed in these terms:

"The prognosis is for dome degree of ongoing back pain and intermittent leg pain on a long-term basis. Mr Taboas is permanently unsuited to heavy manual handling activities and will be permanently restricted to lighter work duties. He will have ongoing limitations on his recreational activities because of his persisting pain."

157 Dr Davies was not required for cross-examination.

What was the nature and extent of Mr Taboas' pre-injury condition?

158 As recently noted, there was no dispute that Mr Taboas had a pre-existing pathological condition of the spine, whether it be diagnosed as Scheuermann's disease or early onset of degeneration. Whatever may be its proper characterisation, there is no evidence to suggest that the condition had become symptomatic at any time before Mr Taboas noted the problems he reported at work.

159 Dr Chan's report to Dr Hadfield on 2 November 2008 concerning the results of a CT scan performed on that day included the following:

"On review of the bone windows, a Schmorl's node is noted at the level of L4. No other focal abnormality detected. Minor degenerative changes are noted."

160 On 27 November 2006 Dr Cahill reported to Dr Nair with respect to the results of an MRI conducted by him two days earlier. Part of his report was as follows:

"The features largely reflect those of the recent CT; the degree of the L5/S1 disc prolapse has reduced, although the degree of prolapse at L4/5 is probably unchanged.

Central and left paracentral L5/S1 prolapse with potential impingement on the left S1 nerve root.

Substantial left paracentral L4/5 prolapse with compression of the left L5 nerve root and impinging on the right L5 nerve root in the central recess.

Small L3/4 right paracentral annular tear but no prolapse.

No critical bony canal or foraminal stenosis, and no foraminal neural compression, at any level."

161 Somewhat later, on 24 August 2012, Dr Singh reported to Mr Taboas' solicitors upon results of an MRI performed by him on that day. Part of his report was as follows:

"At L4/5: Mild loss of disc height with disc dehydration and moderate broad based disc bulge. The degree of disc bulge has reduced since previous study and there is now mild to moderate central canal narrowing at this level, previously moderate to severe. There is still left lateral recess narrowing and likely compression of descending L5 nerve root. Mild bilateral foraminal narrowing.

At L5/S1: Posterior annular tear and posterocentral disc protrusion. Mild central canal narrowing. No significant foraminal narrowing. Appearances are stable.

No paravertebral soft tissue mass.

IMPRESSION: Spondylotic [sic] changes most severe at L4/5 and L5/S1. The moderate broad based disc bulge at L4/5 has decreased in size, however, there is still left lateral recess narrowing and likely compression of descending L5 nerve root. At L5/S1, stable posterior annular tear and posterocentral disc protrusion, without evidence of neural element compromise.

XRAY LUMBOSACRAL SPINE

Findings: No fracture or focal bony lesion. The alignment is preserved. Facet joints define normally. No other radiographic abnormality."

162 When Dr Powell reported to QBE Workers Compensation on 25 June 2007, he had the benefit of the 2 November 2006 and 25 November 2006 radiological investigations referred to earlier. He commented in his report that there was "no conclusive evidence of pre-existing pathology to take into account." Having regard to the concession regarding Mr Taboas' susceptible spine, and the radiological evidence set out above, I am forced to conclude that Dr Powell was only referring to the absence of any observable evidence of an independent traumatic incident involving damage to the spine or associated structures.

163 The evidence establishes that Mr Taboas had pre-injury radiological signs of early degeneration. However, Dr Smith is alone in his conclusions that Mr Taboas has Scheuermann's disease and that his continuing complaints and symptoms were for that reason unrelated to his activities at work. I find that Mr Taboas' spinal degeneration was rendered symptomatic by his lifting activities and that he had not experienced any such problems before they emerged at the end of 2006. I am also satisfied that Mr Taboas would in all likelihood have remained in that asymptomatic condition absent the interposition of some precipitating event. I am comforted in that conclusion by the fact that Mr Taboas' recent enforced reduction in levels of physical activity has produced what appears to be radiological evidence of a corresponding retardation of the degenerative process.

Would Mr Taboas have become disabled even without the defendants' negligence and if so to what extent?

164 With the exception of Dr Smith, none of the expert medical opinions addressed this issue in detail. Even so, Dr Smith's opinion does not constitute a satisfactory basis for concluding that Mr Taboas was somehow destined, in terms of measurable or assessable probabilities, sooner or later to end up with a condition of the type that now afflicts him. As attractive as the idea may sound from a so-called commonsense perspective, it was scientifically unassessable as a general proposition and correspondingly useless in the present case. Apart from an accepted discount for the vicissitudes of life, I am unarmed with sufficient evidence that permits or allows me to prognosticate about the likelihood that Mr Taboas might someday by chance have encountered the necessary precipitating event.

165 There may also be at large some theoretical prospect that Mr Taboas would ultimately succumb to the consequences of his degenerative condition without such a precipitating event. I feel equally unable upon the evidence in this case to assess that chance without illegitimately resorting to guesswork, which I am not inclined to do. The radiological evidence suggests that Mr Taboas is adhering to medical advice to avoid potentially exacerbating activities, although it must be said that the video evidence casts that observation into some little doubt.

Non-employer damages

General

166 There is medical support for the conclusion that Mr Taboas suffers from a disabling spinal pathology. There is some doubt about the precise nature and extent of that disability. The evidence supports the proposition that Mr Taboas is and will remain unfit for activities involving constant or repetitive lifting or bending. However, he has a capacity to perform supervisory work both from a medical and historical perspective provided, both on medical advice and from his own experience, that physical activities such as climbing and extended walking are not involved.

167 Mr Taboas gave evidence that he was required to take large amounts of analgesics on a daily basis in order to function. However, he makes no measurable claim for the cost of these medications. He said in evidence that he did not realise that he should retain receipts for this expenditure, which seems odd, but he was not shown to be untruthful. His wife and father were never called, which is also odd and currently unexplained. It is difficult to feel confident about the uncorroborated aspects of his claim when first hand observers who were and remain available to support them are not heard.

168 The absence of Mr Taboas' father as a witness is the more significant. This is because it was he who assisted Mr Taboas in the work activities depicted in the video material upon which the defendants rely. From my perspective that material was on its face entirely inconsistent with Mr Taboas' case in this Court. For example, if Mr Taboas was able to work in the unrestricted way shown on the film only because he was medicated, it is in stark contrast to his medicated presentation in Court, when not involved in strenuous activities, when he still required time to stretch and to assume postures apparently born of discomfort caused by pain. It seems highly likely that observations from Mr Taboas' father would have reliably informed a more confident understanding of the depicted activities and of Mr Taboas' true condition.

169 I am not prepared to accept that Mr Taboas is as disabled as he suggests. His not unimpressive post-injury work history alone supports that conclusion. I accept that he has a condition of the spine that will restrict his employment choices as well as his domestic and recreational activities to some extent. However, he will be able in my opinion to accommodate the constraints and restrictions associated with these aspects of his life in the future so that he is not totally or permanently prevented from leading a relatively normal existence. His interest in and moderate success with retraining and vocational advancement suggest a return to the workforce in a supervisory or self-employed capacity at some time soon.

Vicissitudes

170 No party urged upon me any discount for vicissitudes at any rate that differed from what has for long been accepted as appropriate in an ordinary case. I have already observed that assessing when or if Mr Taboas' back would have ended up as it is now without the assistance of his work activities on the one hand, or whether it will deteriorate in the future at a rate faster by reason of his degenerative predisposition than it would if his premorbid condition had been pathologically neutral on the other hand, are questions that the medical experts were either unable or disinclined to answer. I am no better placed to do so without injustice to one side or the other. Accordingly, no particular circumstances in this case attract a discount for vicissitudes other than at the rate of 15 percent.

Non-economic loss

171 Damages for non-economic loss are to be assessed having regard to s 16 of the Civil Liability Act 2002. In my opinion, Mr Taboas exceeds the 15 percent threshold to which that section refers, below which no damages for non-economic loss may be awarded. I consider that Mr Taboas' injuries and disabilities are such that, having regard to his pain and suffering, his loss of amenity, his loss of enjoyment of life, but having regard also to the notion of a most extreme case, he is entitled to damages under this head calculated at the rate of 35 percent of a most extreme case. That calculation corresponds to a sum of $193,000.

172 In forming that view I have taken account of my observations of Mr Taboas in the witness box and otherwise inside the courtroom during the hearing. I have compared that with what appeared to me to be the wholly unrestricted activities performed by Mr Taboas on the film. I have necessarily taken account of the medical opinions from doctors who were shown this material, which on balance was fairly sanguine about its significance.

173 Be that as it may, I am at least satisfied that Mr Taboas is not as restricted in his day to day activities as the extraordinary particularisation of his claim appears to suggest. I specifically find that Mr Taboas is in no need of attendant care or domestic assistance on any basis and that he has never required it. Domestic and household chores, including gardening and handyman tasks, are wholly within his capacities, which I later refer to in the context of his employment. He has no need of special equipment or vehicles or house modifications or domestic gadgets. He has sustained a back injury that directly intersects with his work capacities, but he is not an invalid, and in my view very far from it.

174 These matters are all considerations touching and concerning my assessment of where Mr Taboas should be placed in relation to a most extreme case.

Past economic loss

175 I was provided with agreed details of Mr Taboas' net weekly earnings during the period from 2004 to the present time. They were as follows:

2004-2005: $1,049

2005-2006: $963

2006-2007: $959

2007-2998: $1,015

2008-2009: $959

2009-2010: $1,924

2010-2011: $1,980

2011-2012: $1,555

2012-2013: Nil

176 Mr Taboas' post injury employment history suggests that between November 2006 and October 2013 he was off work for approximately half of that time, allegedly due to his injury and associated periods of disability. The generally applicable rate of weekly income over that period can best be calculated by reference to the labouring work that he performed when with Abigroup for which he was paid approximately $960 net per week. The higher rates of remuneration referred to in the list set out above were associated with supervision jobs for which he was required to work extended hours. A weekly loss of $960 for the140 weeks that he was away from work would correspond to a total past loss $134,400.

177 However, in the circumstances of this case I consider that not all of the time during which Mr Taboas was not working is compensable as past economic loss. This is because the medical evidence reveals that well before the trial, Mr Taboas had recovered an ability to perform work on a restricted basis at least. I am not satisfied that that ability was fully exploited by Mr Taboas in mitigation of his loss at times when it could have been. I propose to allow $100,000 as an estimate of the loss sustained by Mr Taboas that is referable to his past inability to earn income by reason of his compensable injuries.

178 I note that Mr Taboas appears originally to have relied upon what ultimately became a third further amended statement of particulars in personal injury proceedings filed in the District Court on 18 June 2012. That document indicates that Mr Taboas claimed past economic loss in the amount of $91,324 "as calculated and particularised in the supplementary report of Ms K Morgan served in these proceedings." Ms Morgan's report was not tendered in these proceedings, whether intentionally or by oversight. I have not seen it in any event and accordingly have not been able to take account of anything that it contains. Neither Mr Taboas' written or oral submissions referred in any way to Ms Morgan's supplementary report. The defendants also did not refer to it.

179 Having regard to the fact that no-one has referred me to this outstanding disconformity between the particularised case and the case upon past economic loss that Mr Taboas now seeks to maintain, I propose to disregard it.

Interest on past economic loss

180 Mr Taboas claims $13,324 in interest on past economic loss "as calculated and particularised in the supplementary report of Ms K Morgan served in these proceedings." As already noted, that supplementary report did not become evidence in the proceedings. That sum therefore must be taken to have no continuing relationship to anything and I will disregard it. I will require the parties to provide interest calculations to me in due course for incorporation in the final result, calculated by reference to the sum of $100,000 that I have awarded for past economic loss.

Fox v Wood

181 Unless I am mistaken, no submissions concerning this potential aspect of Mr Taboas' case were made by any party. Mr Taboas' statement of particulars makes a general claim for damages under this head. No details permitting me to make any calculations have been provided. I will therefore also require the parties to furnish me with details of the amount to be included under this head in due course in the light of my relevant conclusions concerning past economic loss.

Future economic loss

182 Mr Taboas was born on 12 May 1981 and so is shortly to turn 33 years of age. He has an anticipated working life expectancy to age 67 or thereabouts. I accept that his pre-injury qualifications and post-injury work performance demonstrate that he had both the capacity and desire to advance in the construction industry, culminating in his job with Leightons from which he resigned in April 2012.

183 Mr Taboas submitted for the purposes of s 13 of the Civil Liability Act that the following assumptions are available upon the evidence and should be made:

1. Mr Taboas would, but for his injury, have advanced within the construction industry in the way that he has demonstrated even notwithstanding his disability.

2. He would have maintained that progress without any, or any substantial, interruption.

3. But for his injury, Mr Taboas would have retained his employment at a level of remuneration equal to or greater than that achieved with Leightons.

4. He is currently fit for only 38 hours work per week and is subject to limitations and restrictions referred to earlier.

5. Positions as a supervisor in the construction industry, such as that at Leightons, require long hours of work, so a return to such a position is not realistically within his capacities.

6. If he is able to secure employment in accordance with the type of restrictions certified by Dr Powell and Dr Maniam, it is nevertheless unlikely to be at an hourly rate paid by Leightons and is more likely to be at a rate closer to average weekly earnings.

7. Even if Mr Taboas were to secure employment at the same hourly rate offered by Leightons (approximately $35 net), he would sustain a continuing loss at that rate of 25 hours per week.

184 Mr Taboas is entitled to damages for the diminution in his earning capacity to the extent that it is or may be productive of financial loss.

185 Notwithstanding all the problems that Mr Taboas claimed he had with his back, he was able following his injury either to qualify for or renew his building certificate, his pest control certificate, his asbestos mould inspection certificate and his pre-purchase building inspection certificate. The first of those is issued under the Home Building Act 1989 and permits him independently to do building work relying upon his licence, without the need to work under the supervision of some other licensed builder.

186 It was submitted by VSL that I should treat these qualifications as coextensive or consistent with Mr Taboas' abilities to exploit them now and in the future. They are at least capable of casting doubt upon his claims of significant disability. It was VSL's proposition that whatever might have been the position in relation to the spinal lesion corrected surgically by Dr Nair, Mr Taboas has since restored himself to his preoperative condition that included the premature degenerative state identified by all doctors, for the consequences of which VSL was not responsible.

187 The difficulty with that submission is that the medical evidence on balance is against it. Mr Taboas' pre-injury condition is the condition he was in in late 2006 when he was capable of performing the span jack placement and removal work. The medical evidence favours the proposition that he could not do that work at all now. Dr Smith says that such a result was constitutional but fails in my view to come to terms with the significance of the span jack work as a precipitating factor. Dr Smith pointedly draws back from postulating the inevitability of the current disability without it.

188 VSL also pointed to job application forms prepared or adopted by Mr Taboas that contained material that was inconsistent with his claimed disabilities. As the conversation between counsel and me reveals, there is some difficulty in assessing whether such apparent inconsistencies are in fact inimical to Mr Taboas' credit or conversely consistent with attempts to do the best for himself by obtaining work that would have been denied him if a truthful response had been provided. In the end result, only a subjective analysis of the work performed in fact, or an objective assessment of his capacities by an expert, are capable of providing any real assistance in finding the truth. In the events that occurred, the defendants appear to have expended some considerable effort, not to say money, in pursuing the second option.

189 In this last respect I intend to refer to part of Ex D2-24, which is an occupational therapy assessment report tendered by VSL. It is a 43-page report dated 30 October 2012 of which Sanja Zeman B AppSc (OT) M AppSc (OH&S) is the author. This document requires some consideration.

190 Significantly in my opinion, counsel for neither defendant referred to this document at all at any stage. That may perhaps be unsurprising. This extremely detailed and comprehensive document contains a wealth of information and analysis concerning Mr Taboas' capacities and abilities in a wide range of areas. These include his work capacity. Against precisely that heading otherwise innocuously lurking at the foot of page 23 of the document is the opinion that Mr Taboas is fit for pre-injury hours (8 hours per day/ 5 days per week) but not fit for his pre-injury job and not fit for overtime. That in essence is the case for which Mr Taboas now contends.

191 Dr James Athanasou is a consultant in vocational guidance. He provided a report dated 16 March 2010. Mr Taboas tendered his report without objection. Dr Athanasou was not required for cross-examination. His conclusions were not otherwise attacked or criticised by the defendants. I consider that I am entitled in such circumstances to accept his evidence without qualification.

192 Part of Dr Athanasou's report was in the following terms:

"Vocational potential for Mr Taboas had the accident not occurred

It is impossible to predict specifically what might have been his occupational potential had the accident not occurred. Normally it is reasonable to consider that someone would continue to earn at about the level of his/her pre-accident earnings. In his case he had been employed as a construction labourer and carpenter for some years. It seems reasonable that he would have continued in this capacity or at an equivalent skill level in other occupations. His own aspiration was to become a builder and he said that if the accident had not happened: 'probably have my own business...definitely carpenter [as a] worst case scenario...'

Wages. As a guide I have listed the approximate wage rates for some potential occupations. These are based on the average weekly total earnings (gross and overtime) for full-time adult males:

Carpenter and Joiner $1206pw

Construction Manager $1977.60pw

Building Labourer $1198.20pw

...

Vocational potential of Mr taboas following the accident

It is not a remarkable observation on my part to say that he does have residual earnings potential. To his credit he has already demonstrated the capacity to return to work but it is not clear to me that he will always be able to maintain the ability to work in construction. His position as a building supervisor is not guaranteed. It would depend upon the future state of the construction industry, the nature of the work obtained by the employer and his specific duties on the construction site as well as the number of competitive contracts obtained by his employer.

If his present position was no longer available to him or if he could not continue in this capacity then he would be at a severe disadvantage in the labour market. He has already experienced a prolonged duration of unemployment of some four months before obtaining his current position.

OPINION

On the basis of the information available to me, had the accident not occurred then this man had the potential to continue in the labour force at a semi-skilled to skilled level as a construction labourer or carpenter. Moreover he had the potential and the qualifications to become a builder and eventually be self-employed.

He was engaged in highly rewarding work on large scale civil construction and building projects. He worked long hours and with allowances was able to earn at a relatively high level. He had done this for a number of years and indeed had been recontracted for different projects. It was his long-term plan to enter self-employment as a builder. He does have some short-term residual earnings capacity but it is doubtful that he will be able to maintain it throughout his career. He has lost the long-term potential, in theory, to work in a range of occupations with average weekly ordinary time earnings from $1198.20pw to $1977.60pw (gross)."

193 Regrettably, none of the wealth of evidence before me in this case adequately addresses the present value of Mr Taboas' labour in his post accident injured state. All parties have instead proceeded upon the basis that Mr Taboas can work for 38 hours per week but that his access to the fruits of longer hours are denied him by reason of his disabilities. For example, in her 28 February 2012 report, Susan Walters, an occupational therapist retained by Mr Taboas, said that "physically he can do the role; it's just the hours that exceed his tolerances." Ms Walters went on to say:

"If he could find a role that allowed his [sic, him] to do the same work but for only 38 hours per week, that would be ideal at this stage...On this basis, my opinion is that Mr Taboas, to sustain the future, should work no more than a standard week and consideration be given to compensating him for ~ 35-37% loss of earning capacity."

194 Ms Zeman indicated in her report that Mr Taboas could earn an average wage working a 38-hour week as a building associate/supervisor, construction estimator or sales representative (building/plumbing) of $1,367 pw gross. No suggestion was made to me that Ms Zeman's researches were incorrect or unfounded. She was not required for cross-examination. Correspondingly, Mr Taboas was not taken either in chief or in cross-examination to the details of those jobs for his views about whether or not they were suitable and no medical expert was asked to compare the activities and effort involved in working at these three hypothetical jobs with his or her expressed opinion about Mr Taboas' restricted capacities for work generally. I was therefore left, with what I assume clearly to have been the parties' tacit approval in the circumstances, to make certain assumptions with arguably inadequate material for the task.

195 Mr Taboas was asked by his counsel about what he planned or hoped for the future. He gave this evidence:

"Q. Mr Taboas, your future; people recommend that you leave the heavy industry. What do you want to do in the future?

A. I want to re educate myself, in something away from infrastructure. I tried to utilise my skills, because I was, whilst I was working for Abigroup I wanted to be a builder, so I was studying to be a builder at the same time, but then basically after the injury I knew that that wouldn't be an option, so the best option for me was supervising, which I attempted, and did a good job of, I thought.

But it was quite difficult for me, throughout the years,

due to I know when you say to people supervisor they automatically think, "Oh, it's quite easy," but it's a very difficult task to do. You walk kilometres through the day, up and down scaffolds, excavations, walking on steel reinforcement, uneven ground, and it's a very difficult task to maintain yourself, through that period. So I would like to get away, completely away from that, and do some studying, hopefully be able to go to university and find something that I'm happy with, and I can be successful with. I hope to.

Q. Do you have something in mind?

A. Yeah. I like stockbroking, so I would like to, hopefully, if I could study economics, that might lead me to some type of financial planner, something in relation to that that I could learn a bit better on.

Q. Have you looked further into it than what you've just told us now?

A. I have looked at a few university courses. It's more like a full time basis, it would be approximately four years. I don't think I think could do it on a full time basis, but it's something that I do have an interest in, and it's an option for me, so I don't know where I will go with it but it's something that I would like to possibly pursue."

196 I have no doubt that Mr Taboas has suffered a loss of the capacity to earn income in the future and that the loss will be permanent. Whether or not he is able to retrain in some fashion that obviates or reduces that loss is uncertain. Mr Taboas appears to be well motivated, as his additional studies and vocational achievements reveal. Determining what is or may be the precise relationship between that motivation and any tangible economic returns to him is more difficult to assess.

197 Because Mr Taboas is restricted by reason of his injury in the hours of his work and the scope of his work, it follows that he has sustained a compensable economic loss. Doing the best I can, it seems to me that, having regard to his weekly net income at Abigroup, and to his temporarily demonstrated but unsustainable potential for supervisory work over long hours with subsequent employers such as Interprojects, Arenco and Leightons, Mr Taboas has sustained a net weekly loss of income in the order of approximately $300 per week. That sum represents an estimated difference between his current earning capacity and his potential earning capacity as a supervisor in an uninjured condition. I am not satisfied, having regard both to his actual present capacities and to the average salary of $1367 gross per 38-hour week referred to in the Zeman report for a building associate/supervisor and other positions, that a claimed loss of $875 net per week is maintainable. It is not supported by any satisfactory or available comparison between Mr Taboas' pre- and post-injury earnings.

198 In my opinion it is only possible upon the evidence in this case to approach the quantification of Mr Taboas' future losses upon a "best estimates" basis. Attempts to achieve scientific or arithmetic precision are as transparently fragile as they are misleading. Approaching the matter in that way, Mr Taboas has suffered an ongoing weekly loss, which I have assessed at $300 per week net for the remainder of his working life. Calculations based upon a loss at that rate over a period of 34 years to age 67 at a five percent discount rate with a multiplier of 865.9 produce a sum of $220,805 after adjustment for vicissitudes. I propose to award Mr Taboas that sum for his future economic loss.

199 I observe in particular that in expressing my views on this issue I have had regard to the opinion of Dr Marsh, Dr Buckley and Dr Athanasou in their rehabilitation experts conclave joint report dated 13 September 2013 that "taking account his current pain and psychological state and prolonged period off work [Mr Taboas] is probably unemployable on the open labour market." That view bears no relationship to the claim made by Mr Taboas for future economic loss in the oral submissions made on his behalf. It is potentially redolent of the way the claim is particularised in the formal statement of particulars filed in the District Court on 12 June 2012, but it is also in conflict with both the uncontested opinion of Ms Zeman to which I have drawn attention, as well as - somewhat curiously - the individual views expressed by Dr Athanasou, cited above. I am not satisfied that Mr Taboas is unemployable on the open labour market, which I trust is otherwise apparent from the matters to which I have referred. The suggestion of total unemployability is also inconsistent with the assumption that Mr Taboas himself asks me to make, that he is currently fit for 38 hours of work per week subject to certain physical restrictions or limitations.

200 I note once again in passing that Mr Taboas has particularised a claim for $999,642 for future economic loss "calculated on his most recently [sic] net weekly income of $1,600 increased annually with the CPI as particularised in the supplementary report of Ms K Morgan served in these proceedings." That claim bears no resemblance to the one referred to in written and oral submissions made on Mr Taboas' behalf on the issue of future economic loss. I remain uncertain whether Ms Morgan's supplementary report was intended to become part of Mr Taboas' case but I propose to ignore references to it entirely in the circumstances.

Loss of past and future superannuation

201 Mr Taboas is entitled in rounded terms between 2006 and 2013 to the average of ten percent of the gross equivalent of his net past economic loss. He is also entitled to eleven percent of the gross equivalent of his net future economic loss. I will require the parties to agree upon the arithmetic to produce a sum for inclusion under this head following the answer to queries I have flagged that still need attention.

202 In particular I note that Mr Taboas has claimed $138,763 under this head "as calculated and particularised in the report of Ms K Morgan served in the proceedings." Just as with the supplementary report, the earlier report of Ms Morgan has not made its way into the evidence in this case, and I propose to disregard all references to it.

Domestic assistance

203 Counsel for Mr Taboas expressly disclaimed any case for gratuitous assistance during submissions on the last day of the hearing.

204 A claim for paid domestic assistance was pressed upon the basis that Mr Taboas paid for someone to mow his lawns. That claim was formulated at the rate of $30 per week over a 25-year period, rounded as a matter of practical convenience to $20,000.

205 I have accepted that Mr Taboas will suffer economic loss as the result of his injuries. That is a conclusion based upon the not unreasonable assumption that any notional employer might ordinarily be expected to demand regular attendance at work for continuos and unbroken periods of labour. That is to be contrasted with the opportunistic nature of domestic tasks that can be accommodated to personal preferences. Those preferences include in the present case the occasions when Mr Taboas is capable of performing physical work to suit himself, much in the nature of what is depicted on the film of him working with his father. I have no doubt that Mr Taboas will be sufficiently fit from time to time throughout his remaining years to attend to the care of any lawn for which he is or becomes responsible. His personal and domestic tasks, including handyman tasks, are not in my view ever likely to be or to become more onerous, more burdensome or more physically demanding than the ones performed by Mr Taboas and surreptitiously recorded on film.

Past treatment and out-of-pocket expenses

206 Past treatment expenses have been agreed at $33,692. That includes an agreed estimate of $5,000 paid on Mr Taboas' behalf for medication.

Future treatment expenses

207 Mr Taboas contended that in assessing future treatment expenses, I should have regard to the fact that he recently embarked upon a rehabilitation course and consulted a neurosurgeon. Mr Taboas concedes that he cannot point to a specific mode of treatment as a result of these steps that may result in expenses in the future. No medically indicated treatment is specifically referred to in the expert material that is in evidence, apart from a passing reference to general practitioner consultations and occasional physiotherapy. Ms Zeman has made the observation in her report that Mr Taboas was not then currently receiving any physiotherapy and expressed the opinion that "his requirement for ongoing physiotherapy is not indicated."

208 Mr Taboas submitted that an allowance should be made for several medical reviews per annum by a general practitioner as well as occasional specialist reviews and prescription medication for pain relief. A sum of $50,000 is claimed representing a discounted annual amount over Mr Taboas' life expectancy of 52 years.

209 The medical evidence does not satisfy me that Mr Taboas is currently in receipt of any necessary ongoing medical care. That is not to say that the need for such care or assistance will not arise from time to time. Mr Taboas will, statistically at least, also have the need to attend upon doctors for medical concerns unrelated to this claim. It does not appear to me to be likely that he will require care for matters related to this case of the order suggested in submissions. Doing the best I can it seems that a lump sum of $20,000 ought to be adequate and sufficient to take account of costs associated with such care.

210 I observe that in forming my views on this issue I have had regard to the opinion of Dr Marsh, Dr Buckley and Dr Athanasou in their rehabilitation experts' conclave joint report dated 13 September 2013.

Conclusion

211 While some of the components of the total damages calculation remain unquantified, it is not yet possible to state the final sum to which the s 151Z calculations will necessarily need to have regard.

Employer damages

212 Section 151G of the Workers Compensation Act provides relevantly as follows:

"151G Only damages for past and future loss of earnings may be awarded

(1) The only damages that may be awarded are:

(a) damages for past economic loss due to loss of earnings, and

(b) damages for future economic loss due to the deprivation or impairment of earning capacity."

213 With respect to the operation of s 151Z(2)(c) the first issue in every case is whether the plaintiff has a permanent impairment of at least 15 per cent within the meaning of s 151H: see Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111. If a plaintiff does not, then no damages can be awarded against the plaintiff's employer and a non-employer defendant can reduce the damages that it pays to the plaintiff by the whole of whatever percentage contribution the employer's culpability would produce pursuant to s 5(1)(c). As discussed earlier, there is no issue that Mr Taboas has satisfied the terms of s 151H of the Workers Compensation Act.

214 In this case, subject to the application of s 151Z of the Workers Compensation Act and the equal apportionment of damage between the defendants in accordance with my findings pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, Mr Taboas is entitled to recover from Abigroup the sums that I have found in respect of damages for past economic loss, Fox v Wood (when assessed), damages for future economic loss due to the deprivation or impairment of earning capacity, as well as past and future superannuation (when assessed).

Conclusions and orders

215 As will be apparent, some further assistance from the parties is still needed before the final sums can be determined and before the respective monetary liabilities of Abigroup and VSL are known. I will therefore require the parties to carry out the necessary calculations and bring in short minutes of order in due course to reflect the orders that should be made in the light of my findings and conclusions. I will also hear the parties on the question of costs, if required.

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Decision last updated: 31 January 2014