Supreme Court New South Wales

• Medium Neutral Citation: Hennessy v Patrick Stevedores Operations & Anor [2014] NSWSC 1716
• Hearing dates: 3-6 June 2013 and 29-30 August 2013
• Decision date: 02 December 2014
• Jurisdiction: Common Law
• Before: Campbell J

Decision

See [202]

• Catchwords: TORTS - negligence - workplace injury - occupiers liability - where employee slipped and fell at worksite - whether occupier owed duty of care - whether employer owed duty of care
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5E and 5R; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5; Workers Compensation Act 1987 (NSW), ss 151H and 151Z
• Cases Cited: Australian Safeway Foods Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520; Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356; Fox v Wood (1981) 148 CLR 438; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; March v E & MH Stramare [1991] HCA 12; 171 CLR 506; Morawski v State Rail Authority (NSW) (1988) 14 NSWLR 374; New South Wales Insurance Ministerial Corporation v Wynn (1994) Aust Torts Reports 81-304; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3DDCR 1; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Sungravure Pty Ltd v Meani (1964) 110 CLR 24; Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161.; Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234; TNT Australia Pty Limited v Christie [2003] NSWCA 47; 65 NSWLR 1; Vairy v Wyong Shire Council (2005) 223 CLR 422; Wallace v Kam [2013] HCA 19; 250 CLR 375; Wyong Shire Council v Shirt (1980) 146 CLR 40
• Category: Principal judgment
• Parties: Shane William Hennessy (Plaintiff); Patrick Stevedoring (First Defendant); FBIS International Protective Serivces (Aust.) Pty Ltd (Second Defendant)
• Representation: Counsel: AJ Lidden SC with PM Khandhar (Plaintiff); TGR Parker SC with D Talintyre (First Defendant); R Harrington(3-6 June) and P Perry(29-30 August) (Second Defendant); Solicitors: Brydens Lawyers (Plaintiff); Piper Alderman (First Defendant); Goldbergs Lawyers (Second Defendant)
• File Number(s): 2009/335823

Judgment

1 I apologise to the parties for the long delay in giving this judgment.

2 The plaintiff, Mr Hennessy, claims damages for personal injuries received by him in the course of his employment on 21st March 2005. He sues the first defendant, which I will refer to as Patrick Stevedores, the occupier of the premises, and the second defendant, which I will refer to as FBIS, his employer.

3 Patrick Stevedores occupies the container terminal at Port Botany from which it carries on its stevedoring operations. FBIS provided security services at the site. Those services were provided under a written security services agreement executed on behalf of Patrick Stevedores and FBIS on 10th October 2003.

Issues

4 There is no issue about the occurrence of Mr Hennessy's accident. There is an issue about how and why it happened, although it must be said this issue was just as much about the reliability of Mr Hennessy's recollection as it is about substantive issues.

5 Liability is disputed. Neither Patrick Stevedores nor FBIS accept legal responsibility for what occurred. In respect of Patrick Stevedores there is some issue about the nature of the duty it owed Mr Hennessy as the employee of a subcontractor on site. Mr Hennessy argues that the duty is akin to an employer's duty as discussed in TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1. Patrick Stevedores says its duty is what I will call a bare occupiers duty of care in relation to the condition of the premises. Moreover, it argues that the terms of the security services agreement were such that by necessary implication, not expressly, it had lawfully delegated the duty it owed Mr Hennessy to FBIS.

6 FBIS denies that it is Patrick Stevedores' delegate. It acknowledges the non-delegable duty of care it owed Mr Hennessy as his employer even in respect of work performed on premises occupied by another. But it says the matters complained of by Mr Hennessy as constituting negligence have not been shown to have caused his injuries and accordingly his claim must fail. It also argues that as between it and Patrick Stevedores, if both are liable, Patrick Stevedores' share of the blame is greater.

7 There are particular issues about quantum. There is no doubt that since the accident, Mr Hennessy has undergone three major spinal operations on his lower back having very significant effects upon all aspects of his ordinary activities of life. There is no issue that the degree of whole person impairment resulting from the injury was "at least 15 per cent" (in fact greater), making him eligible for work injury damages if otherwise entitled s 151H Workers Compensation Act 1987 (NSW).

8 However, it is also very clear on the evidence that Mr Hennessy had ongoing back trouble of some significance for years before March 2005. He also had other health problems including some pre-existing mental issues as a juvenile. His back trouble commenced with a work injury some years earlier. That injury happened when he was working as a storeman in the pharmacy at St George Hospital on 2nd January 2002. Mr Hennessy said in evidence that he largely recovered from this injury within a matter of months with only the occasional ongoing "niggle". But by cross-examination on contemporaneous medical records pre-dating March 2005, he was shown, so far as his evidence before me was concerned, to be, to say the least, an abysmal medical historian. This issue has an effect not only on what one makes of his reliability on quantum issues, but also on how that impacts on the liability issues because obviously his case depends in part upon what I make of his evidence.

What happened.

9 Many facts are not disputed and I will provide a narrative of them. As at 21st March 2005 FBIS worked out of a gatehouse at Gate B113. The gatehouse was a demountable hut supported by steel beams fixed to the underside of its floor. Whether it was chocked by anything else is not agreed.

10 The actual hut is depicted in Exhibit F1-6, a series of photographs taken in 2009, some four years after the incident. By then the hut had been moved to a new location and is different in some other important respects which I will detail as I go.

11 The accident happened at 10:40 pm. 21st March was a rainy night. The rainwater puddled in depressions and in some areas there was mud or grime from construction, or demolition, work underway, which would stick to the plaintiff's work boots. His duties on this evening consisted of conducting mobile patrols in a ute, returning to the gatehouse at the end of each patrol. He had completed a patrol just before the accident. He walked from his parked ute to the gatehouse in the rain. The defendants tacitly accept that he was not hurrying. But it is likely, as they submit, he was "not dawdling either". Unlike the scene depicted in Exhibit F, the area below the entrance to the gatehouse was wholly paved. In its then location, it was not positioned over a concrete apron as depicted in Exhibit F immediately in front of the doorway. From the evidence, the pavers were probably like those shown to the left of Exhibits F1 and 3. The plaintiff says that the pavers immediately below the doorway had subsided and on this night water had puddled in the place where a person stands prior to entering the hut.

12 As depicted in Exhibit F, the door opened outwards, and it was closed because of the rain as the plaintiff approached it. Unlike what is depicted in Exhibit F, there was no awning over the doorway so it was completely exposed to the weather. I interpolate, because something was made of this in argument, that the angled awning over the side window depicted in Exhibit F4 was fitted as at March 2005 and contractors attending the gatehouse to complete paperwork for entry, or the like, would present at the side window and stand under the awning for protection from the weather.

13 Importantly, on 21st March 2005 there was no step between the ground and the door-sill. The awning and the step were added a few days after the plaintiff's accident by Patrick Stevedores.

Evidence about the height of the step

14 It is probable that the door-sill was higher off the ground in its former location than as shown in Exhibit F. This is a critical part of the Mr Hennessy's case. But there was no precise evidence about the height. In his evidentiary statement (Exhibit A), he estimated that the hut "was raised approximately one and a half feet off the ground on blocks"; translating, I think, into about 45 to 50 centimetres. If this is right, this is a fair "step up". In chief he said approximately 14 to 15 inches (5.10T); not quite so high.

15 As I said, the plaintiff's case is that "the step was higher than a normal step" (136.30T). However, the plaintiff had never measured its "exact dimensions" (136.10T) and there is some contrary evidence. In his evidence-in-chief, Mr Martin Taylor, who was Patrick Stevedores' Operations Co-Ordinator at the container terminal in March 2005 (Exhibit E and Exhibit 1D1), said that the demountable hut sits on longitudinal steel beams which are affixed to the underside of its floor. When it is moved these beams simply sit on the existing surface. I interpolate that there may have to be adjustments of some kind to take account of any ground sloping even to a small degree. Mr Taylor did not remember there being an intermediate step going into the gatehouse, but he did not remember "a significant step up" and said "it was much lower" than Mr Hennessy's estimate. He couldn't remember its height but thought it no more than a normal step.

16 In cross-examination (224.30 - 225.45T) Mr Taylor said that as depicted in Exhibit F, the hut is located next to the administration building at Gate B105A. It was then used by Patrick Stevedores for storage (he thought). He agreed that the height of the hut is adjustable in the sense that the longitudinal steel beams could be placed on blocks. He also agreed that the side awning, if I may put it that way, appears lower than it was in 2005. He agreed as shown in Exhibit F, a person taller than "about 5 feet 10" would "have to duck the head" to get to the counter under the awning. It was not suggested to him his evidence about the height was wrong.

17 In 2005 Ms Leonia Gaye Picone was a shift supervisor employed by FBIS. She was Mr Hennessy's boss on the shift in question. Her statement of 6 December 2010 is Exhibit 1D2. She said that security "were always changing around from different gatehouses due to the construction that was going on". They had been using the hut just inside gate B113 for several months. She described the step up "as a little higher than a normal step". She is 161cms tall and said she did not have any difficulty stepping into or out of the hut. She considered the intermediate step fitted a few days after the accident "was unnecessary because it made the steps into the demountable too shallow". She repeated this evidence orally (243.30T). The steps was "slightly higher" than a normal step (245.10T).

18 In cross-examination she re-iterated that the step was higher than normal, but she could not say how much higher (260.50 - 261.5T). She agreed as depicted in Exhibit F "the floor of the hut ... is substantially lower than it was in the position where it was in March 2005" (263.35T). She was unable to answer questions about the side awning because she only worked nightshifts and no visitors were admitted by attending the side window at night.

The plaintiff's fall

19 Having reached the entry door to the gatehouse, the plaintiff was below the threshold, standing in the puddle in the depression and opening the door. He stepped up onto the door-sill with his right foot and as he was in the process of lifting his left foot to carry it through his right foot slipped under him and he fell heavily onto the gatehouse floor.

20 He says that he fell because his foot slipped on the smooth metal door-sill which, like his boot, was wet, and perhaps muddy, from the rainy weather. The area "was soaked" from the rain and may have been muddy.

21 There are issues about the mechanism of his fall. First it is effectively put, that what the plaintiff says about his foot sliding sideways on the door-sill does not make sense. Secondly, his description of the construction of the door-sill is different from that depicted in Exhibit F and is unlikely to be accurate, even allowing for the effluxion of time between the accident and the photos being taken. Mr Hennessy described a flat piece of metal folding over the threshold and down the face of the door-sill, rather than the ridged sill and doorjamb shown in Exhibit F. Thirdly, Ms Picone who was not present at the time of the fall, but who arrived at the hut soon after says she saw a skid mark on the linoleum floor. This is said to be inconsistent with the plaintiff's account, and calls into question the case that he slipped on smooth metal contaminated by muddy water.

22 In order to resolve these issues, not all of which are critical to understanding what happened, it is necessary for me to make some findings about Mr Hennessy's reliability as a witness.

Mr Hennessy's reliability as a witness

23 As I have already indicated there is no longer any question that Mr Hennessy, when one has regard to the contemporaneous medical records, is an abysmal medical historian. This has an effect upon his overall reliability as a witness because it seems to me improbable that a person would forget some of the details that he professed not to remember,r or was not sure of.

24 By the conclusion of the evidence, it was common ground that the plaintiff's history of receiving an injury in 2002, from which he had recovered within a few months with only an ongoing occasional niggle could not be accepted. Much of the cross-examination about that centred on the history he had given to a Dr Diwan, an Orthopaedic Surgeon, whom he saw at Kogarah on 20th January 2005, just two months before the accident. The long and the short of all of this is that the significant pathology attributed in the plaintiff's case to the fall in March 2005, a disc protrusion at the L4/5 level may have been substantially pre-existing and causing him very significant problems for nine months before the accident. It is well to detail some of it now.

25 He saw a Dr Lim, radiologist, on referral from his GP on 8th June 2004 for the purpose of a CT scan of the lumbo-sacral spine. The history was of chronic low back pain occurring after the lifting incident in January 2002. There was a record of x-rays of 4th January 2002 demonstrated a left pars interarticularis defect at L5, which on the evidence before me is a developmental abnormality which when unilateral, rather than bilateral, as it was here, may not be of any particular significance. X-rays were taken again in February 2004 suggesting ongoing problems which demonstrated disc-narrowing at L3/4 and an upper thoracic scoliosis. The CT scan demonstrated "a far left lateral disc protrusion on the left" L4/5. This "effaced" the exiting L4 nerve root sleeve. Dr Lim found no evidence of any "pars defect". A bone scan taken on the same day by a Dr Beuzeville was reported as showing "no focal abnormalities".

26 As I have said when cross-examined about the events of June 2004 (57.50 - 58.20) he said he couldn't remember what he told the doctors. He accepted his back was hurting but he did not remember what pain he was feeling or how bad it was. When it was explained that chronic meant "happening over a long period of time" rather than severe, as he apparently thought (eg 134.25T), he denied that his pain was chronic at that time. He said he would get "spots of pain". He was then asked about an incident that happened gardening towards the end of 2004. His immediate response was "Garden? Where?" When told at home he answered "At my home?" When that was confirmed he said:

I think I had a bit of a twinge from that, yeah, yeah. (59.5 - .25T)

27 He struck me as a little evasive. He didn't accept he went to the doctor because he had severe pain, but rather he went because as he had some pain "[He'd] rather be safe than sorry" (59.30T). He took medication, not because he needed it, but because the doctor prescribed it. He would only take it if a doctor asked him to (59.37T). When asked if it was safe to assume that he was experiencing "severe pain" he said "no". He specifically rejected the use of the word "severe" notwithstanding his initial understanding of "chronic" (60.10T). He agreed that he was referred to a specialist for his back pain who turned out to be Dr Diwan. However, the following exchange then occurred:

Q. And you went to see a doctor at the St George Hospital, correct?

A. St George Hospital?

Q. Yes?

A. No, I don't remember that. Was this

Q. It was a doctor called Dr Diwan. Do you remember that doctor?

A. No.

He maintained this denial throughout. Even after he'd been taken through the circumstances of the consultation "chapter and verse"(127.30T - 128.35T). He did not remember seeing Dr Diwan even though he had a map showing the way to his rooms provided by his GP (Ex2D1). He maintained that he didn't remember seeing Dr Diwan and indeed eventually said he had no recollection of seeing any specialist in about January 2005 (128.30T).

28 He did not remember being sent for an MRI scan which was carried out on 4th February 2005, although he agreed such procedures were memorable (127.15T).

29 He was shown a five page document which was the questionnaire about his condition he answered for Dr Diwan. Initially (60.45T), he agreed it was filled out by him in his own hand for the purpose of giving the doctor "an accurate understanding of [his] symptoms" (61.10T). Notwithstanding the document's plain language he said it merely described how he was feeling at the time he filled it out. He then said he could not recall having filled it out (63.45T). He insisted that what is recorded represented a temporary flare up from which he had fully recovered before March 2005. He said when he filled out the form his back condition may have been limiting him, but it was fine before the accident. "It got better" (69.30 - 70.30T).

30 From Dr Diwan's questionnaire, Mr Hennessy was suffering back and buttock pain every day as well as leg pain and the alteration of sensation in his foot, sometimes. Again, he attempted to explain this by saying "when I filled this out", meaning only then. He also had neck and arm pain. His problems started with the injury in 2002. He rated his lower back pain on the visual analogue scale as 7 out of 10. The pain was disturbing his sleep, he had stiffness in the mornings, and he was worse at the end of the day.

31 I think it important to set out Dr Diwan's understanding of the history he was given by Mr Hennessy. His symptoms had been persistent and present most of the time since the injury on 2nd of January 2002 ."They are extremely bothersome and he rates them at 7/10 on a visual analogue scale. His pain charts are precise. Occasionally he states his pain travels down his left ankle and knee". The most significant clinical finding recorded by Dr Diwan was "an excruciatingly painful restricted backward extension". There were no neurological signs in the lower limbs. Dr Diwan's diagnosis at that time was of "a pars defect at L5". This was based on the x-ray of February 2014. It is clear that Dr Diwan did not have access to the more sophisticated scans showing the disc lesion.

32 Mr Hennessy saw Dr Diwan on 20th January 2005. On 13th January 2005 he lost a shift at work "due to chronic lower pain"(his words). The back was so bad he was unable to even attend the doctor to obtain a certificate (Exhibit 2D2). Dr Diwan referred Mr Hennessy for an MRI scan which showed some dehydration in the discs of L3/4 and L4/5 and also:

At L4/5 there is a left foraminal disc protrusion, with mass effect on the L4 nerve root in the foramen. There is no central stenosis.

I would understand this as being broadly the same pathology as described in the CT scan of June 2004.

33 It is also part of Mr Hennessy's case that because of the accident on 21st March 2005 he has been forced to give up his previous sporting interests such as baseball and horse riding. It was put to him that "that evidence just wasn't true" (67.22), a proposition Mr Hennessy disputed. After the accident he was referred to a Dr George Pitsis, a sports physician for treatment. He remembered seeing that doctor although he was vague about the details (67.35 - 68.40T). In his report of 14th June 2005, Dr Pitsis records a history of back pain starting in a "short lived incident" in 1997, shifting rocks. In 2002 Mr Hennessy "had more severe onset of lower back pain following bending over and picking up a box". There was some left radicular pain at the time. The condition settled over a period of months. However, Mr Hennessy had "never been 100 per cent". The incident of 21st March 2005 resulted in "very severe lower back pain" with associated radicular pain bilaterally, worse on the left. Dr Pitsis also recorded this history:

In the past he has enjoyed playing baseball, horse riding, jogging and martial arts, but has been unable to do this in the last three years due to his lower back pain. (Emphasis added).

34 Mr Hennessy was also cross-examined to show that he had not given a complete history to the doctors he had seen for treating and medico-legal purposes following the injury of March 2005. In particular, he did not accurately tell the doctors that he had chronic, sometimes severe back pain with symptoms in his left leg before the accident. These doctors included Dr Davies, ultimately the operating surgeon, Dr Barrett, Dr Michael Fearnside, Dr Michael Gliksman and Dr Schutz, the last of whom gave evidence before me. I find that none of these doctors received the full history recorded in the contemporaneous pre-accident medical records. Mr Hennessy denied that he deliberately attempted to mislead the doctors about the history: 126.20 - .50T.

35 I should say again, that Mr Hennessy at times appeared evasive during cross-examination. He could not remember things that one would normally expect a person to remember, and he very frequently answered questions with questions as though playing for time. It may be that he simply did not follow the questions, but they seemed plain enough to me (132.45 - 133.5T).

36 I also record that his mother gave evidence, principally to support a claim for voluntary domestic assistance. In her statement, Exhibit G, she supported Mr Hennessy in his evidence that he was physically active including playing baseball before the accident. She said prior to the injury he did much housework and when he was working for FBIS "he did even more" than he had previously. She was not asked any supplementary questions in chief in the light of the cross examination about the previous medical history. In cross-examination she acknowledged "he had niggles to his back, but he was still a normal active adult" (168.35T). When asked about the treatment and investigations he was undergoing from mid-2004 to the early part of 2005, she did not answer the question directly but said having had niggly problems herself growing up she saw it as a normal procedure (172.5T). She gave evidence that he ceased baseball when he took up the security work (172.45T) apart from the occasional game on the weekend if he was not rostered on. Mrs Hennessy worked fulltime and had limited opportunity to observe her son when he was working nightshifts for FBIS. She felt that he was doing most normal things after 2002, although his back would hurt occasionally for a week or so and then settle down (174.50 - .25T).

37 Mr Hennessy's mother's evidence is largely supportive of him. But the evidence of both of them about the pre-existing condition is inconsistent with the contemporaneous documents which pre-date 21st March 2005. Moreover, it is largely inconsistent with the probabilities. I think it unlikely that the family GP, Dr Brookes, would refer Mr Hennessy for sophisticated investigations and specialist reviews unless there was an ongoing problem of real significance which was likely to be assisted by definitive treatment. One can accept the various forms of radiology to which Mr Hennessy was subject are diagnostic aids. But one would also expect that a doctor would refrain from suggesting them unless there was a point to it. An occasional niggle lasting for a week or so which settles down doesn't fall into that category.

38 Mrs Hennessy's recollection for detail of the medical treatment sought by her son was vague and she had forgotten about his complaints of radiating leg pain (172.35T; 175.20T). But nobody suggested she was deliberately attempting to mislead me.

39 It was certainly put to Mr Hennessy in the most direct terms that he was giving untruthful evidence for the purpose of deliberately misleading me. These questions were well founded having regard to the inconsistencies with the contemporaneous evidence. However, I do not accept that Mr Hennessy was baldly lying to me. He did create an unfavourable impression in many ways. At the same time he did seem to be in obvious pain from time to time. Since the accident of 21st March 2005, as I have recorded he has undergone spinal surgery on three occasions, which do not seem to have been successful. It might be natural, psychology being what it is, for him to have focused on that injury as the cause of all his woes. It should also be said that he does not seem to have followed up with Dr Diwan to receive any treatment from him after the MRI scan of 4th February 2005. This is consistent with there being a lack of urgency about the need for treatment.

40 Overall, I found Mr Hennessy to not be dishonest but unreliable about important details in the medical chronology. This unreliability, I conclude arises out of an anxiety to pin his woes on the accident of 21st March 2005. And for that reason the unreliability affects his evidence generally. Such that where it conflicts with the evidence of other witnesses who seem reliable, contemporaneous documents or the probabilities suggested by the circumstances I will not rely upon it.

The "cause" of the accident

41 Mr Hennessy says four things contributed to him falling on 21st March 2005 in the wet conditions then prevailing. First, the absence of an awning over the doorway; secondly, the height of the step-up, which as I have said he estimated to be 45 - 50 centimetres; thirdly, perhaps in the alternative to the second consideration, the absence of a grab rail to assist with his entry into the gatehouse; fourthly the flat metallic covering of the door-sill meant he had to step on to its smooth wet surface.

42 Of these, it is not in issue that there was no awning, and that the awning depicted in Exhibit F was fitted within a few days of his accident. As can be seen from the photographs that awning is fixed to the flat roof of the hut some distance, which was not proved in evidence, above the entrance. Looking at Exhibits F1 and F4, and allowing for the limitations of photographs, it seems to be in a horizontal plane, the angled awning shown in Exhibit F2 seems to be at the back of the hut. There is clearly no grab rail and there is no issue about that. The evidence did not make it clear where the grab rail could be installed, but there was probably sufficient space between the right of the entrance and the window. However, there is no evidence about this.

43 I accept the absence of the awning and the grab rail.

44 I am not satisfied that the evidence is such as to permit me to make an accurate finding about the height of the door-sill above the ground, even allowing for the consideration that there may have been a depression in the pavers below. As I have recounted above, Mr Taylor did not accept that the height was as great as estimated by Mr Hennessy. Properly understood his evidence may allow for a conclusion that the height was greater than "normal", especially if one considers what he said, such as it is, about adjustability, and about the "lowness" of the side awning. It is probable that the door-sill as at 21st March 2005 was higher than depicted in Exhibit F. But there is no evidence of the height in Exhibit F and it is impossible to draw an inference about it. As a step has been fitted in Exhibit F, I infer that Patrick Stevedores considered one was necessary in the location depicted in Exhibit F.

45 Ms Picone's concession that as depicted in Exhibit 5, the threshold is substantially lower than it was when Mr Hennessy fell is worth something, but it does need to be borne in mind that she is 161 cm. Her evidence at 243.40T should also be borne in mind.

It was a high step like into the demountable. It was higher than normal, but it wasn't hard to get into it, ...

She found it more awkward when they fitted the intermediate step.

46 The following evidence of the plaintiff should be recorded (136.25T - 137.15):

Q. And was there any verandah, or when you stepped into it, did you step straight into the gatehouse?

A. You stepped straight into the gatehouse.

Q. And at the door, at the base of the door, what was the flooring?

A. The threshold?

Q. Yes, the threshold?

A. It was just like a shiny tin.

Q. And you say that the step was higher than a normal step?

A. Yes.

Q. You have never measured it?

A. No, I didn't get down there with a tape measure.

Q. And you had stepped in and out of the gatehouse on many occasions?

A. Yes.

Q. And you had no difficulty just stepping in to the gatehouse on the occasions that you stepped into it?

A. No.

....

Q. As you walked towards the gatehouse, you would just step normally into the gatehouse as you would step on to a step?

A. No, you had to step up higher.

Q. But you didn't have to grab hold of anything to lever yourself up or anything of that nature?

A. There was nothing to grab hold of.

Q. No, I accept that, but you didn't need to do that?

A. No, you just had to step up a bit higher than you would a normal step.

47 There is other contemporaneous documentary evidence. An FBIS incident report completed by Ms Picone on 22nd March 2005 described the incident as follows:

At approximately 10:40 p.m. on Monday 21st March 2005, Shane Hennessy arrived back from a mobile patrol. It was cold and raining. He stepped up to enter Gate B113 when he slid on the metal strip at the foot of the door. (My emphasis)

The document also records that a co-worker, a Ms Vicky Garatoudi was present in the gatehouse and said to be a witness. Ms Garatoudi was not called by any party. Mr Hennessy's workers compensation claim form of 23rd March 2005 describes his incident "slipped when stepping up into gatehouse". A second claim form dated 5th April 2005 is in the following terms:

Slipped on wet step when stepping up into the gatehouse. (My emphasis).

Both claim forms record that Ms Garatoudi was a witness.

48 I accept the required step to enter the gatehouse was "higher than normal". The phrase "stepping up" appearing in the incident report and the claim forms is highly suggestive of extra reach, if I may put it that way, being required. Keeping the provisions of s 5C Civil Liability Act 2002 (NSW) at the front of my mind, the evidence from Ms Picone that Patrick Stevedores installed a step within a view days supports the inference that the necessary step up was greater than normal. But the evidence falls short of satisfying me about the precise height. The finding I have made about Mr Hennessy's reliability leads me to reject the estimate in his evidentiary statement prepared for the purpose of the case.

49 If it matters, and I think it matters not much, I reject Mr Hennessy's description of the flat smooth folded metallic door-sill. In my judgment the probabilities favour the construction of the door-sill according with what is depicted in Exhibit F which I have described as a ridged arrangement incorporating a lower external door-sill forming part of the external doorframe and a higher and somewhat narrower internal door jamb against which the door closed. Mr Hennessy was further cross-examined quite extensively (and not ineffectively) (164.30T) about this matter of detail after Exhibit F was located and tendered. During the course of this cross-examination, Mr Hennessy's higher than the normal step developed into "a lot higher" (152.15) and I do not rely upon that in coming to the conclusion I have already expressed.

50 It just seems improbable that there would have been an extra piece of metal covering the external frame and the closed door. Moreover, it seems improbable that it would have presented as a flat shiny piece of steel when one looks at the configuration of the external door frame and the slightly smaller internal door jamb. Indeed their juxtaposition and relativities strikes me as an entirely conventional construct. As I have said, I accept that the door-sill was as shown in Exhibit F as at 21st March 2005.

51 However, as I have said, this does not matter much. If one was stepping up higher than normal, one might just as readily place one's foot on the ridged door-sill as on the flat metal arrangement described by Mr Hennessy.

52 This leads to a final point arising out of the lay evidence and that is Ms Picone's evidence about a skid mark on the linoleum floor. I reject her evidence about that. It is not mentioned in her evidentiary statement, it was not elicited as oral testimony in chief and when it came out in cross-examination she was being asked about the presence of water and mud on the floor. She was asked a general question about whether she remembered the condition of the linoleum just inside the doorway. She said "there was a mark where he had slipped" (256.10T). The statement is also inconsistent with the contents of the incident report prepared by her (Exhibit B) where she states "he slid on the metal strip at the foot of the door".

Finding about injury

53 I find there is nothing improbable about the circumstances of the injury as described by Mr Hennessy. As Clarke JA observed in Morawski v State Rail Authority (NSW) (1988) 14 NSWLR 374 at 386 "falls are unexpected and occur very suddenly so that people are not usually clear in their mind as to the precise nature of the fall".

54 In the circumstances as I have found them to be, it seems to me that the exposed entry to the gatehouse was very likely to be wet in the weather conditions then prevailing. The door-sill is constructed of relatively smooth metal. It is highly likely to be wet either by people coming and going; simply by the action of the plaintiff opening the door outwards; or the soles of his boots may have been wet due to the conditions in which he conducted his mobile patrol.

55 I think it a matter either for judicial notice, or at least within the common experience of an ordinary member of a jury, that wet, smooth metal is likely to be slippery. In circumstances where Mr Hennessy was required to reach up with his foot to a height greater than that normally provided by steps, even if they may vary somewhat, it seems probable that he would place his foot on the door-sill to propel himself forward into the gatehouse. Especially as there was nothing, such as a rail, to hold to assist with the entry by steadying oneself during that moment of disadvantage when the following foot leaves the ground to complete the step into the gatehouse. At that moment of disadvantage there is nothing inherently unlikely about the idea that the right foot providing the only point of contact between him and the stable structure could move under the ordinary biomechanical forces exerted by a walking person; at least this is so where the metal door-sill was wet and slippery. I find this is what probably happened.

56 If the mechanism of Mr Hennessy's fall is as I have described it in the preceding paragraph, and as by all accounts he was a tall, heavy young man (so much is borne out from what I saw in the witness box,) he probably fell very heavily to the floor, suffering some injury.

The liability of Patrick Stevedores

57 As I have said, Mr Hennessy argued that Patrick Stevedores owed him a duty of care of the type discussed in TNT Australia Limited v Christie (2003) 65 NSWLR 1. In effect, his argument was that FBIS was providing labour to Patrick Stevedores to perform security work and that the totality of the relationship between Patrick Stevedores and Mr Hennessy was analogous to that of employer and employee giving rise to the same stringent, non-delegable duty of care as is owed in that latter category.

58 I do not think the evidence in the present case supports a conclusion that Patrick Stevedores assumed employer-like responsibilities towards the employees of FBIS performing work on the former's site. That work was done under a detailed commercial contract between Patrick Stevedores and FBIS. FBIS was not providing labour to Patrick Stevedores, rather it was providing security services to Patrick Stevedores' parent company, Patrick Corporation Limited. It was for FBIS Services to employ such persons as were necessary to undertake the provision of security services efficiently in accordance with the specifications referred to in the agreement. It was also required to undertake all tasks incidental to the effective performance of the service. FBIS was obliged "in consultation with and in conjunction with Patrick Corporation Limited" to maintain a detailed plan for the provision of the security services. That was its obligation and not the obligation of Patrick Corporation Limited or Patrick Stevedores.

59 There is no claim under any contractual indemnity or obligation to insure clause pressed by Patrick Stevedores against FBIS (2.25T). The only claim as between them is one arising under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Accordingly, I will not dwell upon the provisions of Clause 5 of the contract.

60 It is relevant to note, however, that under Schedule 2 of the specifications for the contract, FBIS is required to provide an occupational health and safety plan which, inter alia, provided "for the duty of care owed to [its] staff and the public under legislation and the common law". In these circumstances the security work being performed by FBIS was its work and not Patrick Stevedores' work, even if the services were being provided to it. Moreover, as the evidence discloses, FBIS maintained supervisors, like Ms Picone, on the premises to supervise its operations and the work being performed by its staff, like Mr Hennessy.

61 In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA stated the following principle at [139]:

The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;

(b) the condition of plant or premises under the control of the third party, or

(c) the activities of others on the site, generally for the purposes of the third party's undertaking or business.

62 Christie fell into the first category, because TNT "exercised day to day control over the plaintiff's work activities, treating him to all intents the same as its employees as regards work on the factory floor"; Christie at [41]. That is not this case.

63 Nor is this case one falling into Basten JA's third "category" which refers to the Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 or Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 category of case.

64 In Leighton Contractors at [20], a unanimous court stated that "The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees." The additional factors which may lead the law to impute such a duty are not present here. The obligation to devise and control working systems for the security guards under the contract fell on FBIS who was competent to discharge it. Nor is there any element in the present case requiring the exercise of a supervisory power to co-ordinate the respective areas of responsibility of different or separate independent contractors.

65 This then leaves Basten JA's second category arising out of the control by Patrick Stevedores of the premises. The duty of an occupier to entrants lawfully upon the premises, generally speaking, is concerned with the condition of the premises, but it may extend further. In Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234 at [24] a unanimous court said:

The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care. There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent's premises. There was a time when the common law sought to define with precision the duty of care owed by an occupier of land, and treated the content of the duty as variable according to categories fixed by reference to the status of entrants. The common law has since rejected the approach of seeking to construct a series of special duties by reference to different categories of entrant. The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises. That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence).

66 Thompson was a case where the occupier, Woolworths, established and maintained a system relating to deliveries. That is not this case. As I have said, Patrick Stevedores did not maintain any control over FBIS' system for the performance of security work. However, the present case centres upon the physical condition of the respondent's premises, part of the traditional sphere of responsibility of the occupier. There is no lease of Gate B113 to FBIS conferring a right of exclusive possession on it. Moreover, the evidence establishes that in practice Patrick Stevedores maintained a degree of control in fact over occupational health and safety issues on an ongoing basis. For the reasons discussed in Liddiard one must be careful to put misplaced weight upon concessions by persons in management about steps that it might have taken had they known of a risk. Questions of the existence, nature and content of a duty of care are questions of law. However, it is clear that Patrick Stevedores allocated the gatehouse to FBIS for its use, and reserved the right to move them around from time to time. One recalls the evidence of Ms Picone that they had been in the gatehouse for some months. Previously, FBIS had been housed in a permanent structure at the container terminal (Exhibit 1D2 [8]). She said:

We were always changing around from different gatehouses due to the construction that was going on.

67 Moreover, it is clear that Patrick Stevedores maintained control over the premises that were actually allocated as is evinced by the installation of the awning and step undertaken within a few days only of Mr Hennessy's injury.

68 Subject to Patrick Stevedores argument that it had delegated its common law duty of care as occupier to FBIS, I am satisfied that the relationship between Mr Hennessy and Patrick Stevedores as lawful entry on the one hand, and occupier on the other, gave rise to the usual duty of care on the part of the occupier.

69 Save in the exceptional circumstances such as those discussed in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; 179 CLR 520, the duty owed by an occupier to an entrant (or neighbour) is not "non-delegable". Rather it falls into that usual category recognised by the law of negligence where A is permitted to delegate to B a duty owed to C, subject to the exercise of reasonable care in the selection of the delegate: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161. Patrick Stevedores says that this is such a case. Effectively, Patrick Stevedores argued that it had discharged any duty of care owed to Mr Hennessy by engaging a competent security contractor under the detailed and comprehensive terms of the security services agreement (Exhibit 1D4) and the specifications incorporated in it.

70 In substance this is an argument that any duty owed to Mr Hennessy was delegated by Patrick Stevedores to FBIS. Patrick Stevedores called in aid the decision of the Court of Appeal in Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356. Elphick was a decision particularly on its own facts. The leading judgment was given by Whealy JA who observed that the correct allocation of responsibility in an industrial workplace accident falls to be determined on its facts including the contractual arrangements and the day to day implementation of those arrangements: at [82].

71 It should also be noted that Elphick was a case where the injured plaintiff sought to argue that the occupier had retained responsibility for organisation of the system of work at its loading dock. I do not understand this case to fall into the "system of work category". Rather if categorisation may be helpful it falls into the "place of work" category, or what might be described as a core area of responsibility at law for an occupier, namely the condition of the premises.

72 To sustain the argument in the present case, and in addition to the terms of the contract I have referred to above, Patrick Stevedores highlighted that the principal objectives of the contract included the prevention of injury to any person on Patrick Stevedore's sites, the protection of Patrick's assets and the maintenance and continuity of its business.

73 As I have already said, I accept that Patrick Stevedores retained no control over the systems of work appropriate for FBIS' employees. I accept that the contractual documents, pursuant to which FBIS provided its services to Patrick Stevedores' parent company, for the benefit of all companies in the group, stipulated that it should be responsible for matters going to occupational health and safety. That said, it is clear that there is no express term in the contract purporting to delegate to FBIS any duty of care that Patrick Stevedores owed to the former's employees. Rather the effect of the contractual stipulations was to reinforce the need for FBIS to observe its own legal obligations to its employees.

74 Moreover, the need for FBIS to file reports relating to its operations at the container terminal including matters relevant to occupational health and safety subjects shows that to some extent Patrick Stevedores maintained control in these issues even if only to ensure compliance by FBIS to its contractual obligations.

75 In the absence of an express term of delegation in the contrac,t which is very detailed and prescriptive, and in the light of the evidence in the control actually exercised by Patrick Stevedores, not in relation to systems of work, but in relation to the premises to be used by FBIS and its staff, I am not satisfied that Patrick Stevedores has established as a matter of fact that its duty as occupier to Mr Hennessy was wholly delegated to FBIS.

76 I accept the argument that merely by hiring an independent contractor to undertaken work on its premises, Patrick Stevedores does not come under a duty of care with respect to the system of work. However, I reject the argument that by hiring independent contractors to undertake work on the premises, Patrick Stevedores does not come under a duty of care with respect to the condition of the premises utilised by the contractor's employees which remain under its control. That duty, in my judgment, is imputed by the common law of negligence.

77 Nor is it any answer to the duty question that FBIS could have identified matters calling for repair or improvement and drawn them to the attention of Patrick Stevedores. Such considerations may go to breach or apportionment.

The duty of care of FBIS

78 It is not in question in this case that FBIS owed Mr Hennessy the stringent duty of care imposed by the common law of negligence on an employer.

Did Patrick Stevedores breach the duty of care it owed Mr Hennessy

79 Since the decision of the High Court of Australia in Australian Safeway Foods Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, it has been recognised by the common law in Australia that an occupier of land owes a duty to take reasonable care to avoid a foreseeable risk of injury to persons lawfully upon the land. Four Justices approved of the statement of principle by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663 in the following terms:

The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

80 In the present case, of course, the question of breach of duty is to be determined by reference to the provisions of s 5B Civil Liability Act 2002. However, as Zaluzna establishes, the status of Mr Hennessy as a lawful entrant upon the land establishes a relationship between him and Patrick Stevedores which of itself suffices to give rise to the duty to take reasonable care to avoid a foreseeable risk of injury to him.

81 Other circumstances which are relevant in my judgment are the degree of control by Patrick Stevedores over the place used by FBIS as the base for the security operations including its power to reallocate different spaces from time to time according to its own operational needs and concerns such as the ongoing construction work to which reference was made in the evidence.

82 I draw the inference that Patrick Stevedores allocated Gate B 113 as suitable for that purpose.

83 I turn then to the provisions of s 5B Civil Liability Act. This case is one to which these provisions apply because Mr Hennessy argues that Patrick Stevedores was negligent in failing to take precautions against a risk of him suffering harm. The relevant precautions consist of installing the awning and the step. As I have said, I would regard the argument about the grab rail as an alternative to the step.

84 The relevant risk of harm is the risk of personal injury to a person entering the gatehouse by slipping on the metal door-sill when it was slippery because it was wet from rainwater.

85 The first question is whether that risk was foreseeable, that is whether it was a risk of which a person in the position of Patrick Stevedores knew or ought to have known. There was certainly no evidence that Patrick Stevedores knew of the risk. There was no evidence of any prior similar occurrence. And the evidence of Mr Hennessy was that he had entered and exited the gatehouse on many occasions without difficulty only noticing that the step was higher than normal. Ms Picone too, had noticed that, although I would infer she did not regard it as a matter of particular moment. Mr Taylor said he had entered the structure about 40 or 50 times before Mr Hennessy's accident to check on various matters with FBIS supervisors (Exhibit 1D1). He had no recollection of experiencing slippery conditions when it was wet or having any other difficulties. No complaints were made to him. On the findings I have already made, I rejected Mr Taylor's evidence that there was no more than a normal step up into the demountable. I also reject his evidence that there was no significant step up from the ground to get up into the structure (Exhibit 1D1 [39]).

86 Accepting, as I do, the evidence that a higher normal step was required which was noticed, and therefore noticeable, by entrants to the hut leads me to conclude that that factor ought to have been known by Patrick Stevedores.

87 Obviously the risk of slipping did not arise solely out of what I will call the awkward height of the step. The risk arose from the combination of that circumstance and the propensity of smooth metal to become slippery when wet. That combination of circumstances, as I have said in the course of making my factual findings, may put an entrant at a position of disadvantage when stepping up onto the door-sill to enter the gatehouse in wet weather. An appreciation of these factors required no special knowledge. They are the kind of everyday factors that all mature adults become familiar with as part of their experience of life. I am satisfied on the balance of probabilities that that risk of harm was foreseeable in the statutory sense.

88 The second question is whether the risk was not insignificant. This consideration adds, in my opinion an additional factor to the common law as explained in Wyong Shire Council v Shirt (1980) 146 CLR 40. Under the Act the relevant risk of harm must both be real and not insignificant. The question of "not insignificant" includes both the magnitude of the chance of it occurring and the likely seriousness of the consequences, questions which in accordance with s 5B(2) arise in respect of the s 5B(1)(c) question. For this purpose it is not enough that the risk is not farfetched or fanciful. It must have sufficient significance that a reasonable person in the defendant's position would turn his or her mind to the question whether relevant precautions should be taken before dismissing the foreseeable risk out of hand. That, of course, does not mean that a reasonable person may not decide to do nothing about a risk that was both foreseeable and not insignificant.

89 I turn then to the question whether a reasonable person in Patrick Stevedores position would have taken any of the precautions proposed by Mr Hennessy. In determining this, I am required to consider the factors identified in s 5B(2) "amongst other relevant things". The reasonable person is not required to respond positively to every risk which is both foreseeable and not insignificant by taking any available precaution. Here, the history of the usage of the gatehouse demonstrated that the probability that someone would slip in wet weather and hurt himself or herself was not great. In fact, it was low. The entry was used very many times a day by FBIS guards entering and leaving going about their duties, by cleaners coming and going, and at least from time to time by Mr Taylor and perhaps other Patrick Stevedores' staff having legitimate business with FBIS. This factor favours a reasonable person in Patrick Stevedores' position deciding to not take the precautions.

90 Falls are commonly known to be the source of significant if not serious personal injury. If a person falls heavily and unexpectedly some significant injury may be said to be on the cards. This factor favours taking available precautions. The burden of placing an awning over the entry, and installing a step were not great and so much is shown by subsequent events. Indeed, the burden was slight. Likewise I think I can infer that the burden of putting up a grab rail beside the entry instead of installing the step would have been slight. I am not satisfied that the risk was such that a reasonable person in Patrick Stevedores' position would regard it as necessary to install both a step and a grab rail or that both were reasonably necessary to obviate the risk.

91 In referring to the steps that were subsequently taken, I am not engaging in hindsight reasoning, nor am I overlooking s 5C(c) of the Act which provides that the subsequent taking of alleviating action "does not of itself give rise to or effect liability in respect of the risk". However, the subsequent taking of simple steps may be evidence of the availability of relatively inexpensive measures capable of obviating the risk which is a factor relevant to the question posed by s 5B. It does not of itself prove the plaintiff's case, but it may help. I certainly do not regard the taking of subsequent steps as any statement against interest constituting an admission.

92 All lawful enterprise may be said to have social utility. However in the present case that is not a factor outweighing the considerations which inform the answer to the s 5B(1)(c) question. The court would not wish to make a finding of negligence that jeopardised jobs, for instance, but that is not this case. There is nothing in the social utility of Patrick Stevedores operations which tells against a finding of negligence otherwise arising on the evidence.

93 "Other relevant things" include the burden of taking precautions to avoid similar risks of harm for which Patrick Stevedores may be responsible and I was referred to Vairy v Wyong Shire Council (2005) 223 CLR 422 at 460, 462 and 468 in that regard. Although the site was a large one, there was no more than that in the evidence from which I could form any conclusion about the possible scale of necessary remedial action. This is not a case like Vairy where a shire council had imposed upon it "responsibility" for long miles of coast and hundreds of other facilities of public resort. In my judgment there is no great burden in imposing upon the occupier of private as opposed to public, places, and of built, as opposed to open, spaces the obligation to take reasonable steps to keep them in repair.

94 Other relevant factors include the consideration that an occupier is generally entitled to expect entrants to exercise reasonable care for their own safety particularly where risks of harm are obvious or apparent. On the other hand, appreciation of risk may be obscured by repetition of performance of the task: Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at pp 177 - 8. Here one may be aware that the step up is higher than normal or even awkward, but repetition of the performance of such a simple task may create a level of familiarity where the need to exercise particular care is overlooked.

95 Finally, the consideration that the gatehouse was a workplace provided by Patrick Stevedores to FBIS for use by its employees in performing the security services agreement. Given the high standards expected by Patrick Stevedores of FBIS in relation to occupational health and safety, it well behoved it to consider the appropriateness of the premises it provided for use as a workplace. By saying this I am not suggesting that any more stringent duty arises in the case of Patrick Stevedores. Its duty is, and only is, one to exercise reasonable care.

96 Taking all of these admittedly competing, and sometimes conflicting factors together, I am satisfied that a reasonable person in the position of Patrick Stevedores would have, at the time it allocated gatehouse 113B to FBIS taken the precaution of installing a step below and an awning over the entrance. I am satisfied that the plaintiff has demonstrated on the balance of probabilities that Patrick Stevedores was negligent.

The negligence of FBIS

97 The question of whether FBIS has breached its duty of care is not informed by the provisions of the Civil Liability Act: s 3B(1)(f). However, that I have found Patrick Stevedores negligent in respect of a matter which is a key area of responsibility of the employer i.e. the safety of the place of work, means that FBIS is likewise in breach of its non-delegable duty: Christie at [47]. However, I am satisfied that it has been personally negligent for very similar reasons to those expressed in respect of Patrick Stevedores. Its obligation to take reasonable care to provide a safe place of work was undoubted. It also had obligations in relation to the occupational health and safety of its workers under contract with Patrick Stevedores. It ought to have undertaken a relevant inspection, audit if you like, of the gatehouse once allocated by Patrick Stevedores. Had it done so, it ought to have appreciated the risk and considered the relatively simple steps available to obviate it. As an employer it was under a duty of affirmative action in regard to these matters.

98 As it did not have a right to exclusive possession of the premises and no right to carry out alterations or modifications, it would have been necessary for it to request that Patrick Stevedores undertake the necessary alterations, modifications or repairs, i.e. installation of the step and awning. This, it did not do and for that failure on its own part it is also negligent.

99 I will consider the question whether Patrick Stevedores would have responded to such a question when dealing with the issue of causation.

Contributory negligence

100 Before considering causation and apportionment, I think it appropriate to consider here whether Mr Hennessy was guilty of contributory negligence vis a vis either Patrick Stevedores or FBIS. The questions may not necessarily be the same given the different nature of each relationship. I am aware that for the purpose of deciding questions of apportionment, one needs to consider the conduct of each of the three parties together.

101 I am not satisfied that Mr Hennessy is guilty of contributory negligence. Whatever apprehension he may have experienced at first when entering and exiting from the higher than normal step is likely to have been assuaged by the familiarity which comes with the repetition of an everyday task. In this regard, as I have said, any sense of a need to take particular care because of the unusual height would have been dulled.

102 There was no suggestion that he was unduly hurrying, or hasty, in entering the gatehouse nor is there any suggestion that he ought to have taken any specific precaution himself. It was suggested in cross-examination that perhaps he could have stepped over the threshold onto the linoleum floor. But this would have increased the need to overstep to enter the gatehouse and I am not satisfied it has been shown that his failure to do so amounted to contributory negligence.

103 Bearing in mind that this was part of the plaintiff's workplace and that there was no alternative he could adopt other than using the only means of entry provided. I am of the view that any failure on the part of the plaintiff to carefully position his foot on the door-sill as he was gaining access to the gatehouse falls into the category of mere inadvertence rather than contributory negligence: Sungravure Pty Ltd v Meani (1964) 110 CLR 24.

104 As between Mr Hennessy and Patrick Stevedoring, s 5R Civil Liability Act applies. This provision incorporates the same principles as apply in determining negligence under the Act. It has been said its purpose is to place greater emphasis upon considerations of personal responsibility in apportioning liability between a plaintiff and defendant. Such an approach may redress the balance of the previous law, or at least how it tended to be applied in practice. Keeping this consideration to the front of my mind, the findings I have made do not attract a finding of contributory negligence. In particular, there is no identified precaution, in my judgment, that could have been adopted by Mr Hennessy, that would have been adopted by a reasonable person in his position, that would have obviated the risk of personal injury by slipping on the wet door-sill. Stepping onto the linoleum within the gatehouse may have avoided the door-sill, but involved a greater degree of overreach, which equally may have exposed him to a risk of slipping or tripping by reason of his following foot catching on the door-sill, or the like.

105 I am not satisfied Mr Hennessy has been guilty of contributory negligence.

Causation

106 The general principles to be applied in determining questions of causation in negligence cases are established by s 5D Civil Liability Act. A determination that negligence is a cause of particular harm comprises two elements: first, was the negligence a necessary condition of the occurrence of the harm; and secondly, is it appropriate for the scope of the negligent person's liability to extend to the harm so caused. The first question is concerned with the application of the "but for" test.

107 To the extent to which there is any difference between the principles established by s 5D and the common law test established March v E & MH Stramare [1991] HCA 12; 171 CLR 506, the common law will govern questions of causation for the purpose of determining the liability of FBIS.

108 Factual causation is the major concern in the present case. The liability of each defendant falls into a category of legal responsibility well established by the law of negligence. The normative considerations informing inquiries into the proper scope of liability therefore do not arise: Wallace v Kam [2013] HCA 19; 250 CLR 375; [22].

109 By dint of s 5E, the onus in all respects lies upon Mr Hennessy. The position is the same at common law: Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870. Unlike questions of breach, questions of causation are determined by reference to hindsight. The purpose of the inquiry is to determine what happened and why. I have determined that what happened was that Mr Hennessy's right foot lost traction on the wet smooth steel of the door-sill as he commenced to step into the gatehouse with his following left foot off the ground. Was the negligence of Patrick Stevedores a necessary condition of that occurrence? This is the "why" question.

110 I have decided that Patrick Stevedores' negligence consisted of its failure to inspect the demountable hut for the purpose of determining its suitability as a place of work for FBIS staff at the time that it allocated the hut to FBIS for its use. According to Ms Picone this happened several months before Mr Hennessy's accident. Exercise of reasonable care in such an inspection would have disclosed the greater than normal height of the necessary step up from the ground to the gatehouse and a reasonable person in the position of Patrick Stevedores would have determined that an intermediate step was a reasonable precaution to guard against the risk of injury of persons stepping up and slipping on door-sill when it was wet. That was a simple step and could readily have been done in short order before the allocation of the hut just as it was done after the accident and within a few days.

111 Had the step been fitted at that time, I am satisfied that all users of the gatehouse including Mr Hennessy would have entered and exited by using the step. It was not suggested otherwise in cross-examination. An intermediate step would have permitted Mr Hennessy to step over the door-sill into the gatehouse beyond with ease. It is possible in rainy conditions that the floor inside the door may also have been wet and muddy (Ms Picone says it was not). But linoleum may not be as slippery as smooth, ridged steel. The latter provides for little contact between its surface and a workers' wet boot.

112 I am satisfied that the failure to install the step is a necessary condition of the occurrence of Mr Hennessy's injury. No reason has been suggested why the scope of Patrick Stevedores' liability should not extend to the particular harm suffered by Mr Hennessy. This is not a novel category of case and there is no need to examine the question further.

113 The same factual considerations establish causal connection between the negligence of FBIS as employer and the injury suffered by Mr Hennessy. There is no need for any further analysis of the question. I am satisfied that FBIS' negligence caused the plaintiff injury.

114 For the reasons I have already given, the provision of a grab rail was, at best, a possible alternative to the installation of an intermediate step. I did not find that both were necessary in the circumstances of this case. Of them the installation of the intermediate step is reasonably superior. The failure to install a grab rail in my opinion is not a necessary condition of the occurrence of the plaintiff's harm.

115 Likewise, I find that the installation of the rather rudimentary awning depicted in Exhibit F is not a necessary condition of the plaintiff's harm. It is made of corrugated metal within some kind of frame. It protrudes from the roof some distance above the top of the door in what appears to be a horizontal plane. Conceivably it might keep the door-sill dry when moderate rain is falling vertically. But it is unlikely to be effective in blustering conditions, driving rain or when the rain is carried by a contrary or cross-wind. Moreover, the risk of slipping may equally arise from the deposit of moisture from the wet boots of persons entering the guardhouse after patrol or the performance of other duties. An awning would be no precaution against a risk of harm arising that way. I am not satisfied either under s 5D(1)(a) or the common law that the failure to install the awning prior to Mr Hennessy's accident caused it.

116 In dealing with the absence of a step as a cause of Mr Hennessy's harm, I am conscious that I have been unable to determine with precision the height of the necessary step-up. The degree of overstepping called for, is of course, relevant to questions of causation. I have also borne in mind that over the several months that this gatehouse was in use, during which there was likely to have been some rain, but there was no evidence of this, no other person, on the evidence, seems to have lost his footing and fallen as Mr Hennessy did. These are factors significant to causation as well as breach.

117 However, on the evidence I have accepted, the greater than normal height requiring a step-up satisfies me on the balance of probabilities that a person entering the gatehouse by that means would be in a position of disadvantage when compared with a person entering by way of an intermediate step. It is that disadvantage coupled with the slippery nature of wet smooth metal which I find caused Mr Hennessy to fall. That disadvantage, and the need to step on the door-sill, would have been obviated by the installation of a step.

118 The absence of the occurrence of any prior accident is more relevant perhaps in relation to the assessment of the foreseeability and magnitude of the risk. It may have some relevance in demonstrating that the door-sill was not unduly slippery: cf Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [4] - [5] per Priestley JA. However, this question must be considered in the light of all the relevant circumstances: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309. Without rehearsing all of the considerations to which I have referred in relation to breach and causation, the absence of prior similar occurrences is not a decisive factor which displaces my state of actual persuasion that the negligence of the defendants caused the plaintiff's accident.

Apportionment

119 The only need for apportionment of responsibility arises for the purpose of the application of s 5 Law Reform (Miscellaneous Provisions) Act as between Patrick Stevedoring and FBIS. There is no claim in contract that has been pressed before me.

120 The principles governing contribution between tort-feasors are well established. In the end they require the application of a "just and equitable" standard. In making a decision, a trial court has regard to all the circumstances of a case in applying what may be said to be two key considerations. That is, a comparison of the relative culpability of each defendant in a sense of the degree of respective departures of them from the standard of reasonable care. The second consideration is the causative potency of their acts or omissions in bringing about the harm.

121 As the occupier, Patrick Stevedores had primary responsibility for the condition of the premises, moreover, it had power under the contract to allocate space to FBIS for its security guards and to change that allocation from time to time. It maintained, in a general sense, an overarching control in respect of matters of occupational health and safety, although the primary responsibility in this regard, under the contract fell on FBIS. Being primarily responsible for the condition of the premises, it was in a better position to assess their suitability and to make such modifications as reasonable care required at the time gate 113B was allocated to FBIS.

122 As Mr Hennessy's employer FBIS had the primary responsibility for his safety at work. Its duty, imposed by the law of negligence, was more stringent than the duty owed by Patrick Stevedores. Its obligations under the contract, directed its attention to issues of workplace safety and the provision of a reasonably safe place of work was one of its core responsibilities under the general law. However, it did not own or control the premises. Under the contract it went and took its employees where Patrick Stevedores sent it. Its capacity to modify the premises was restricted to identifying hazards and requesting they be removed by action on the part of Patrick Stevedores. There is no reason to suppose that Patrick Stevedores would not have responded to its requests. The prompt installation of a step within days of the plaintiff's accident justifies that conclusion.

123 The factor which the balance somewhat in FBIS' favour is Patrick Stevedores direct control of the premises and its primary responsibilities as occupier. As between them, I would apportion responsibility for Patrick Stevedores at 60 per cent; and FBIS at 40 per cent.

Damages

124 The finding I have made about Mr Hennessy's unreliability as a medical historian means that the facts relevant to determination of the quantum issues in this case need to be based upon other objectively determined and satisfactory evidence.

125 Because most of the doctors who saw Mr Hennessy for the purpose of this case were not given the full picture by way of history, their evidence, which is mostly very supportive of him, needs to be put to one side. It is axiomatic that the opinions expressed are only as good as the assumptions made.

126 To find reliable objectively determined evidence one must look to the medical evidence. In this regard, there are four doctors who seem to have more or less the full picture. They are the general practitioner, Dr Owen Brookes, Dr Deveridge, Dr Peter Giblin and Dr Edward Schutz. The three specialists were medico-legal referees qualified for the purpose of the case. Each of them was provided with the complete clinical picture by way of contemporaneous reports for the purpose of the preparation of his last report. Dr Giblin and Dr Schutz gave oral evidence.

127 In cases like this, where the determination of the right history is critical to the determination of the quantum of damages by application of the compensatory principle, the views of a treating general practitioner who has been the plaintiff's physician both before and after the relevant accident will often be of great value, especially where his or her views are expressed in a non-contentious or non-forensic context. I have the benefit of having received in evidence (Exhibit FF) the referral letter of Dr Brookes to Dr Mark Davies, the operating surgeon, dated 27th August 2005. I think it important to set out Dr Brookes's description of the development of Mr Hennessy's condition in full. It is in the following terms:

Thank you for seeing Shane Hennessy, age 23 yrs, for review. I understand you have spoken to George Pitsis and we have been managing Shane in tandem, so I thought it important to put in my 2 cents worth.

He has a history of lumbar back pain. Initially a short self limited episode in 1997. In 2002 he had a work related injury which resulted in a protracted course but he did slowly return to work over 4-5/12. CT scans at the time showed disc prolapse. He did have some sciatica. I think the pain never completely settled but he was able to satisfactorily return to work. He was assessed by the spine service at St George Hospital but as there was no operable lesions, I suspect that they weren't particularly interested and Shane was unimpressed by the orthopaedic surgeon. An MRI was performed.

In November, last year, his back flared up following a big weekend gardening/landscaping.

In March, 2005, he slipped and fell again at work, slipping on a wet step and landing forwards on the ground. He was unable to get up without asssistance. He has had symptoms which might be consistent with radicular pain on the left side. Since then his course has been very slow with minimal reduction in pain. A repeat MRI scan has been performed but this does not

appear to be much changed from previous, according to the report.

Shane is bored at home and was keen to return to some form of work but the extended time to travel to the city by public transport was a disaster.

He has had an injection into the nerve root sheaf with some temporary improvement. He has been referred to Henry Lam for pain management. Otherwise he remains unfit for any but the

mildest of activity.

I have been loathe to suggest surgical management. His pain largely settled with conservative management last time and in the past he has had other injuries which were slow to settle and yet with time did so completely.

I find Dr Brookes description of the development and progress of the plaintiff's condition to be illuminating and consistent with what I regard as other objective evidence.

128 Much was properly made in argument by the defendants of the past medical history. The relevant factors are: back injury in 1997; the work related injury in 2002, which appeared to involve some degree of disc lesion with ongoing symptomatology; the incident involving heavy gardening in November 2004; and the referral to a spinal surgeon, Dr. Diwan. Of course, the complaints advanced to Dr Diwan were significant.

129 Much of this is put in context by Dr Brookes's report and given that he was a treating doctor over many years, his impression of some sciatica at the time of the 2002 injury settling, a significant flare-up in 2004 and Dr Diwan not being interested as he considered there was no operable lesion, is a very valuable impression formed by an experienced medical practitioner engaged in the ongoing management of Mr Hennessy's condition. Moreover, his impressions are borne out by other evidence. In his letter to Dr Brookes (there are two versions of it, one dated 20 January 2005 and the other 20 February 2005), as I have recorded above, Dr Diwan did not find any objective signs of radiculopathy: he said "lower limb neurology is normal". He did not diagnose operable disc lesion on the basis of his clinical examination, which to my mind is significant. His diagnosis was of a pars defect without spondylolisthesis. Both Dr Giblin and Dr Schutz regarded a unilateral pars defect as of no real clinical significance. Moreover, Dr Diwan did not suggest surgery. Rather, he "foreshadowed ... the possibility of an injection program". All of this confirms Dr Brookes opinion at the time.

130 It is true that there is no report from Dr Diwan commenting upon the MRI scan of 4th February 2005 requested by him which, as I have said, demonstrated a left sided disc protrusion at L4/5 affecting the exiting sciatic nerve root.

131 Dr Brookes recorded that that MRI was similar to the post-accident MRI carried out on 23rd May 2005 by the same radiologist, at least in Dr Brookes's words "according to the report". Dr Schutz is of the view that the pathology shown on each MRI scan was identical and that Mr Hennessy's condition was the same both before and after 21st March 2005. The operation that was necessary after March 2005 was equally necessary before.

132 I also bear in mind as an objective fact, the plaintiff was able to carry on full time work as a security guard until 21st March 2005 with a loss of only one day with severe back pain, namely 13st January 2005. Moreover, that he suffered a significant, and perhaps ongoing, flare-up of symptoms following the heavy gardening/landscaping work at home in November 2004 demonstrates that, at that time, he regarded himself as up for that type of activity. The security guard work at the container terminal involved some moderately heavy activities. Crates of bats, which were as I understand it, some form of identification issued to visitors entering the terminal had to be collected and moved. According to Mr Taylor's evidence they weighed between 10 and 15 kilograms. Ms Picone confirmed that his activity was required of guards, according to my impression, not infrequently.

133 I accept, however, that the pathology shown in the pre-accident MRI and CT scan had an effect upon his ability to perform heavy work such as heavy gardening, and that this degree of incapacity was a consequence of the work injury he suffered in 2002.

134 Although one must avoid the post hoc ergo propter hoc fallacy, it is significant that there seems to have been a great change in his symptomatic presentation after the injury of 21st March 2005. Dr Brookes thought he then developed "radicular pain on the left side". It is to be borne in mind that Dr Pitsis, whom Mr Hennessy saw on referral from Dr Brookes in around June 2005, received the "correct history". He was told that Mr Hennessy "has never been 100 per cent following" the 2002 injury "but well enough to continue working".

135 Dr Pitsis also received a history of very severe lower back pain and associated radicular pain bilaterally worse on the left. He recorded finding an "associated positive slump test worse, on the left, with a normal neurological examination otherwise noted". I infer that this is a finding of a neurological sign. Dr Pitsis thought it evident that Mr Hennessy had a left 4/5 disc protrusion with associated left L4 nerve root impingement as indicated by the May MRI report "and supported by clinical findings". In January 2005, Dr Diwan did not diagnose L4/5 disc protrusion because he did not make clinical findings which supported that diagnosis.

136 The question of whether the MRI scans of February 2005 and May 2005 show the same pathology was addressed by Drs Giblin and Schutz in their reports and in their oral evidence.

137 In his report of 26th June 2013 Dr Giblin recorded that he noticed fluid in the facet joints on his examination of the May 2005 MRI scan. In evidence he described this as evidence of a significant post traumatic clinical event lasting from within 72 hours to six between six weeks and three months of the trauma (304.50-305.5T). Although, Dr Giblin regarded that sign as evidence of significant trauma, from his consideration of the MRI scan, he would not have recommended surgery basically because of the presence of epidural fat around the nerve. The epidural fat is a protective covering and "is one of the very first anatomical structures to disappear in an x-ray when that nerve is under compression" (305.10T), I took this to mean there is no point decompressing a nerve root by removing the disc protrusion or bulge because it was not compressed.

138 As I have said, Mr Hennessy has undergone three operations. He first saw the operating neurosurgeon, Dr Mark Davies on 27th September 2005. Dr Davies did not get an accurate history of the previous injury. However, he did record what he regarded as signs of radiculopathy being asymmetrical limitation of straight leg raising, worse on the left and a reduced left knee and ankle jerk. His diagnosis was left L4 radiculopathy secondary to foramenal L4/5 disc lesion. At the surgery on 15th November 2005 he found the following:

Shallow left posterolateral/foramenal L4/5 disc lesion. Focal tear in foramen. Small amount subligamenatous sequestrated material adjacent to L4 nerve root.

Dr Giblin was of the view that those operative findings of a displaced piece of disc material "would be consistent with the mechanism and history of injury". I asked him the following question:

Q. And does that have any connection with what you said about the fluid in the facet joints?

A. Yes, exactly, direct causal connection (305.40T).

It should be recorded that Dr Giblin would not have operated under those conditions. He regarded the pathology disclosed on the MRI scan as not severe enough to warrant it. However that may be, his evidence supports the view that there was an increment in the pathology because of the injury of 21st March 2005 being the sequestrated disc material and the recency of the trauma causing that increment is supported by the finding of fluid in the facet joints not commented upon by the radiologist when he prepared his report of 24th May 2005.

139 Dr Schutz agreed that fluid in facet joints is an indication of inflammation which could be due to "an acute significant trauma" or trauma in the form of an ongoing or intermittent aggravation of pre-existing aggravation. He could not distinguish between them. He would accept that the fluid could be present for six to twelve weeks. But if due to "inflammation without ... specific cause" then it would dissipate when the inflammation settled (318.10 - .35T).

140 I formed the impression that Dr Schutz was very disenchanted with Mr Hennessy for giving him the wrong history in the first place. I must say this is understandable. But it did seem to colour his views and affect his evidence: see 325.15T; 328.35 - .45T.

141 On reviewing the contemporaneous medical material, he formed a strong view that the pathology remained the same throughout subject to periodic flare-ups following specific trauma, but basically unchanged. If there was a need for surgery, which he seemed to accept there was, it was due to the underlying condition, not any aggravation which may have occurred on 21st March 2005 which he regarded as temporary and self-limiting, lasting a period of weeks only.

142 He accepted, however, that the underlying condition is susceptible to the effects of trauma of different kinds (335.5T). And that the incident of 21st March 2005, if it occurred, is capable of being a significant incident of trauma (335.10T). In his view if one accepted from March 2002 an ongoing cyclical situation of flair-ups and remissions followed by an incremental worsening of an ongoing type after March of 2005 then the incident in March of 2005 is "the primary cause" (335.20 - .40T). However it was clear that Dr Schutz thought that the nature of the complaints made to Dr Diwan in January 2005 weighed heavily against the idea that there was any "supposed changed" in March 2005.

143 The second surgery occurred on 28th February 2006. The background, according to Dr Davies, is that Mr Hennessy developed a recurrence of his left leg pain, following what the surgeon had regarded as successful surgery. It was decided to undergo a re-exploration of his spine. As Dr Davies explained in his report of 7th March 2006, his intention had been to remove "the existing dynamic stabilisation device, perform a redo discectomy and insert a new prosthesis". During surgery he became aware of the pars interarticularis/inferior articular defect at L4 which he regarded as "not visible on imaging". During surgery he decided that this was evidence that the L4/5 segment was unstable. He also found a disc bulge with a small recurrent sequestrated foramenal component. He said "both pathologies were causing marked L4 nerve root compression". He carried out a complete foraminotomy and rhizolysis of the left L4 nerve root together with a single level spinal fusion at L4/5. This produced "immediate relief of [Mr Hennessy's radicular leg pain".

144 It is fair to say that both Dr Giblin and Dr Schutz were somewhat puzzled by Dr Davies deciding to perform a fusion during surgery because he'd found a pars defect. Dr Schutz doubted that a unilateral defect would cause instability and Dr Giblin regarded treating a defect with a fusion as superseded by modern practice (308.45T). Dr Giblin thought the presence of the defect in conjunction with a recurrent sequestrated disc was significant. But he would not have carried out a fusion (308.15 - .35T).

145 Initially signs following the surgery were good, as I have said, and by August 2006 Dr Davies thought the x-rays were indicating that the fusion was going to be solid. As at September 2006, Mr Hennessy seems to have got back to some form of light part-time work in a static position for a couple of hours a day. Dr Davies doubted he would be able to sustain that type of work for 12 hours on end. He needed to be more mobile. However, he did not last long in this position because he redeveloped back pain which was slowly worsening within about a month.

146 By April 2007, his condition had deteriorated significantly. He was complaining of constant back and severe bilateral leg pain, namely in the left leg. He was on very strong narcotic pain killing medication. On examination, there was marked restriction of all spinal movements and there were some inconsistent neurological signs on the left. Sophisticated radiological techniques showed that the fusion was not solid. There was a "halo" around the L5 screws by which the fusion was fixed at that level. Dr Davies considered that the halo was a pseudoarthrosis at L4/5 permitting "micro movement" which would be a significant contributor to ongoing pain. Dr Giblin said that this indicated that the fusion surgery had failed. In these circumstances, Dr Giblin was of the view that further surgical attempt was "a reasonable option". The third operation was carried out in August 2007 by way of a revision of the spinal fusion.

147 The situation since then unfortunately has not been one of improvement. Rather Mr Hennessy has been treated with a large variety of different modalities to manage his pain from psychological and psychiatric consultation to specialist pain-management physicians. He has received nerve stimulator treatment and a series of analgesics, antidepressants and pain modifying drugs, according to Dr Brookes's report of 12th September 2012.

148 He has applied for employment unsuccessfully and he failed to finish a private investigation course which was recommended by a vocational agency because he was physically unable to complete the course due to his disabilities. All this has been compounded by his psychological state. However, the psychiatrists are of the view that his mental problems are caused by the severity of his physical disability. Dr Brookes provided the following opinion:

It is my opinion that Mr Hennessy is now unemployable due to his chronic pain and psychological scarring. The severity of his symptoms preclude meaningful employment. He is psychologically unsuited to sedentary employment and his physical disabilities make sitting and driving for periods impossible.

His prognosis is poor. He may improve with time, but his disabilities are unlikely to allow employment.

149 It is notable that Dr Giblin is of the view that Mr Hennessy has a guarded prognosis in terms of any return to work. In his last report of 27th June 2013 Dr Deveridge, armed with all relevant material, adhered to his view that there had been a material aggravation of a pre-existing spinal condition, particularly at the L4/5 disc protrusion which led to the need for medical and surgical treatment. Dr Deveridge did not expect Mr Hennessy to return to gainful employment. There is an ongoing need for high dose narcotic medication. The medication itself would prevent him from performing even sedentary duties of a responsible nature. He requires domestic home care assistance. Dr Deveridge does not expect there to be any further surgery.

150 In his report of 5th October 2009, Dr Schutz found extensive post-operative fibrous tissue-scarring on looking at the post-operative MRI scans. He said of that phenomenon, in evidence, the following (332.10T):

Well, we are seeing Mr Hennessy who has unresolved symptoms despite surgery. And one of the causes of persisting symptoms in the radicular nerve root distribution is pathology involving the nerve root. The surgeon has taken away the prolapsed disc ... but perineural fibrosis, that is scar tissue around the nerve, is invariable after any sought of operation, but sometimes it becomes a significant problem, hence I have referred to extensively to post-operative fibrosis. In other words, I think that that is probably greater - at the high end of expectations and possibly the cause of ongoing radicular symptoms.

Dr Schutz said that the phenomenon was induced by the first operation. This probably accounts for the high level of ongoing pain. Dr Schutz was of the view that with some allowance for freedom of movement Mr Hennessy could work "in a light and variable clerical activity".

Findings about significant issues

151 I accept the evidence of Drs Brookes, Deveridge and Giblin in preference to the evidence of Dr Schutz. In my view, Dr Brookes' historical account and impressions fit in with Dr Giblin's analysis that the sequestrated fragment found at the first operation, and the fluid in the facet joints were significant in terms of the history of a specific injury occurring on 21st March 2005 (311.50T). Dr Schutz accepted that may be so, but pointed out there were other possibilities, including the ongoing process of pre-existing degenerative condition. I repeat he was somewhat coloured in his views because of the dim view he formed of Mr Hennessy, understandable as that may have been.

152 However, in the end I prefer the views of Dr Giblin because the contemporaneous evidence does not support the hypothesis of Dr Schutz that there was no material change in the pathology between January 2005 and May 2005. I reiterate that Dr Diwan, on clinical grounds, did not regard Mr Hennessy as a candidate for spinal surgery. We do not know what he thought of the report of the MRI scan of 4th February 2005, but I think it notorious that such scans are diagnostic aids, the significance of them is to be considered in a clinical setting.

153 By June of 2005, Dr Pitsis, who as I have said received a correct history of past significant back pain, found signs of radiculopathy and was contemplating surgery as a possibility. It was Dr Pitsis who referred Mr Hennessy to Dr Davies in August prompting Dr Brookes to write the letter I have quoted at length above. There clearly had been a significant change, in my view, in the clinical picture.

154 Although Dr Giblin did not have the MRI scan from February to look at direct, I am persuaded that what he saw on the May 2005 MRI scan taken in conjunction with the other circumstances to which I have referred, including the operative finding of the sequestrated disc, is persuasive evidence of significant pathological and symptomatic change in Mr Hennessy.

155 The fall in March 2005 was certainly capable of producing that change in the opinion of all the doctors. The only question is did it? I am satisfied on the balance of probabilities that it did. Given the difference in his clinical condition between January 2005 and June 2005, I think it unlikely that the heavy gardening/landscaping in November 2004 produced that change. Dr Giblin's explanation about the fluid in the facet joints being evidence of comparatively recent trauma, whilst not excluding the possibility that the change occurred in November 2004 is rather against it. I accept there was a change. And that the injury sustained in March 2005 is a cause of his current medical condition.

156 Even if Dr Giblin would not have operated on the basis of the radiological evidence and clinical signs as he understood them to be, because of the preservation of the protective coating of epidural fat around the nerve root, he accepted that other surgeons could reasonably form a different view. Once that is accepted, it cannot be said that Dr Davies decision to recommend and carry out surgery was unreasonable. In any event, from Mr Hennessy's point of view it was reasonable for him to accept the advice of his treating surgeon.

157 It seems clear from the evidence I accept from Dr Schutz that that surgery initiated a process of post-operative fibrosis which helps explain the severe ongoing pain, unrelieved by many modalities of medical treatment. Whether medical minds would differ about the advisability of doing the first fusion in the light of the operative findings made by Dr Davies is not to the point. Dr Davies had to make decisions as he went in the course of an operation. He found not only the pars defect, perhaps he should have been aware of it earlier, but also a recurrent sequestrated disc. Dr Giblin accepted that the combination was significant even if he would not have treated it by way of spinal fusion.

158 It's clear that the first fusion failed and the third surgery was necessitated by that failure. There was no question but redoing the fusion was a reasonable option. I would also infer that subsequent surgery at the same level is likely to have contributed to the post-operative fibrosis commented upon by Dr Schutz.

159 There can be no doubt that the plaintiff has suffered some psychological problems, although the evidence before me was not overwhelming about that. I accept the views expressed by Dr Brookes that they are likely to be secondary to his chronic pain and physical disabilities. They may contribute to his ongoing incapacity.

160 There may also be a degree of introspection leading to embellishment. For instance on presentation he has used a walking stick, the need for which has not been explained on anatomical grounds. However, in this case those features did not count materially for the plaintiff's present level of disability.

161 One is reluctant to accept that someone as young as Mr Hennessy is on the industrial scrapheap. But attempts over nearly ten years to reintroduce him into the workforce have failed, even if theoretically looked at from the point of view of his physical restrictions alone, he ought to be capable of doing some useful work. Considering the body of medical evidence I accept about this, I would only rate it as a possibility that his obvious diminution of earning capacity is likely to enable him to return to productive work in the future. But obviously when assessing economic loss some allowance ought to be made for that.

162 It will be important to say something about domestic assistance, obviously given his injuries, his previously reduced capacity in that regard is yet further reduced and I do not understand the defendants to dispute that proposition.

Seltsam Pty Ltd v Ghaleb

163 Before going on to deal with various heads of damages, it is important to say something about Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3DDCR 1. At [101] - [103] Ipp JA with the agreement of Mason P and Basten JA expressed the following principle of general application in personal injuries cases:

Walker J made no reference to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 when discussing the onus of proof that a defendant has to discharge in circumstances of the kind the subject of Watts v Rake and Purkess v Crittenden .

In Malec Deane, Gaudron and McHugh JJ said at 643:

[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.

Brennan and Dawson JJ stated at 639-640:

The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff's] earning capacity which was destroyed in consequence of the [defendant's] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.

Their Honours said at 640:

In assessing the [plaintiff's] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.

Therefore, according to Malec:

(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

164 The principle is capable of applying to all heads of damages. At [105] - [106] his Honour said:

Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.

Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.

165 This principle obviously has application to the present case given the significant pre-injury history. During the course of argument, the parties addressed me on this issue and Patrick Stevedoring, in particular, submitted that I should accept Dr Giblin's assessment of a risk in the order of 70 or 80 per cent that even without the injury of 21st March 2005, a surgeon would decide to do the type of operation first carried out by Dr Davies. Dr Giblin qualified that view, with respect, in a somewhat cynical fashion. He said:

... it all depends on your insurance status. If he had no insurance he would have no operation. It's as simple as that (311.40T).

166 This was really related to Dr Giblin's earlier expressed view, which I will water down somewhat, that "if you see enough surgeons, one of them will want to operate" (300.50 - 302.5T).

167 We know that Mr Hennessy saw Dr Diwan in January 2005. Dr Diwan describes himself as a spinal surgeon. He did not want to operate. We also know from what Dr Brookes tells us that Mr Hennessy at that time was not keen on following up treatment with Dr Diwan.

168 In any event, the question is not purely a medical one and all of the circumstances of the case must be assessed. Moreover, it does not follow from the application of the Ghaleb principle that its burden will fall evenly across all heads of damage. It may be that it is a more significant consideration in respect of some than others. For example, I have found that Mr Hennessy already had a partial impairment of his ability to work prior to 21st March 2005 by reason of the earlier injury of 2002. As the starting point for any damages for economic loss will be his pre-injury capacity to work, the previous partial impairment will already have been brought to account.

169 Moreover, even allowing for a possibility that regardless of the occurrence of the accident, he would come to surgery, the course and outcome of that surgery may not have been exactly the same. Different surgeons may have taken different approaches. For instance, as Dr Giblin said there may have been no fusion, and if so, no pseudoarthrosis. Likewise different surgery at a different time by a different surgeon might have led to a different outcome in relation to postoperative fibrosis. All of these considerations have to be brought to bear in making the type of reduction called for by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

Work Injury Damages

170 Obviously the damages payable by the employer are restricted to past and future economic loss. Moreover, the amount payable by Patrick Stevedores is entitled to be reduced by reason of the provisions of s 151Z(2)(c) Workers Compensation Act 1987. It makes sense then to focus upon the damages under the Civil Liability Act. Obviously, the economic loss factors are the same as for work injury damages.

Damages for non-economic loss

171 On the findings I have already made, Mr Hennessy had ongoing previous back trouble which was sufficient to interfere with his engagement in vigorous sports, the heaviest aspects of domestic chores and the range of options available to him for work. This latter aspect might also be taken to affect his enjoyment of life. Moreover, there is a distinct possibility, rather than probability,y that he would have come to surgery anyway sometime in the last 9 years either because of the natural progression of his condition or the infliction of a non-tortious injury. Naturally different surgery at a different time by a different surgeon may have produced a better outcome and this is a factor that needs to be borne in mind.

172 What is clear is that the effects of the injury have been severe, resulting in ongoing physical pain that requires narcotic medication due to the failure of almost every other modality of treatment. He has undergone serious spinal surgery on three separate occasions, none of which have had the intended curative effect. His pain may in large part be due to the effects of the surgery producing post-operative fibrosis.

173 He was only 23 at the time of the injury and he is now 33 years of age. On the medium life tables, he has a life expectancy of about 52 years. A long time for him to continue suffering his disabilities. They may abate somewhat in the future, but they will not go away. Some account should be taken of the psychological consequences of his chronic pain and disability in assessing damages.

174 In my judgment, this is not an appropriate area to attempt to produce a figure then reduce it by a percentage, but rather, I think, the proper approach is to put one side the known effects of the past injury and thereafter reduce what I otherwise would have awarded bearing in mind that the possible outcomes are variable.

175 It seems to me that, but for the Ghaleb principle, I would have been disposed to award damages in respect of non-economic loss which bore a proportion to a most extreme case of about 55 per cent. Taking into account the possibilities to which I have referred, I will reduce that assessment to 45 per cent of a most extreme case. This entitles Mr Hennessy to damages in the sum of $257,500.

Past out of pocket expenses

176 Past out of pocket expenses have been paid by the Workers' Compensation insurer and Mr Hennessy and Patrick Stevedores agree that as at the date of the trial, they total $243,530. They may have gone up during the long period of time when my judgment was reserved and I will grant liberty to the parties to apply in respect of any change. The real issue is whether, and if so, what discount should be made for the Ghaleb principle. In my judgment the out of pocket expenses fall into a somewhat different category. They represent what has actually happened by way of treatment for the specific consequences of the defendant's negligence. Seeking to calculate what actual expenses, or what proportion of them might have been incurred in any event enters into an impermissible realm of speculation. I propose to allow the whole amount of $243,530.

Future out of pocket expenses

177 It is most unlikely that Mr Hennessy will undergo any future surgery. His poor prognosis means that future treatment is likely to consist almost exclusively of conservative modalities, including continuation of the drug regime, at least for the foreseeable future. Both Mr Hennessy and Patrick Stevedores have suggested that the correct approach is to adopt a "cushion". There is really very little in the evidence for me to go on. The past figure provides no guide at all as to what might happen in the future. Obviously so far as Ghaleb is concerned the future is different, even though the Malec principle applies in respect of past facts as well as future probabilities. The figure proposed for Mr Hennessy is $50,000 and for Patrick Stevedores $30,000. Unsatisfactory as it is, the average of these positions as scientific as any other approach in this case. However, I will reduce the $40,000 thereby produced to take account of the probability of the pre-existing condition overtaking him in any event to $30,000.

Past economic loss

178 As I have found, the pre-existing impairment is taken into account by adopting a starting point which assumes that his pre-injury earnings as a security guard represent the full potential of his exploitation of his earning capacity, but for the injury of 21st March 2005. That consideration, however, does not entirely deal with the Ghaleb principle. It is necessary to acknowledge that even since 21st March 2005, the pre-existing condition may have overtaken him by reason either of its natural progress or by the intervention of a non-tortious other injury (see Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485).

179 I acknowledge the evidence of Dr Schutz and the report of the Vocational Capacity Centre dated 19th March 2010, that Mr Hennessy has an aptitude for clerical or administrative work. However, all attempts at rehabilitating him have failed. He performed one day in about March 2005 and returned briefly to light duties for a couple of weeks in August 2006, following the second operation. However, as I have said I prefer the evidence of Drs Brookes, Deveridge and Giblin. It seems to me that in practical terms, he has been totally incapacitated since the date of the accident and I propose to assess his damages on that basis.

180 The parties have taken Mr Hennessy's earnings as a security guard and adjusted them to take account of the effects of wage changes over the years since March 2005, but disagree somewhat about the correct approach in that regard. There is some disagreement about the relevant effect of income tax and Patrick Stevedores suggests a 20 per cent additional discount to reflect the prospect that Mr Hennessy may not have remained employed by FBIS, but may have been forced out of the workforce or at least forced to accept reduced earnings because of his pre-existing back injury and the potential for it to be affected by some other, as I have said, non-tortious injury. Mr Hennessy's approach does not allow any discount.

181 I form the view that there is no material difference in the figures and I propose to adopt Patrick Stevedores approach to their calculation. I should say that Patrick Stevedores suggest that I should discount all heads of damages by 70 per cent to take account of Dr Giblin's views. I have explained why I will not take that approach. It seems to me that a discount of 20 per cent on the past is a fair approach to the application of the Ghaleb principle. Patrick Stevedores' approach is summarised in MFI 9 and Mr Hennessy's approach in his schedule of damages (MFI 8).

182 Because of the effluxion of time since I have reserved, I will allow liberty to apply should the parties wish to address me in relation to any further changes in wage rates. I will extend the figures in MFI 9 up to the present. The period initially proposed is 440 weeks. I will add an additional 61 weeks for the period, bringing up a total of 501 weeks. The rate I allow during this period is $600.00. This takes into account a 20 per cent discount. That amount is then $300,600.

Past superannuation

183 The parties agree that I should adopt, as a rule of thumb, a rate of 11 per cent on past economic loss for the loss of employer funded contributions to superannuation. $33,066.00.

Future economic loss

184 The prognosis for Mr Hennessy re-entering the workforce on the evidence before me is grim. Were I to decide this matter on the probabilities I could not find there is a likelihood of him entering the workforce in the future. However, I am entitled to have regard to the possibilities in accordance with Malec. It seems to me the correct approach is to assume that he remains totally unfit for work until the normal retiring age for him of 67 years. The figure produced should then be discounted to take account of what might be regarded as normal vicissitudes, the prospect of the pre-existing back condition overtaking him in any event, as I have discussed, and the chance that he will obtain useful paid employment in the future. So far as that goes given his past history, I think it unlikely that he will be able to work full time. It is my view that he will be unable to work in other than the lightest, varied clerical or administrative work and even then only after retraining. Doubtless there is the prospect of long periods of unemployment because of the difficulty he will experience in finding work of such a selected type on the open labour market if he becomes fit for it.

185 Adopting the rates from MFI 9, the starting point is a net weekly rate of $790. The multiplier on the 5 per cent tables for 35 years is 875.6. This produces a figure of $619,724 which should be discounted in my judgment at the rate of 35 per cent to take account of the factors to which I have referred, the discount is $242,103.40 and the net amount allowed is $449,620.

Future superannuation

186 Again I will adopt the rule of thumb of 11 per cent, the figure is $49,458.20.

Past domestic assistance

187 Both parties accept that given his severe disability since the accident, especially after the intervention of surgery, Mr Hennessy crosses the thresholds for damages for voluntarily provided domestic assistance fixed by s 13 Civil Liability Act and that his family has actually provided that assistance to him over the years.

188 There is no agreement about the extent of the need which has been met. Patrick Stevedore says I should adopt the approach of finding that he meets the threshold, but no more and that I should make a further discount of 70 per cent to take account of the Ghaleb principle.

189 Mr Hennessy argues that he was in need of a much greater level of assistance during the period covered by the three surgeries and that at other times something in the order of 10 hours a week is reasonable.

190 From the evidence of Mr Hennessy's mother, he was capable of the usual household duties prior to 21st March 2005, although she did not have a full appreciation, apparently, of the extent of his injuries and disabilities. On the other hand, as I have remarked in a different context, that he undertook the heavy gardening and landscaping work in November 2004 shows willingness on his part to engage in heavy domestic chores. This must have been founded on a belief that it was within his capacity. The outcome demonstrates that it was not.

191 There is no clear evidence that assists me to make a precise assessment of Mr Hennessy's entitlements under this head of damage. His argument that the entitlement will have fluctuated over time is undoubtedly correct, so far as it goes. But there still remains a need over the past nine years to average things out.

192 The parties are agreed that the applicable rate across the period is $26.50. In the absence of precise evidence on this topic, I can do no better than adopt a broadbrush approach. On average I regard 8 hours per week as reasonable. This produces a weekly allowance of $212. Over 501 weeks the total is $106,212, which I will reduce by 20 per cent to take account of the Ghaleb principle. The amount allowed is $84,969.60.

Future domestic assistance

193 Once again, both parties are agreed about the need. They are also agreed that because of his parents advancing years and his wife's health issues, about which there is no issue, future domestic assistance is likely to be provided on a commercial basis. Both sides agree that the appropriate rate is $40.00 per week. They disagree about the need or the extent of the need. Patrick Stevedores argues 2 hours per week and Mr Hennessy argues 5 hours per week. Patrick Stevedores says there should be a 70 per cent discount for the application of the Ghaleb principle.

194 The position of the parties seems to be that commercial assistance is likely to be rendered more efficiently than voluntary assistance. This is not an entirely logical proposition. However, it seems to me, in view of the findings I have made about Mr Hennessy's level of disability, that the assessment of 5 hours is a modest one and I propose to allow it. I allow $200 per week for paid domestic assistance. As I have said his life expectancy on the median tables is about 52 years. The 5 per cent multiplier is 984.9.

195 I have already taken account of the pre-injury reduction of his capacity to perform domestic chores in making the assessments I have made. However, there still needs to be an allowance for the application of the Ghaleb principle for the reasons I have explained and also to take account of the effects of his own aging which may give rise to a need for extensive domestic assistance, in any event in the distant future. I think the proper rate of discount is 25 per cent. The starting figure is $195,980. 20 per cent is $39,396 and the amount allowed is $157,584.

Fox v Wood component

196 From Exhibit EE, as at the date of the Trial, Mr Hennessy had received a total of $185,443.07 in weekly payments of workers' compensation. His continuing rate was $447.70. Bringing that figure up to date, allowing another 60 weeks, it is necessary to add the sum of $26,820. Giving a total of $212,263.07 in weekly payments.

197 The tax figures shown on Exhibit EE, with respect cannot be correct, even allowing for the more generous marginal tax rates for lower income earners current these days. The approach of Mr Hennessy, which is similar to the approach of Patrick Stevedores is to take a figure of 20 per cent of the total payments as representing the tax. I will adopt this approach. The figure is $442,452.

198 Patrick Stevedores argues I should reduce this by 70 per cent for the application of the Ghaleb principle. I do not agree. Regardless of the Ghaleb principle, the workers' compensation insurer will be entitled to reimbursement in accordance with the provisions of s 151Z(1)(b) Workers' Compensation Act 1987. Mr Hennessy will be obliged to repay the whole of the amount he has received out of his damages. It seems to me consistent with the principle discussed in Fox v Wood (1981) 148 CLR 438 that he should have the whole of the tax as a head of damage by way of application of the compensatory principle. I propose to allow the sum of $42,452.

Total damages

199 Total damages assessed against Patrick Stevedores are $1,645,779.

Work injury damages

200 The work injury damages consist of the same components assessed against Patrick Stevedores of past wage loss and superannuation, future wage loss and superannuation and Fox v Wood. These total $875,196 and I assess the work injury damages in that sum.

S 151Z(2)(c)

201 Patrick Stevedores is entitled to have the damages payable by it to Mr Hennessy reduced by the difference between the contribution it could have obtained from FBIS, but for s 151Z(2)(d) and the amount of contribution recoverable under that provision: s 151Z(2)(c).

202 I have assessed FBIS' share of responsibility at 40 per cent. That represents the starting point for determining the contribution that Patrick Stevedores could have recovered: s 151Z(2)(d). Rounding things up, that is a figure of $658,312. The amount of contribution it is now entitled to recover is 40 per cent of $875,196 or, again round up, $350,079. The difference is $308,233.

203 The damages that Mr Hennessy is entitled to recover from Patrick Stevedoring therefore are reduced to $1,337,546.

204 My orders are:

(1) Judgment for the plaintiff against the first defendant in the sum of $1,337,546;

(2) Subject s 151A Workers' Compensation Act 1987 judgment for the plaintiff against the second defendant in the sum of $875,196;

(3) Judgment for the first defendant against the second defendant on the first defendant's cross-claim in the sum of $308,233;

(4) Judgment for the second defendant against the first defendant on the second defendant's cross-claim in the sum of $525,118;

(5) The first defendant to pay the plaintiff's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed;

(6) The second defendant to pay the plaintiff's costs of the proceedings in accordance with the provisions of the Work Injury Management and Workers' Compensation Act 1998 and the regulations made thereunder;

(7) The first defendant and the second defendant to bear their own costs of the cross-claims;

(8) Defer entry of judgment until 19th December 2014;

(9) Grant the parties liberty to apply in respect of damages calculations and costs which liberty is to be exercised by notice by email to my associate by 1 p.m. on 18th December 2014;

(10) Fix the matter for directions before me at 10 a.m. on Friday 19th December 2014.

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Decision last updated: 04 December 2014