Markovic v Transfield Services (Australia) Pty Limited [2006] NSWDC 70

New South Wales District Court

CITATION: Markovic v Transfield Services (Australia) Pty Limited [2006] NSWDC 70

HEARING DATE(S): 2-5 May, 29 August 2006

JUDGMENT DATE: 19 October 2006

JUDGMENT OF: Rein SC DCJ

DECISION: Verdict and judgment for the defendant.

CATCHWORDS: NEGLIGENCE - Plaintiff injured in slip on washroom floor - No breach of duty of care by building manager established - Quantum - Long term injury and economic loss as a result of accident not established

LEGISLATION CITED: Civil Liability Act 2002

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Czatyrko v Edith Cowan University (2005) 214 ALR 349 CASES CITED: Kondis v State Transport Authority (1984) 154 CLR 672 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Ranko Markovic (Plaintiff) Transfield Services (Australia) Pty Limited (Defendant)

FILE NUMBER(S): 2438/04

COUNSEL: Mr C Heazlewood (Plaintiff) Mr R Gambi (Defendant)

SOLICITORS: Beilby Poulden Costello (Plaintiff) Phillips Fox (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff's claim arises out of an accident suffered by him on 15 June 2001 at 320 Liverpool Street Darlinghurst when, in the course of his employment with Telstra Corporation Ltd ("Telstra") he slipped and fell on a wet washroom floor that he had stepped on. The premises in which the washroom was located were owned by Telstra. As a result of that accident, the plaintiff claims that he suffered a number of injuries, predominantly to his back, and he claims various heads of damage including non-economic loss, past and future economic loss, and out of pocket expenses. Mr C Heazlewood of counsel appears for the plaintiff, and Mr R Gambi of counsel for the defendant, Transfield Services Australia Pty Limited ("Transfield"). I received detailed written submissions from both counsel after transcript had been obtained.

2 The plaintiff's claim is brought in negligence against Transfield. The following particulars of negligence are relied upon: (a) failing to maintain and repair the urinal;

(b) failing to inspect or properly inspect facilities utilised by employees of Telstra;

(c) failing to devise a system or proper system of cleaning;

(d) failing to properly clean and maintain the floors on the premises;

(e) failing to maintain a system or proper system of cleaning and inspection of the floors on the premises;

(f) failing to take appropriate action to rectify the defective urinal once notified;

(g) exposing the plaintiff to a risk of injury of which it knew or ought to have known;

(h) failing to warn the plaintiff of the slippery floor;

(i) failing to erect barriers to prevent employees walking upon the said slippery floor;

(j) res ipsa loquitur.

3 In essence the plaintiff claims that Transfield failed to repair an allegedly defective lever on the water pipe above the urinal and/or failed to have an appropriate system of cleaning or inspection in place. There is no claim that Telstra breached any statutory obligation relevant to the building.

4 The plaintiff's accident occurred when he got up from his desk and went to the washroom, which was on the same level as his workstation at 320 Liverpool Street, Sydney. He said that as he stepped into the washroom, his feet slipped from under him and he fell backwards, landing on his left buttock. In the course of doing so, he allegedly put his hands out to protect himself, and also jarred his neck.

5 The plaintiff lay on the floor for a while and called out for help. Eventually he managed to get himself up and walk out of the washroom area and obtain help. While in the washroom, he noticed the lever of the water pipe above the urinal was jammed and water was running down into and over the trough, and onto the floor. The plaintiff claimed that this was the cause of the flooding on the floor surface.

6 The plaintiff said in his evidence in chief (T13.22) that this was not the first time he noticed the lever being jammed and the water overflowing from the urinal. He had noticed it on at least one other occasion. The plaintiff had on the earlier occasion simply returned the lever to its original, or closed, position and notified his team leader (a Mr Gordon Reynolds) about it. He did not notify anyone else. In cross-examination he agreed that he had complained only once and did so orally, possibly a year or so before the accident: T183.19-37. At T184.3 however he said he made numerous complaints to Mr Reynolds about the flooding or "jammed handles".

7 The plaintiff claims that he suffered a number of injuries as a result of the accident, and continues to suffer from significant ongoing disabilities and impairment. A substantial claim for economic loss is made. There is no claim for gratuitous domestic assistance.

8 Transfield managed the subject building on behalf of Telstra pursuant to a contract: Exhibit "H". Transfield was not an occupier of the building or of any part of it.

9 The contract between Telstra and Transfield sets out the basis upon which Transfield provided its services and managed the subject building. Schedule 2 of the contract sets out the service requirements. They include financial, planning, analysis, management and advisory services. Of those, the management service is the only sphere of relevance.

10 The contract between Transfield and Telstra contained, relevantly, the following clauses: "5.1 The Contractor shall in carrying out this Contract comply with the provisions of any relevant laws binding, impacting or affecting the Customer whether or not such laws would but for this clause bind, impact or affect the Contractor.

5.2 For the avoidance of doubt, the Contractor acknowledges that the Customer is subject to certain Commonwealth laws by virtue of its status, including in relation to occupational health and safety and the environment, which may not otherwise apply to the Contractor. The Contractor accepts that it is obliged under this Contract to comply with those laws as if they applied with full force and effect to its own operations. The Contractor will not take issue in relation to any obligations, whether substantive or administrative, imposed by those laws and will submit itself to any jurisdictional processes under those laws.

5.3 (a) Without limiting the generality of clause 4.1 the Contractor must comply with and ensure that its Associates comply with any Acts, regulations, local laws and by-laws, Codes of Practice, Australian Standards and the Contractor's own and Customer Environmental and Occupational Health and Safety policy, procedures and measures which are in any way applicable to this Contract or the performance of the Services. In the event of any inconsistency, the Contractor will comply with such obligations, policies, procedures or measures as produce the highest level of environmental and/or health and safety protection."

11 Schedule 2 "Provision of Network Property Operations Management Services" contained the following sections said to be relevant: "2.4.1. Facilities Management 1. The Contractor's task is to act as the focal point for all building related issues for all Network Facilities. The Contractor will be required to appoint or nominate individuals to provide this single point of contact within agreed portfolios of Network Facilities and Sites and whose tasks will include:

…

1.7. Providing a single point of reference to all network Building Users on Site and Network Facilities building related issues.

…

3. In regards to contract administration, the Contractor's role will include:

3.3. Developing maintenance procedures for all aspects of buildings and sites;

3.4. Refining Maintenance Routines to optimise and improve outcomes;

3.5. Monitoring and supervising Subcontractor and third party performance;

…

3.8. Organising day to day maintenance activities and responding to ad-hoc requirements;

3.9. Providing Fault response services in accordance with 2.4.6;

...

2.4.2. Operational Management

Telstra has 27 important Network Facilities that are defined as Strategic Buildings (Appendix A). These buildings are high rise telephone Exchanges for which the Contractor will be required to provide full time resources for building operational management purposes including:

1. Development of standard maintenance and operational procedures and routines in accordance with relevant laws, regulations, Australian Standards and Customer standard practices for the following services:

…

1.5. operation and maintenance of building management systems and associated control and ancillary equipment.

2. The daily work activities involved with the operational management component of the work includes:

2.3. Maintenance Routines;

2.4. Supervision of Subcontractor works including electrical, fire, mechanical, lifts, architectural and hydraulic services;

…

2.9. Reporting and attending to day to day Breakages and failures (architectural, electrical, mechanical, fire);

…

2.12. Maintaining detailed Site knowledge and advising of system requirements to meet building demands."

12 I do not think that clause 2.4.2 has any relevance to the matter – it is dealing with "Strategic Buildings" as defined (see Appendix "A") and the premises at 320 Liverpool Street are not included.

13 There is evidence that before the plaintiff's accident Transfield did on one occasion receive a notification from Telstra of flooding on the floor from the urinal: see T217.49-T221.57 (evidence of Mr Buono). Repairs were carried out by a plumber shortly after Mr Buono reported the problem: T228.9. Having regard to the evidence of Mr Buono (see T217.47-T218.42 and T227.1-T227.20) and the vagueness of the plaintiff's account as to when it was that he made a complaint to Mr Reynolds and noticed a problem, I find on the balance of probabilities that the complaint was acted upon by Mr Reynolds after a period of problems with the lever and the lever was repaired at least six months and up to a year before the plaintiff's accident. There is no evidence that the problem had re-occurred shortly before or around the time of the plaintiff's accident.

14 After the plaintiff's accident, a complaint was recorded at Transfield and according to Mr Buono, he notified Mr Reynolds and someone from Transfield attended and repaired the problem – no further problems with the lever or flooding of the urinal were experienced after those repairs were carried out: T228.9, T218.39, T219.11, T227.16, T228.40. The plaintiff's submissions ("PS") contended that Transfield should have called Mr Reynolds as a witness. As para 13 of the defendant's submissions "DS13" points out, there is no evidence that Mr Reynolds contacted Transfield after the repair that had occurred at least eight months before the plaintiff's accident. There being no evidence or suggestion that he did, there was no obligation on Transfield to call Mr Reynolds as a witness and no inference to be drawn from its failure to do so, even assuming that Mr Reynolds fell into the category of witnesses within Transfield's camp, which I doubt.

15 Evidence was called from Mr Geoffrey Austin, another Telstra employee, who was described as the "building manager". He was responsible for maintenance and building issues as well as safety, occupational health and welfare matters relating to the subject premises: T240.42. His evidence was conveniently summarised in DS para 14 as follows: "(i) He was employed by Telstra and moved into the subject building in 1989.

(ii) He underwent an Occupational Health and Safety course run by Telstra in about 2000/01.

(iii) He was the appointed safety officer for the subject building at the time of the plaintiff's accident.

(iv) He used the subject bathroom but was unaware of any problem relating to the urinal or water overflowing onto the floor.

(v) There were signs within the building providing an 1800 number for the purposes of contacting the defendant in relation to any faults or other problems in relation to the building.

(vi) From 1989 until the plaintiff's accident he did not contact the defendant in relation to any problem concerning the bathroom or about the lever sticking or water overflowing from the urinal.

(vii) Prior to his accident the plaintiff never came to him complaining about a problem with the bathroom concerning flooding on the floor or a problem with the lever.

(viii) The first time he became aware of any problem with the bathroom was after the plaintiff's accident.

(ix) As part of his duties, Mr Austin undertook at least a fortnightly inspection of the bathroom."

16 If anyone was in a position to know whether there was an ongoing or even intermittent problem with the urinal in the period leading up to the plaintiff's accident, particularly if there were any safety issues concerned with it, it was Mr Austin.

17 Although Mr Austin did not undertake routine inspections of the bathrooms, he was on the lookout for any problems or faults, particularly any that may be safety-related. He considered a jamming lever to be an obvious fault but did not have any cause to report such a fault to the defendant himself. In particular, Mr Austin never observed a problem with either lever, nor had any member of the staff complained to him about it jamming at any time.

18 Mr Austin was also unaware of any flooding problems in the bathroom. As the safety officer he expected that someone from Telstra would come and tell him about such an occurrence. No one ever did.

19 The defendant submitted that the Court should accept Mr Austin's evidence, particularly as it is not contradicted by the plaintiff, nor is it inconsistent with anything put by the plaintiff in his own case.

20 I accept the evidence of Mr Austin and Mr Buono. I agree that their evidence is not contradicted by the plaintiff's own evidence.

21 According to Exhibit "18", Transfield contracted the services of Tempo Service Limited ("Tempo"). The evidence pointed to adequate fulfilment of the duties of cleaning by Pasquale, an employee of Tempo: see Mr Austin's evidence at T240.25; Mr Buono at T225-226. It appears that Tempo had in place at the time of the plaintiff's accident an extensive system of cleaning: see p 43 of Exhibit "18", the evidence of Mr Austin at T240 and Exhibit "20".

22 I make the following findings of fact: (1) Telstra employees regularly used the bathroom. Mr Austin was one of those employees who used the bathroom regularly and although he did not undertake routine inspection of bathrooms, he was on the lookout for any problems and faults, particularly those that might be safety related. He considered a jamming lever to be an obvious fault – he had never observed such a fault nor had he received any complaints.

(2) The flooding that occurred on 15 June 2001 was of recent origin (given the regular use of the bathroom by staff and the regular cleaning program and the absence of any evidence to the contrary).

(3) The jamming of the lever that led to the flooding was also of recent origin.

(4) No report was made to Transfield of any jamming of the lever in the period of eight months prior to the accident.

(5) A previous jamming problem which occurred at least six months and up to a year prior to the accident had been reported to Transfield and promptly fixed when notified to Transfield.

(6) Transfield had signs in the building which made it known to all Telstra employees as to who should be contacted in the event of any maintenance problems.

(7) Telstra had in place a system for contacting Transfield when Telstra employees regarded it as appropriate to do so.

(8) For flooding to occur, it required not only jamming of the lever but also blockage of the drain.

(9) Telstra had safety officers such as Mr Austin (and indeed the plaintiff himself), whose role it was to keep a look out for any problems.

(10) The cleaning system in place was adequate both as to what had been instituted and as carried out by Tempo.

(11) Transfield delegated cleaning tasks to Tempo.

23 This is not a case in which Transfield was notified of a leak and failed to attend over a prolonged period (or indeed any period) during which period an accident occurred. The drain, I infer, must have become blocked over a short period and the leak commenced only a short period before the accident.

Liability: Issue of Law

24 The plaintiff asserts that as a result of clauses 5.1 and 5.2 (set out above in [10]) Transfield "stood in the shoes of the employer as a matter of law in that it had the same obligations and requirements as the employer to attain the necessary standard of care that the employer must provide to an employee, including a safe place of work and safe places for amenities and safe access to all of these places" (PS para 4.3). Reference is made to Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174.

25 The plaintiff's submissions then proceed to focus on the employer/employee relationship and reference is made to TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47. The plaintiff asserts that the duty imposed on Telstra is non-delegable.

26 Transfield submits that there is no employer/employee duty imposed on it in such circumstances. First, it submits that it is not the employer; second, that what is agreed between it and Telstra is not relevant as between the plaintiff and Transfield; third, Transfield points to the contractual provision which permits Transfield to subcontract. The ability of Transfield to subcontract to Tempo is inconsistent, it is said, with the plaintiff's assertion that Transfield's obligations are non-delegable.

27 It was not disputed that the plaintiff was not in fact an employee of Transfield and in my view, Transfield's position cannot be equated with that of employer of the plaintiff. The law relating to the non-delegability of an employer's obligation to its employee (see Kondis v State Transport Authority (1984) 154 CLR 672 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 and Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14) has no application here. I accept that Christie is authority for the proposition that a relationship akin to that of employer and employee is sufficient, but Christie is a labour hire case and is in no way analogous to this case (see Christie at [4], [5], [41], and [178]).

28 Whilst it is true that there is a certain category of cases in which a duty to take reasonable care to avoid a foreseeable risk of injury to another cannot be discharged by employing a qualified and ostensibly competent independent contractor (see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520), engagement of a cleaner does not fall into that category and in my view such obligation as Transfield had was capable of delegation.

29 Transfield was required to take reasonable steps in its management of the building to avoid risk of harm to employees of Telstra working in the building. Harm to employees of Telstra could arise out of:

(1) failure to rectify within a reasonable time hazards identified;

(2) failure to undertake inspections that would reveal hazards;

(3) creating circumstances which constituted a hazard.

30 In my view, it was reasonably foreseeable that if a lever in the bathroom jammed and the drain was blocked that water might spill out onto the bathroom floor before the jamming and blockage had been detected.

31 Whilst I think it was foreseeable that if the lever jammed at a time when the drain was blocked, water would or might spill out onto the floor, I think the question is whether Transfield's arrangements were inappropriate having regard to that risk. The three elements required for the tort of negligence are first, a duty owed to the injured person, second, a breach of that duty and third, damage or injury caused by the breach. So far as breach of duty is concerned, reference is required to what is often called the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40) formulated by Mason J (as he then was): was the risk of injury foreseeable (being not fanciful or far-fetched) and was the defendant's response reasonable having regard to the nature of the risk and its consequences?

32 The plaintiff asserts (PS para 4.11) that Transfield "should have had in place a proactive system designed to ensure that the flooding as occurred on this occasion did not occur or was not likely to occur and if it did, a system was in place to prevent water running for the length of time that it was necessary for it to continue to run until the trough overflowed and spilled onto the toilet floor".

33 The plaintiff asserts that Transfield failed to have any system of inspection in place to check for defects in the building (PS para 4.12).

34 In my view, Telstra did not breach the duty of care because: (1) it arranged a competent cleaning contractor to undertake regular cleaning of the washroom inter alia;

(2) it ensured that its phone number was available to all employees of Telstra should there be any difficulty with the operation of equipment;

(3) jamming of a lever would be readily observable to any person using the washroom and to the cleaner;

(4) jamming would only lead to flooding if the lever was not pushed back and if the drain was blocked;

(5) the washroom was constantly in use, and jamming would be readily detected during such use by Telstra employees.

35 The risk which is in contemplation is a risk that a lever might jam (or a tap might leak). Taking into account the fact that the cleaner would observe any blockage of the drain, and any leakage – and Telstra staff would notice any problem because they were using it – I see no requirement for Transfield to undertake spot checks of lever and taps on any basis. When a lever is jamming it can be restored to its neutral position as a temporary palliative and repaired by notification to Transfield by Telstra.

36 I do not see the flooding as indicative of a breach of the duty owed by Transfield to exercise due care in the management of the building or the cleaning process. The flooding was of short duration and there is no evidence that the cleaner knew of it or ought to have known of it, so particulars (c), (d), (e), (h) and (i) have not been made out. Such events occur in the life of man without them bespeaking negligence, so I do not think the principle res ipsa loquitur applies (2(j)) and no submissions were addressed on that point, nor are 2(a), (b), (f) or (g) made out.

37 It follows in my view that there should be a verdict for the defendant.

Quantum

38 In view of the conclusion which I have reached, it is strictly unnecessary for me to deal with quantum, but I will nevertheless deal with the issue. For reasons which I shall outline below I am not persuaded that the plaintiff suffered any long term injuries, that is, lasting beyond November 2001, as a result of the accident, or that he would reach the threshold of 15% of a most extreme case required under the Civil Liability Act 2002, although had liability been established, he would be entitled to compensation for lost wages for one month and medical expenses up until, at the latest, 13 November 2001, being expenses related to treatment for soft tissue injury to his back.

39 The plaintiff was off work following the accident on 20 June 2001 for about a month and was paid workers compensation by Telstra. From his return until he became aware of his prospective retrenchment (which was part of a general process of retrenchment and had nothing to do with the plaintiff's state of health) he remained fully employed and he earned overtime as well: see Exhibit "1". Indeed his post-accident earnings until around October 2002 were sometimes higher than his pre-accident earnings. He did explain how he was able to keep working notwithstanding his claimed incapacity but it was an explanation which was not particularly convincing and was in any event wholly dependent on acceptance of his truthfulness as a witness.

40 According to the notes of the chiropractor (Exhibit "1") on 13 November 2001 the plaintiff reported that he had no pain in his back and that there had been a restoration of normal spinal movements/biomechanics, but the plaintiff denied that he had said this: T55.14.

41 The last visit to Dr Le was on 11 October 2002. Although there was no report from Dr Le, his notes were tendered. The notes for the 11 October 2002 consultation contain the following (I have adopted the paraphrase suggested by DS para 71): "Complaining of exacerbation of back pain since last week. Has been bedridden last few days. Living in Bondi now. Complaining of right knee swelling/pain now because shifts weight to right side when walking."

I shall return to this consultation below. There is no evidence of any further attendance on any medical practitioner for the claimed physical problems other than for the purposes of this case or for the purposes of obtaining medical certificates for workers compensation.

42 There is an MRI which according to the report "points to a small broad based posterior disc bulge with no significant central canal stenosis or nerve root impingement" and "minimal facet joint degeneration. No other significant abnormality noted." There is report (a few weeks after the accident) of mild hyperemia over the left sacro-iliac region "consistent with soft tissue trauma". There are a number of medical reports which support the plaintiff's claims (for example see Dr Bleasel's report of 10 June 2004, Dr Champion's report of 11 March 2004) and Dr Fisher on the psychological aspects. Even the reports of the defendant's expert, Dr Barrett, and Dr Newcombe, offer some support for the plaintiff's case because both see the symptoms as explicable as aggravation of a pre-existing asymptomatic degenerative change (Dr Barrett) or "pre-existing but asymptomatic lumbar spondylosis" (Dr Newcombe). Importantly, however, there is information which was given by the plaintiff to the doctors which is inconsistent with the evidence before the Court, that is: (1) The plaintiff had suffered prior to the accident from pain and suffering in the neck, deep back pain and right knee pain (see Exhibit "21" and T52.32-T52.54), but he told Dr Newcombe, an expert retained by the plaintiff, that he had not had any prior lower back pain and he made no mention of the knee (see Exhibit "33"), gave Dr Champion no history of back problems (report of 11 March 2004), and told Dr Barrett that he had no symptoms from his back or knee prior to his fall at work. See also Dr Bleasel's report of 10 June 2004 in which Dr Bleasel noted the absence of any prior problems with the spine or right knee (see T52.32-T52.54); and he told some of the doctors that he had been playing squash, touch football, swimming and jogging before the accident (Dr Champion, Dr Bleasel) but there was evidence that he had problems engaging in those sports before the accident: see Exhibit "21". The past history was particularly important in any assessment of whether what appeared to be a relatively minor accident was causative of symptoms described and potentially linked to radiological information.

(2) The plaintiff told Dr Barrett, Dr Newcombe and Dr Marnie that he remained unemployed for about two years after leaving Telstra, whereas he had in fact been working in various capacities (see T32); he also told Dr Bleasel that he had not been able to obtain other work after his retrenchment.

(3) The plaintiff told those examining him that he was undertaking fairly regular treatment, whereas there is very little evidence of treatment.

(4) The plaintiff obtained medical certificates and lodged claims for workers compensation on the basis of those certificates and his inability to work: see Exhibits "2", "3", "4" and "7", and see Exhibit "E", in which Dr Le noted that the plaintiff had been "bed ridden last few days".

(5) The plaintiff told Dr Fisher that he topped the state in music and was in the top five in biology on completing the HSC – neither of which claims were true: see T38-40.

(6) He said that he had lost over $50,000 in a business venture in which he was involved after leaving Telstra and admitted that it had caused him grief. He said that he had probably told Dr Fisher, psychiatrist, of that fact, but Dr Fisher's report makes no mention of that fact.

(7) There are some other aspects relating to the medical evidence: (a) The plaintiff told Dr Salmon in relation to a report dated 23 January 2002 that he had jerked his head in the accident and that a few days after the accident, neck pain had developed. Dr Salmon noted the plaintiff complaining of "a painful lump in the left neck": report of 23 January 2002 (Exhibit "D"). This is the first time that mention is made of jerking his head, and neck pain was first mentioned in Dr Le's notes on 15 August 2001 when the plaintiff complained of feeling a lump and discomfort at the side of his neck when blowing his nose when sneezing or swallowing. In November 2002 he told Dr Marnie, an orthopaedic surgeon, that he had jarred the back of his throat during the fall "and has had symptoms in that area since".

(b) The plaintiff appears to have been walking with a pronounced limp at one stage well after the accident but it did not continue (see Dr Salmon's report of 23 January 2002 and Dr Le's report of 6 February 2002).

(c) There were no reports from Dr Le or Dr Woodards who have been the plaintiff's general practitioner at various times since the accident.

(d) The chiropractor who saw the plaintiff recorded on 13 November 2001: "No pain and restoration of normal spinal biomechanics". The plaintiff denies having said anything to the chiropractor that would have justified such a note.

(e) Even Dr Thomas Millar, an expert retained by the plaintiff said (Exhibit "D"): "He has had intermittent pain in the low back following the fall which, in my opinion, could be due to damage to the lumbo-sacral disc at the time of the fall at work on 15/06/01. However, in my opinion, because of the x-ray and bone scan findings it is difficult to explain the recurring, short lasting symptoms down the back of the left thigh which occur at the same time as the low back pain, as being due to an anatomical lesion following the fall at work on 15/06/01."

That was on p 3 of a report dated 12 February 2003 and no further report was tendered.

43 The matter referred to in [42](4) is one of considerable significance to the credibility of the plaintiff. The facts are as follows: (1) On 11 October 2003 Dr Le gave a medical certificate in the following terms (Exhibit "2"): "This is to certify that I see Mr Markovic today for recurrent back pain. His given history included that he was unable to go to work from 07/10/02 –10/10/02 inclusive. Would you kindly [consider?] this for him." (2) On the same day, Dr Le signed a medical certificate that the plaintiff was not fit for work for the purposes of WorkCover NSW (Exhibit "2").

(3) On 29 October 2002 the plaintiff sought compensation for the period 7 October to 25 October 2002. It was not disputed that compensation was paid to the plaintiff in accordance with that claim.

(4) On 17 October 2002 Dr Millar certified that the plaintiff was unfit to work from 17 to 21 October 2002 (see Exhibit "2"). (5) In the period 7 to 21 October the plaintiff is referred to as having been in attendance at courses run by Metro Screen Ltd undertaken on 11, 12 and 13 October in Video Production I (see Exhibit "4"), at evening courses in Production Management on 10 and 17 October, Producing on 16 October, and Funding the Low Budget Film on 21 October. Some of the certificates issued by Metro Screen make reference to the courses being evening courses – the certificate for Video Production I does not, and states: "Course undertaken 11, 12 and 13 October 2002" and being an introduction to video theory, camera operation, sound, lighting and editing: see Exhibit "4". (6) The plaintiff's completion of the courses is confirmed not only by certificates but by an office copy of a letter produced by Metro Screen on subpoena.

44 On the face of the material the plaintiff, whilst claiming to be unable to work at Telstra and being compensated for that inability, was training for a new career in film. The cross-examination of the plaintiff elicited some explanations for what appeared on its face to be a serious deception of his employer and its workers compensation insurer and these were: (1) the courses were all at night;

(2) he did not attend all of the courses for which he had paid;

(3) he may have obtained a medical certificate at the beginning of the week and become better: T72.34-45;

(4) he only went to the doctor in the afternoon to get the certificate because he was too unwell in the morning and he felt well enough to go to the movie course: T92.33-55;

(5) he could have been mentally in bad shape: T65.49-54.

45 I note that no attempt was given in chief to explain the inter-relationship between his alleged inability to attend work and the course: T33.51-57.

46 I set out his evidence at T65.35-T66.30 before he was confronted with the evidence of the film course: "GAMBI: Q. So would it be fair to say that if you were presenting yourself to doctors in October, November, December 2002 and getting medical certificates of unfitness for work, you must've been in pretty bad shape?

A. Sometimes my depression would be really bad as well. I just would lock myself in a hole or - you know what I mean.

Q. Just - I'll ask the question again then. If you were getting certificates of unfitness for work in October, November and December 2002 you must've been in pretty bad shape. Would you agree with that?

A. Yes.

Q. I mean, if you couldn't even go and do work which to me, correct me if I'm wrong, at Telstra appeared to have been pretty light and accommodating to your physical problems and you had to get a certificate saying you couldn't even do that, you must've been in bad shape?

A. Could've been mentally in bad shape, yes.

Q. Whatever--

A. Mm hm.

Q. --more likely than not you would've been at home?

A. Yes.

Q. --resting either because of your physical state or your mental state--

A. Yes.

Q. --not doing anything else?

A. That's correct.

Q. Apart perhaps of going for a bit of a walk because that might help you physically?

A. Yes.

Q. And not do anything else?

A. I can't recall if I did anything else, sir.

Q. Because the last thing you'd want to do is go to a doctor and get a certificate of incapacity to present to your employer if in fact you were able to do something else, physically and mentally. Would you agree with that?

A. Yes.

Q. So you wouldn't want to deceive the doctor about how bad you were at the time would you?

A. No.

Q. And you wouldn't want to deceive your employer about whether or not you could work, would you?

A. That's correct."

See also T63.35-T65.34 which leads into these questions.

47 I set out part of the cross examination at T71.44-T72.54 after reference was made to the film courses: "GAMBI: Q. You were turning up with medical certificates to Telstra so they could pay for the days you had off work while you went and did a video production course. Isn't that right, Mr Markovic?

A. No sir.

Q. Have another go at explaining it to me then?

A. I can't - I can't - I don't know the situation back then. It could've been that at the time the beginning of the day I was depressed and I didn't know what to do - I didn't want to go to work - I just - I don't know. There was all different various situations. I couldn't go to work because my back was pain so I was incapacitated of leaving the house. Sometimes I was able to leave the house, but I wasn't in the mindset to go to work.

Q. How about this as an explanation, Mr Markovic. You paid for the course some time before, you knew it was taking place starting on 11 October 2002, so you went to see Dr Le, told him you were unfit for work so he'd give you a medical certificate, handed it in to Telstra so they could pay for your time off. How's that for an explanation?

A. Sir, unless I see exactly what days those dates fell on--

Q. Let me tell you. You went to see Dr Le on 11 October 2002, he gave you a medical certificate of unfitness for work from 11 October to 14 October 2002?

A. Yes.

Q. Between the 11th or on 11, 12 and 13 October you went and did I think it was a video production course with Metro Screen at the Paddington Town Hall. How do you explain that?

A. Like I said, it could've been on a weekend and I could've felt better by then. We have rostered days off at Telstra that we can move around - there's a lot of variances. It's not - the reason why I'm explaining this to you, sir, it's not as black and white as you're suggesting.

Q. If it was a rostered day off, why did you need to present a medical certificate of unfitness?

A. For that 11th and then the doctor would've said - sometimes the doctor would say "I'll give you three days off." Q. Did you tell Dr Le, "Oh by the way, I'm too incapacitated to go to work but I'm going on a three day course"?

A. But at the time when I saw Dr Le on the 11th, I could've been incapacitated, I could've been not fit to go to the course either and then by the time the next following day or the day after came, I was in a better state to maybe go to the course and not waste the money or attend the course, cause I felt better. The certificate would've covered me over the weekend period or - like I said, sir, there's many variances. It's not as black and white.

Q. Why would Dr Le give you a certificate to cover a weekend period?

A. I don't know, sir. Like, he would've just said "Three days off, the next three days off", because we're on recall, our hours are 24 hors with Telstra, your Honour, so it's - even though we've got set times of 9 to 5, we're on call 24 hours, so even though it's a weekend, we're on call weekends as well."

48 I think it can be inferred that the courses on 11, 12 and 13 October 2002 were day courses, but I do not think that it matters whether they were day or evening courses. The assertion first that he had not been doing anything else on the days he was claiming to be unfit for work (T64.9) and then the absence of any recollection of having attended the courses on days that he had not been able to attend work (T64.16) coupled with his attempts to reconcile the attendance at the course with his inability to work at Telstra seriously impugned his credibility.

49 I am not satisfied on the balance of probabilities that the plaintiff was incapacitated for work on any of the days on which he is shown as attending film courses and for which he also claimed full compensation.

50 There were other days on which certificates attesting to his partial unfitness were obtained, being days when the plaintiff was attending night courses and in respect of which he also received compensation, and I am not satisfied that the plaintiff was unable to work on more than a part-time basis at Telstra for any of the times for which he claimed compensation after his return to work.

51 There were other matters which led me to have further doubts about the plaintiff's credibility and his case on damages: (1) The plaintiff's mention in his evidence in chief of film production (see T33.52-T34.25 and T37.50-54) was brief, and I was left with the impression that his involvement in film production had consisted of working briefly with Mr Jeff Purser who was in the industry, but that that did not continue and that although the plaintiff had aspirations to be involved in the industry, that involvement had been very limited. Cross-examination revealed that the plaintiff had bought a considerable amount of equipment, established a business, Templar Films, to produce films and spent considerable time in producing and endeavouring to market movies. In 2005 he incorporated a company, Templar Films Pty Ltd, to run the business and he has been actively involved in marketing: Exhibit "13" is an example of those efforts. (2) In his evidence in chief, the plaintiff gave evidence of having been involved in a nightclub in Melbourne: T32. His evidence in chief was that the venture lasted three to four months and involved him working only on Friday and Saturday nights "just overseeing the bar and operations of the club and I'd be doing something like six, seven hours": T33.10. Cross-examination revealed that he was also involved in recruiting and escorting performers for the bar, promoting the club, and organising (and travelling to and from concerts in Sydney (T138), Queensland (T139) and Adelaide (T144)), in respect of which the plaintiff claimed to have lost more money. He also organised a promotional event for World Cup Soccer (T134). The manner in which this evidence and that referred to in (1) came out, lead me to doubt the plaintiff's reliability as a witness on what activities he has been performing since the accident and is able to perform. (3) He was cross-examined on his evidence that he could have been working 60 to 70 hours a week at Telstra before the accident – and it was put to him that even 60 hours was an exaggeration. He said that there were times but he could not recall the number of times. When he was asked if it was even once he said "I can't recall sir": T79.24-51.

(4) He is and has been working as a security guard for 20 to 25 hours a week (T167), has obtained a certificate as a security guard (see Exhibit "15") (which he described as a training certificate) and he is still actively involved in the film industry (T126.47-54). Although he asserted an inability to work full-time as a security guard or data entry operator, it was not convincing. (5) His assertion that he had ceased treatment due to lack of funds did not sit comfortably with his substantial expenditure on film equipment and the night club venture, and the sale of his property: see T116.6 and Exhibits "C" and "T".

52 I think that the evidence establishes that the plaintiff did suffer a fall which caused him ongoing back pain. Although I have some doubt as to its precise duration, the maximum period which I would regard as being established is until November 2001. I am not persuaded that there has been any long term effect from the accident on 15 June 2001. I am not persuaded that any reduction in earnings in comparison to the Telstra period have been a result of any physical or mental incapacity as opposed to decisions to pursue alternative careers in film and the entertainment industry. The plaintiff has not established an injury equal to or in excess of 15% of a most extreme case, and the only economic loss to which he would be entitled, in my view, had he succeeded on liability is: (a) loss of income for four weeks;

(b) cost of treatment and medication up to November 2001.

Conclusion

53 For the reasons indicated I do not think Transfield has been shown to have breached any duty of care owed to the plaintiff, and there should be verdict and judgment for the defendant.

Costs

54 I will hear the parties on the issue of costs.

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