IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	 Revised
Not Restricted
Suitable for Publication	
General List		

Case No.  CI-19-05887

ANTHONY CRAIG DI PIETRO	Plaintiff	
		
v		
		
STOCKLAND DEVELOPMENT PTY LTD
(ACN 000 064 835)	Defendant	

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JUDGE:	HIS HONOUR JUDGE SMITH 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21, 22, 26 and 27 October 2020 (via Zoom hearing)	
DATE OF JUDGMENT:	3 December 2020	
CASE MAY BE CITED AS:	Di Pietro v Stockland Development Pty Ltd (ACN 000 064 835)	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1869		

REASONS FOR JUDGMENT
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Subject:		NEGLIGENCE
Catchwords: 	Personal injury claim – injury to lumbar spine – whether defendant’s negligence or breach of duties under the Occupational Health and Safety Act were a cause of the plaintiff’s injuries – assessment of damages
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013; Occupational Health and Safety Act 2004; Occupational Health and Safety Regulations 2007; Wrongs Act 1958
Cases Cited:	Czatyrko v Edith Cowan University [2005] HCA 14; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; McLean v Tedman (1984) 155 CLR 306; Davies v Adelaide Fertiliser Co Ltd (1946) 74 CLR 541; Aycicek v Flowline Industries Pty Ltd [2019] VSCA 37
Judgment:	Judgment for the plaintiff.  Damages assessed at $185,000 exclusive of interest and costs.  Defendant’s claim for reduction of Judgment sum on grounds of contributory negligence on the part of the plaintiff is dismissed.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Valiotis with
Mr G Smith	Zaparas Lawyers	
			
For the Defendant	Ms M Britbart QC with
Ms C A Kusiak	Hall & Wilcox Lawyers	

HIS HONOUR:

1	On or about 2 November 2015 (the “accident date”), the plaintiff suffered injury in the course of his employment with the defendant at premises known as the Plenty Valley Retirement Village in Epping (“the premises”).  
2	The plaintiff had been employed at the premises for some five years as a gardener and general maintenance worker.  Initially, his employment at the premises was with an entity other than the defendant.  Approximately two years before his injury, the defendant took over the management of the premises and the employment of the plaintiff.  The plaintiff’s duties remained the same.
3	Amongst the gardening duties that he was required to perform, was the trimming of a number of box hedges at the premises.  This was performed about twice per year.  There were up to thirty such box hedges.  They were of various dimensions.  Roughly, they were of a cubical shape.
4	The hedges were situated in a row on a garden bed.  On one side of the hedges, there was a concrete pedestrian footpath.  On the other, there was a shallow spoon drain adjoining a bitumen road.  
5	Trimming each hedge involved trimming the top of it to the required height and trimming each of the four sides vertically.
6	One side of the box hedge abutted the pedestrian path.  The opposite side abutted the spoon drain.  The other two sides each directly abutted the garden bed.
7	The garden bed in question had originally consisted of mulch.  Soon after the defendant took over the premises and became the plaintiff’s employer, the mulch was replaced with rocks which were described as “river rocks”.  They were of various sizes but generally rounded and smooth in nature.  Photographs of the rocks were tendered.  These photographs, although taken recently, were agreed to depict the rocks and box hedges in about the same condition and dimensions as at the time of the plaintiff’s injury.  
8	Earlier this year, the plaintiff measured the hedge on which he was working at the time of his accident His measurements were as follows:
•	Width:  1,040 millimetres
•	Depth (from the spoon drain to the footpath):  1,150 millimetres
•	Height:  900 millimetres.
9	Shortly prior to the trial date, Dr Culvenor, an engineer engaged by the defendant’s solicitors, attended the premises and measured the box hedge. He reported that it was about 1200 millimetres square at the top and about 900 millimetres high.  I consider that little turns on the differences in their measurements.
10	The measurements were roughly equivalent.  In any event, the actual measurement of a hedge will depend to a degree upon when it was last trimmed.  Hedges tend to grow with age.  The hedges were, not exactly, but roughly cubical in shape with edges somewhat more than a metre, save for the height which was a little less than a metre.  The dimensions may have altered between the accident date and the dates on which the two sets of measurements were taken – some five years later.
11	The plaintiff performed the trimming of the hedges with a petrol-powered Ryobi hedge trimmer supplied by the defendant.  It contained cutting blades of 600 millimetres in length.  In addition to the length of the blade, at one end there were two handles: one containing a trigger to operate the trimmer and the other to hold and stabilise the trimmer when in use.  
12	The parties agreed that the weight of the trimmer was not more than 6 kilograms, inclusive of the weight of fuel.
13	To cut the four vertical sides of the hedge the plaintiff used the trimmer in a swinging or sweeping motion, attempting to keep the trimmer relatively close to his body so as to reduce the stress involved in using it.  He would move along each of the four sides of the hedge, trimming it evenly.  The trimming of the horizontal top of the hedge was done by holding the trimmer horizontally and moving it over the upper surface.  
14	However, the manner and method by which the plaintiff trimmed the two sides of the hedge abutting the river rocks was a matter of considerable evidence and submissions at the trial.  
15	The plaintiff’s evidence was that it was not practicable to trim those two sides of the hedge without walking, at least to an extent, on the river rocks.  
16	The defendant’s case was that it was not necessary for him to stand on the rocks at all in order to trim those sides of the hedge, and that this could be satisfactorily achieved whilst standing on either the footpath or spoon drain and reaching forwards towards the opposite side with the trimmer.  Alternatively, the defendant submitted that the plaintiff could trim at least half of the side from the footpath and then move to the spoon drain from where he could complete the trimming of the side without setting foot on the rocks.
17	The plaintiff maintained that in order to adopt either of these methods, he would have to hold the hedge trimmer well out ahead of him, an action involving stretching, twisting and reaching, which would place considerable strain on him over a period of time.  He pointed out that the job of trimming the hedges was not a short or easy task.  There were some thirty hedges to be trimmed, although not necessarily all on the one day.  The evidence of the defendant’s manager was that the plaintiff would trim the hedges every three or six months (two to four times per year) depending on growth spurts. She stated that when trimming the plaintiff would do it every day for about a week, and that residents would complain that it took him so long.
18	The plaintiff’s evidence was that he had been trimming a side of the box hedge abutting the rocks in question and was intending to move back onto the footpath.  He said he was standing front-on to the side of the hedge and turned to step towards the footpath.  A rock under him rolled and he stumbled, lost his balance and fell, landing backwards against a green bin.  He said he had lifted his right foot, struck a rock, which rolled, causing him to stumble into the bin.  He immediately felt pain in his low back.
19	It was not in dispute that the plaintiff had suffered a serious injury to his lumbar spine.  He suffered pain and later underwent surgery to his lumbar spine in the form of a microdiscectomy and hemi-laminectomy at the L5-S1 level.  
20	The plaintiff claims pain and suffering damages only in this proceeding.  He alleged that the defendant, as his employer owed him a duty of care and that it had failed to provide him with a safe place of work, or a safe system of work
21	The defendant’s case was not that it was safe to work whilst standing or moving on the river rocks.  Rather, the defendant submitted that the plaintiff ought not to have been on the rocks at all whilst trimming this and the other box hedges.  It maintained that the sides of the hedge could be satisfactorily trimmed by the plaintiff while standing entirely on the footpath and, from the opposing end, on the spoon drain or roadway, all of which constituted a stable and safe surface from which to work.
Expert evidence
22	The plaintiff called evidence from Mr Edward Dohrmann, an engineer and ergonomist.
23	The defendant called evidence from Dr John Culvenor, also an engineer specialising in occupational health and safety, ergonomics and human factors engineering. 
24	I formed the view that much of the evidence of both these witnesses did not involve any expertise.  For instance, whether the hedge trimmer could be used to reach across from one side of the hedge to the other without the operator stepping onto the rocks was, I consider, effectively a matter of arithmetic and measurement, rather than expertise.
25	Having heard their evidence, and that of the plaintiff, I am satisfied that:
(a)	A person of the plaintiff’s size was likely to be able to stand on one of the concrete surfaces (footpath or spoon drain) and reach out with the hedge trimmer sufficiently to trim the whole side or nearly the whole side without stepping or walking on any of the rocks – assuming the dimensions of the box hedge were approximately the same as when more recently measured.
(b)	Such action would require a considerable degree of reaching, stretching and twisting.
(c)	At the time of the accident and for some years before, the plaintiff used a Ryobi hedge trimmer to trim the box hedges.
(d)	The task of trimming the box hedges was Manual Handling as that term is defined in the Occupational Health and Safety Regulations 2007 (“the Regulations”).  
(e)	Walking on the rocks whilst handling a power tool such as a hedge trimmer would be an inherently dangerous thing to do and would constitute “hazardous manual handling” as defined in the Regulations regardless of whether the operator was trimming the rocks or  merely walking across the rocks whilst holding the trimmer.
(f)	Whilst walking on the rocks the operator would be likely to be taking note of whether the surfaces of the hedge were straight, level and neat, and whether further trimming was required. 
(g)	Dr Culvenor’s evidence was that walking on the rocks was a perfectly safe activity in any circumstances.  I reject that evidence.  It is my view that one only has to look at the photographs of the rocks tendered to appreciate the obvious risks of walking on them in the course of the plaintiff’s employment, particularly when carrying a power tool, even if the trimmer was not being used at the moment that the plaintiff stumbled and fell.
(h)	The system of work adopted by the plaintiff in moving onto the rocks in order to trim the sides of each hedge that were abutting the rocks was not a safe one.
26	Senior Counsel for the defendant conceded that it would not be a safe system of work to trim the sides of hedges whilst standing or moving along the rocks abutting the edge in the manner the plaintiff described he was moving immediately before his injury.
27	I consider that when the rocks were walked upon, there was a foreseeable risk that one or more of the rocks would move underfoot, resulting in a foreseeable risk of the operator tripping, slipping or stumbling.  That risk was not fanciful nor farfetched.
28	Dr Culvenor had inspected the premises recently, taken photographs of the hedges and taken video film of a woman trimming the hedges.  The woman was currently employed by a contractor engaged by the defendant to trim the hedges.
29	The woman was depicted in the video film using a hedge trimmer to trim two of the box hedges at the premises.  She was not called to give evidence at the trial.  There is no evidence as to whether the method she used as depicted in the film was her normal method of trimming or as to what instructions she had been given as to how to trim them by her employer or the defendant, if any.
30	In the video, the woman was shown trimming all five surfaces of each of two of the box hedges.  With regard to the edges abutting the rock garden bed, she commenced by standing on the footpath and reached forwards with the trimmer to a point which I consider was a little less than halfway to the spoon drain.  She was able to do so whilst standing mainly on the path but did place part of her foot on the rocks at one point.  She then proceeded to walk across the rocks to the opposite side of the bed, from where she completed the trimming of that surface mainly whilst standing on the spoon drain.  She mainly stood on the spoon drain to complete the trimming of that surface of the hedge.  She reached, stretched and twisted forwards so as to complete the trimming of that surface.  
31	There was no evidence as to the height or reach of the woman depicted in the film.  There was no evidence of the effective reach of the plaintiff although it appeared that he was probably taller than the woman.
32	On the balance of probabilities, I am satisfied that the plaintiff could have trimmed the hedges in the same manner as did the woman depicted in the film had he determined to do so or had he been instructed to do so.  I am satisfied that at some point, after some time, the physical stress of reaching and twisting as shown would have become difficult and tiring for him.  I am unable to estimate how many such hedges could have been trimmed in that manner by either the plaintiff or the woman depicted.  Neither Mr Dohrmann nor Dr Culvenor expressed such an opinion.
33	I did note that, when trimming each of the eight vertical surfaces, the woman did place at least one of her feet on the rocks for a time.  In other words, she did not entirely avoid placing her feet on the rocks.  At one point in the film, when trimming the fourth side of the second hedge, she stood on a rock which moved laterally as a consequence. 
34	It should also be noted that when the woman carried the trimmer across from the footpath to the spoon drain (or vice versa), she took at least two or three steps on the rocks in doing so. 
35	The defendant’s manager, Ms Daly, had commenced at the premises in about March 2014, about 20 months before the accident. 
36	Ms Daly had regularly discussed gardening and general maintenance issues with the plaintiff before his injury.  She regarded him as an experienced and competent gardener and maintenance person.  I accept that he had indicated to her that he was aware of occupational health and safety issues.  She regularly walked with him around the premises.
37	I accept that Ms Daly had, at times prior to the plaintiff’s injury, observed him trimming a hedge as she passed.  On those occasions, she could not recall him standing on the rocks.  This does not indicate that he did not stand on the rocks when trimming surfaces abutting those rocks.  It merely indicates that he was not standing on rocks as she passed or that she did not note or recall that he was doing so.  Each hedge had five surfaces that required trimming.   The plaintiff only stood on the rocks when trimming the two surfaces abutting the rocks.  
38	The defendant tendered documents relating to occupational health and safety matters and which it alleged had been provided to the plaintiff prior to his injury.  
39	These included a general risk assessment document related to gardening work which provided as follows:

No	Hazard/Risk	Likelihood	Consequence	Risk Rating	Required Controls – …	
3.	● Manual Handling Injury	Possible	Minor	Moderate	…
● 	Do not overreach.  
●	Be aware of any trip and slip hazards around gardens and grassed areas before commencing work	
4.	…					
5.	● Slips, trips and falls				● 	Check over the work area before starting to check for any dips or potholes.
● 	Be aware of any changes in incline.	

40	Exhibit 8 tendered by the defendant was a document entitled “Request for Maintenance Form”.  This was a proforma document which the plaintiff would complete and hand to his supervisor, Ms Daly from time to time.  In it, he was required to detail any tasks that he considered were required to be done at the premises.  Ms Daly would then consider it and would usually authorise for it to be done.  The defendant submitted that if the plaintiff had had any problems performing his work trimming the hedges, he would and should have completed such a form.
41	The plaintiff gave evidence that he had mentioned problems with the rocks to Ms Daly before his accident, but nothing had been done about it.  He tendered an annotated map of the premises which had a heading, in the plaintiff’s hand - “tripping hazards and safety issues”.  Below this there was reference to “wooden edging” and to “river rocks to be lowered”.  Ms Daly denied ever having seen that reference. The plaintiff’s evidence concerning when these entries were made or provided to Ms Daly was in my view confusing.  It was not signed by him as a number of other unrelated entries had been. In the end, I am not satisfied, on the balance of probabilities, that that the plaintiff established that such document constituted a pre-injury complaint to the defendant about the river rocks.
42	I accept Ms Daley’s evidence that at no time before his injury had the plaintiff made any complaint to her concerning the rocks; nor had he made any other general or specific complaints concerning any difficulties he may have had in trimming the box hedges.
43	However, Ms Daly did concede that the rocks were a tripping hazard.  She stated that she had never seen the plaintiff standing on the rocks or on the mulch which had previously been on the garden bed prior to the rocks being moved there. 
Employer’s duty of care
44	An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk or by the provision of adequate safeguards.  The employer must take into account the possibility of thoughtlessness, inadvertence or carelessness, particularly in the case of repetitive work.
45	An employer owes a duty to implement a safe system of work for its employees.  In addition, its duty extends to taking steps to ensure that the system of work implemented by it is followed by its employees – that is, to enforce that performance of the safe system of work devised by it.  Accident prevention is unquestionably one of the modern responsibilities of an employer. In deciding whether an employer has discharged its common law obligations to its employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to its commands.
46	In this matter, there was no evidence that the defendant had designed or implemented any system of work to be followed by its employees when trimming the box hedges.  Ms Daly appeared to be of the view that she was entitled to leave it to the plaintiff to work out a safe system and adhere to it.  The employer’s duty of care is however, a non-delegable one.  It is my view that Ms Daly, and hence the defendant, simply delegated the task of determining and implementing a safe system for the trimming of hedges to those involved in it – in this case, the plaintiff.  It is no answer for the defendant to say that because it understood that the plaintiff had had some experience in gardening work or even that he appeared to have some knowledge of general occupational health and safety issues, that it was entitled to delegate the task to him.  There was no evidence that the plaintiff had any real expertise in occupational health and safety issues, risk assessments or the like.
47	It is also no answer for the defendant to submit that it had no knowledge that, in trimming the hedges, the plaintiff performed a significant part of that task whilst standing and moving across the rocks.  I find that the defendant, over the time of its employment of the plaintiff, had no idea as to how the plaintiff performed those trimming duties.  There is no evidence that it ever watched him do the task or arranged for anyone to inspect the method adopted by him.  It is no answer that he had made no complaint to Ms Daly or anyone else at the defendant concerning the rocks.
48	It was the defendant’s duty to implement a safe system of work for its employees and to ensure that it was followed by them.  
49	I am satisfied that the defendant breached the duty it owed to the plaintiff, in that it:
•	failed to implement any safe system of work for the trimming of the box hedges; 
•	failed to provide the plaintiff with a safe place of work; and 
•	failed to provide the plaintiff with any instructions as to how to safely perform the task in question.
50	I consider it was reasonably foreseeable that an employee such as the plaintiff who was walking across these rocks in the course of his employment, would trip, stumble and fall.  The precise nature of the injuries suffered need not have been actually foreseen by the employer – it is enough if the employer could reasonably foresee that if he tripped and fell, there was a real risk that he could injure himself.  That likelihood was neither far-fetched nor fanciful.  
51	There were, in my opinion, a number of things that the defendant could have done in response to that reasonably foreseeable risk.  
52	Firstly, the plaintiff ought to have been specifically instructed not to walk across or step on the rocks in the course of his trimming duties.
53	Secondly, if it was thought necessary that the rocks remained in the garden bed in question, the garden bed could have been dug down so that each of the rocks were lower and rested on firm earth.  Rounded, smooth rocks sitting on top of one another is, in my view, obviously an unstable surface to walk on. I do not accept the evidence of Dr Culvenor to the contrary. 
54	Thirdly, the rocks could have been removed at least from the immediate vicinity of the box hedges.  If a strip of concrete similar in design to that of the footpath had been placed down either side of the box hedges, it would not have been necessary for an employee to walk on rocks or to reach, twist and strain to achieve the job from the footpath or from the spoon drain or beyond.  
55	Fourthly, a flat and level board could have been provided for the hedge trimmer to stand on.  The board would have to have stood clear of the rocks in order for it to be a stable working surface.  This could have been achieved by lowering the rocks and having the board sit on the footpath at one end and on the roadway at the other.  This may not have completely removed all risk of tripping or stumbling but it would, in my view, have significantly reduced that risk. In fact, it was Ms Daly who put forward to her supervisors the suggestion of a board over the rocks shortly after learning of the plaintiff’s accident.  There was no evidence put forward by the defendant that such a solution was impracticable.  
56	It is not to the point that the plaintiff may have been able to trim the hedges in the same manner as the woman demonstrated in the video film tendered.  Firstly, I am not satisfied that the manner in which she trimmed the hedges was necessarily a safe system.  She, from time to time, stood on the rocks.  At one point, she stood on a rock and dislodged it, evidencing an unstable surface.  The film showed that other rocks had either been dislodged from the garden bed or had in some way ended up on the spoon drain and roadway.  Given their shape and smoothness, this should not surprise.  I am of the view that reaching forward over the rocks, to avoid stepping on them, would cause considerable strain, especially if done repetitively.
57	Fifthly, if there was no way of rendering the rocks safe, and it was likely that an employee trimming the hedges would walk or step onto the rocks, the rocks could have been removed.
58	And finally, the hedges themselves could have been removed.
59	Although the plaintiff’s accident did not involve him being struck by the cutting blades of the trimmer when he stumbled, in my view, it was an obvious risk that a serious injury could occur if the operator tripped or stumbled on the rocks whilst operating the trimmer.
60	I am satisfied that the defendant breached its duty of care owed to the plaintiff in that it:
•	failed to implement any safe system of work for the trimming of the box hedges; 
•	failed to provide the plaintiff with a safe place of work; and 
•	failed to provide the plaintiff with any instructions as to how to safely perform the task in question.
61	Further, I am satisfied that those breaches were a cause of the plaintiff’s injuries.
Statutory Regulations
62	I am satisfied that the manner in which the plaintiff had trimmed the hedges from the rocks over the five years prior to his injury constituted Hazardous Manual Handling as defined in the Regulations.  Of those years, the defendant was the plaintiff’s employer for about two of them. 
63	The defendant was required to conduct a risk assessment and take reasonable steps to eliminate or reduce the risk of injury to its employees or, at the very least, to provide adequate instructions and/or warning concerning the risk.
64	I am satisfied that the defendant undertook no risk assessment; neither did it take any steps to eliminate or reduce the risk. There was no evidence as to whether the plaintiff’s previous employer undertook any such risk assessment.
65	It follows that I am satisfied that the defendant breached Regulations 2.1.2 and 3.1.2 and that each of such breaches was a cause of the plaintiff’s injuries.
Contributory negligence
66	The defendant submits that, if, contrary to its Defence, it is found to be negligent and that its negligence was a cause of the plaintiff’s injuries, there was contributory negligence on the part of the plaintiff.
67	In its Defence, the defendant particularises that contributory negligence as follows:
(a)	Failing to comply with the Gardening safe work procedure signed by the plaintiff on 1 April 2014;
(b)	Failing to watch where he stepped;
(c)	Failing to lift his foot above the rock so that he did not knock it onto the 	path;
(d)	Failing to keep any proper lookout;
(e)	Failing to pay attention to what the plaintiff was doing.
68	In her written closing submissions, Senior Counsel for the defendant particularised the alleged contributory negligence somewhat differently:
“●	Performing hedge trimming work on the river rocks when he knew the rocks represented an unstable surface on which to stand.
 ●	Failing to even attempt to perform his work in accordance with the work procedures which required him to maintain stable footing; and/or
 ●	Failing to lift his foot high enough when exiting the river rock garden bed (T73.26).”
69	Insofar as these amount to an amendment of those pleaded particulars, no objection was taken by the plaintiff.
70	The onus rests upon the defendant to prove contributory negligence on the part of the plaintiff.
71	Contributory negligence is not to be confused with inadvertence, some accidental movement, or some misjudgement on the part of the plaintiff. 
72	This is not a case where there are allegations that the plaintiff was working in an irresponsible manner or larking about.  It is not in issue that the plaintiff was performing his normal gardening duties – trimming the hedges, with equipment provided by the defendant – a task that he was required by the defendant to perform.  
73	Performing the task in the manner that he did involved no personal gain for him.  
74	I accept that the plaintiff was well aware of the characteristics and location of the river rocks in question.  They had been in the same position for nearly two years – for nearly all of the period of his employment with the defendant.  I find that he did not, prior to his injury, advise the defendant or its manager that the rocks constituted a dangerous surface from which he was performing his hedge-trimming duties.  However, that is not the end of the matter.
75	It is my view that the plaintiff did not make such complaint to the defendant for any other reason than he simply did not perceive the risk in question.  
76	The defendant was in a very different position.  It owed a positive duty to implement a safe system of work for its employees and to ensure that safe system was followed by its employees.  It failed to do so.
77	It is my view that, insofar as the plaintiff concluded that it was safe for him to perform trimming duties whilst moving across the rocks, this was a straightforward misjudgement on his part.  It could not, in my view, amount to contributory negligence.  In Podrebersek, the High Court said:
“… It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account.  The question was whether, in those circumstances and under those conditions, the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence … .”
78	I accept that the plaintiff did sign a document entitled “Gardening – SWP”.  I accept that SWP referred to “Safe Work Procedure”.  The plaintiff signed the document on 1 April 2014, shortly after he became employed by the defendant.  The document contains a number of general and varied instructions including working in the shade were possible; having an adequate supply of drinking water onsite, planning work and taking frequent rest breaks et cetera.  Some more specific safety advice is also provided.  For instance, at clause 1.16, the employer advised that, if working at heights is required – correct working at heights equipment/techniques must be supplied – refer to Working at Heights SWP.  It did not advise what those techniques were.  A direction is given in clause 1.17 not to smoke while undertaking any gardening works.  Under the heading “Pre-start – inspection of work area”, employees are advised to clear the work area of any people and obvious hazards (for example hoses, sprinklers, equipment, “stones”, branches et cetera) before commencing work.
79	Clauses 4.16 through to 4.25 come under the heading “Hedge Trimmer”.  
80	Clause 4.1 advises the employee to – “Keep a firm grip on the hedge trimmer, always hold it firmly with both hands by the two handles and ensure a firm footing”.
81	Clause 4.23 advises the worker “Do not over reach or overstretch”.  It did not explain what over-reaching or over-stretching might be.
82	Clause 4.24 advises the worker to “Remain conscious of surroundings when using hedge trimmer – take frequent breaks and inspect the area for hazards”.  It is difficult to accept that this advice referred to the river rocks. They were a permanent feature of the garden beds – not items that unexpectantly might appear from time to time.
83	The defendant submits that it should have been evident to the plaintiff that working from the rocks was not ensuring a firm footing.
84	I consider that the plaintiff, in effect, devised his own system of work as previously described.  He considered that reaching sufficiently far in front of him to reach the far side of the hedge involved considerable reaching, bending and twisting, and considered it would soon become exhausting.  He elected to work his way down the sides of the hedges which abutted the rocks by stepping on the rocks in the mistaken belief that it was safe to do so.  It is in this sense that I consider that this was a misjudgement on his part.
85	I am not satisfied that the defendant has discharged the onus upon it of establishing contributory negligence on the part of the plaintiff.
Damages
86	It was not in issue here that the plaintiff suffered a serious injury to his low back which required substantial surgery to his lumbar spine in the form of a microdiscectomy and hemilaminectomy at the L5-S1 level.  
87	Following the accident, he suffered from severe low back pain and left sciatica.  He was prescribed strong painkillers in the form of Tramadol, Lyrica and Ibuprofen.
88	At surgery in June 2016, a large disc fragment was resected. 
89	Following surgery, it appears that all symptoms of sciatica ceased.  He continued to suffer from low back pain, for which he continued with strong prescribed painkillers.  He was treated with physiotherapy, which assisted him.  He returned to work on restricted duties.  He initially reported that his back pain generally improved as the day progressed.
90	In December 2016, WorkCover withdrew his physiotherapy treatment.  This resulted in increased symptoms of back pain, such pain being then suffered throughout the day.  By April 2018, his general practitioner, Dr Alaskary, reported that the plaintiff had said that he had just learned to live with the pain.
91	In his description to the Court of the effect of his injury upon him, I considered that the plaintiff was stoic and tended to understate his problems.  He is certainly to be commended for the manner in which he has got back into the workforce.
92	Although he has ongoing low back pain, by late 2016, he had returned to his pre-injury hours of employment with the defendant.  He has had no significant time off work due to back pain in the last four years.  He continues to work in a maintenance position with the defendant, is able to climb ladders, does painting and plastering work and fixes air conditioning leaks.  He has been unable to return to his gardening work.
93	In addition to his work with the defendant, the plaintiff does odd jobs for residents at the premises and for some of his neighbours.
94	The plaintiff still lifts items of furniture with assistance on occasions.
95	The plaintiff’s evidence was that he still experiences weekly back pain at a level of about 7 to 8 out of 10.  I accept that he is not prescribed any medication for pain but takes Panadol a couple of times per week.
96	Mr Patrick Lo, the plaintiff’s treating neurosurgeon, has not seen the plaintiff since May 2017.  At that time, he noted the plaintiff complained only of minor back pain.  He considered that the plaintiff’s short-term prognosis was extremely good, but that it was likely that degenerative changes would hasten, and that deterioration would occur.
97	In June 2020, Dr Brazenor, a neurosurgeon engaged by the defendant to assess the plaintiff, reported that, as a result of his injury, the plaintiff can never again do a job which involves bending at the waist, twisting at the waist, repeated accessing of levels of less than 600 mm above the surface on which he stands, level activities involving bending or twisting at the waist, or vigorous pushing or pulling movements. He further opined that:
“He is 52 years of age at this time, and at some stage in the next five years I believe that pain from recurrent bending …will increase in pain or disability, and either stop him from working completely, or restrict his duties to those falling strictly within the guidelines in the foregoing.”
98	Professor Bittar, neurosurgeon, reported in June 2020 that the plaintiff’s radiological investigations demonstrated continuing residual left S1 radiculopathy. He thought he had a continuing partial incapacity for employment.
99	Professor Bittar also was of the view that the plaintiff’s low back would deteriorate in the future. 
100	I accept that the plaintiff suffered significant back pain and sciatica leading up to major surgery which has, at least in the short term been successful. However, although he has made a relatively good recovery following surgery, he is nevertheless restricted in what he can do currently, and those restrictions are likely to increase in future years. I accept the medical evidence that the plaintiff’s pain and the extent of his current disability are likely to deteriorate and result in significantly reduced employment prospects and significantly reduced enjoyment of life, including the likely loss of satisfaction and enjoyment from employment. 
101	In addition to physical injuries, I accept that the plaintiff suffered from depression which arose as a consequence of his low back injury.  I accept that this condition has settled in recent years.
102	The plaintiff is fifty-three years old.  I consider that I can take judicial notice of his life expectancy being a further thirty to thirty-five years or so, allowing for normal vicissitudes of life.  I accept that in his later years, he is likely to suffer increasingly from back pain and loss of enjoyment of life.
103	In all of the circumstances, I consider that an award of damages of $185,000 is fair and reasonable.
104	Since originally publishing these Reasons to the parties, I have received Consent Orders from the parties dealing with costs, and details of the amount paid to the plaintiff pursuant to s343 of the Workplace Injury Rehabilitation and Compensation Act 2013.  I therefore make the following Orders on the basis of consent:
Orders
(a)	There be judgement for the plaintiff in the sum of $171,624.00, being damages as assessed by the Court in the sum of $185,000.00 reduced by $13,376.00 in accordance with s343(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013;
(b)	The plaintiff pay the defendant’s costs of 26 October 2020;
(c)	Otherwise, by consent, the defendant pay the plaintiff’s costs of the proceeding including any reserved costs on a standard basis to be assessed by the Costs Court in default of agreement;
(d)	By consent, certify:
(i)	Leading Counsel’s fee on brief at $5,300 per day for six days;
(ii)	Leading Counsel’s fee for one day’s preparation for trial at $5,300, together with five hours’ conferences at $530 per hour, and one day’s preparation of written submissions at $5,300;
(iii)	Junior Counsel’s fees at one half of those of Senior Counsel. 
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