Ali Khan Babayi v Eden Park Fruits Pty Ltd
[2023] NSWSC 473
•5 May 2023
|
New South Wales |
Case Name: | Ali Khan Babayi v Eden Park Fruits Pty Ltd |
Medium Neutral Citation: | [2023] NSWSC 473 |
Hearing Date(s): | 29 October – 9 September 2022 |
Date of Orders: | 5 May 2023 |
Decision Date: | 5 May 2023 |
Jurisdiction: | Common Law |
Before: | Harrison AsJ |
Decision: | (1) The plaintiff is granted an extension of time to commence proceedings as against the second defendant up to or including 19 May 2021. |
Catchwords: | NEGLIGENCE – General principles – Duty of care – Foreseeability of risk – Causation – Personal injury – Expert medical evidence – Liability – Contributory negligence – Liability not found. |
Legislation Cited: | Civil Aviation Safety Regulations 1998 (Cth) |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 |
Texts Cited: | Review of the Law of Negligence (Final Report, September 2002) |
Category: | Principal judgment |
Parties: | Ali Khan Babayi (First Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2019/17333 |
JUDGMENT_Toc133404727
Extension of time against the second defendant_Toc133404728
The pleading framework_Toc133404729
The plaintiff’s background_Toc133404730
The evidence of Mr Roweth, the Owner and Occupier of Eden Park_Toc133404731
The plaintiff’s versions of the accident_Toc133404732
The mechanism of the plaintiff’s injury_Toc133404733
Obvious risk – Pleaded by Eden Park_Toc133404734
Sections 5B, 5C and D of the Civil Liability Act_Toc133404735
Duty of care_Toc133404736
Scope of duty_Toc133404737
Sections 5B and 5C_Toc133404738
Credibility_Toc133404739
Contributory negligence_Toc133404740
Contribution_Toc133404741
Surveillance footage_Toc133404742
Mr Qamberi’s evidence_Toc133404743
Medical evidence_Toc133404744
Complex Regional Pain Syndrome (‘CRPS’)_Toc133404745
Future earning capacity_Toc133404746
Prognosis_Toc133404747
Future treatment_Toc133404748
Psychiatric evidence_Toc133404749
Diagnosis_Toc133404750
Summary of my findings in relation to the medicolegal evidence_Toc133404751
Quantum – Damages_Toc133404752
Non-economic loss (as between the plaintiff and the first defendant)_Toc133404753
Economic Loss – Past and future_Toc133404754
Future loss of earning capacity_Toc133404755
Section 151Z(2) of the Workers Compensation Act 1987_Toc133404756
Out-of-pocket expenses_Toc133404757
Future medical expenses and treatment_Toc133404758
Future treatment_Toc133404759
Attendant care services_Toc133404760
Past domestic care and assistance_Toc133404761
Future domestic care and assistance_Toc133404762
Occupational Therapists’ evidence_Toc133404763
Past care or assistance_Toc133404764
Future care_Toc133404765
Past and future attendant services_Toc133404766
Result_Toc133404767
Costs_Toc133404768
JUDGMENT
HER HONOUR: This is an unusual case. This judgment concerns a personal injury suffered by the plaintiff when he was engaging in pruning water shoots on apple trees. Most issues in these proceedings are highly contested.
The plaintiff is Ali Khan Babayi. The first defendant is Eden Park Fruits Pty Ltd (‘Eden Park’). Pak Farm Contractor Pty Ltd (‘Pak Farm’), the plaintiff’s legal employer per their employment contract has been deregistered. The second defendant is Workers Compensation Nominal Insurer (‘the insurer for the former employer’). These proceedings are governed by the Civil Liability Act 2002 (NSW) (‘Civil Liability Act’).
The plaintiff’s evidence
The plaintiff relied upon two evidentiary statements dated 30 August 2021 and 15 July 2022 and was cross-examined at length. He gave evidence with the assistance of a Hazaragi interpreter.
Lay witnesses
Scott Roweth is a director of the property where the accident occurred. He provided a detailed witness statement dated 18 March 2022. He was not cross-examined. Saleem Qamberi is a close friend of the plaintiff. He provided two statements dated 3 March 2022 and 21 August 2022. He was cross-examined. The plaintiff’s daughter provided an affidavit filed 5 September 2022 made towards the end of the hearing (“Ex F”). Most of its contents were disallowed. On the evidence that was ruled admissible, the plaintiff’s daughter was not cross-examined.
The experts
All of the experts in their respective specialities provided individual reports, wrote joint reports and gave evidence in conclave. This includes: the liability conclave of Mr Kim Patrick and Mr Steve Williams; the orthopaedic and rehabilitation conclave of Associate Professor Seamus Dalton, Dr Frank Machart and Dr Medhat Guirgis (Dr Guirgis via videolink from Italy); the neurologist conclave of Dr Dan Milder and Professor Robin Fitzsimons; the psychiatrist conclave of Drs Rosalie Wilcox and Anthony Dinnen; and the Occupational Therapist Conclave of Susan Dinley and Christian Byrnes.
Extension of time against the second defendant
I should first deal with the plaintiff’s application for an extension of time to commence proceedings against the second defendant.
The plaintiff relied on the Workers Compensation Act 1987 (NSW) s 151D. The second defendant does not oppose this application. Section 151D reads:
“151D Time limit for commencement of court proceedings against the employer for damages
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”
The plaintiff relies upon the affidavit of his solicitor, David Hanson of Carters Law Firm (‘Carters’) dated 29 August 2022 to explain the delay. The solicitor’s explanation is largely procedural so it falls within his knowledge.
On 14 February 2018, Verifact, an investigation company, requested particulars on behalf of QBE, the workers compensation insurer. By letter dated 21 February 2018, the law firm for the plaintiff, Carters provided answers in response to that request.
By letter dated 2 March 2018, Verifact requested further particulars. By letter dated 18 December 2018, Carters Law Firm provided further answers.
During 2018, the plaintiff was still undergoing treatment and rehabilitation about his injuries. That treatment and rehabilitation included participating in a pain management program at Royal North Shore Hospital.
On 17 January 2019, the plaintiff commenced these proceedings in this Court against the first defendant only.
As at January 2019, the solicitor, Mr Hanson, had not formed the view that the plaintiff's matter was ready to proceed with a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW). In particular, given the plaintiff's treatment and rehabilitation, Mr Hanson had not formed a view as to whether the plaintiff’s injuries had stabilised.
On or about 21 January 2020, the plaintiff and GIO entered into a Complying Agreement confirming the parties' agreement that the plaintiff be paid lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW) compensation for a degree of 49% permanent impairment as assessed by Dr Machart.
In letters dated 14 April 2020, Carters made a Work Injury Damages claim on behalf of the plaintiff.
By letter dated 8 September 2020, GIO issued a s 78 Notice under the Workplace Injury Management and Workers Compensation Act 1998 about the Work Injury Damages claim.
By letters dated 29 September 2020, Carters Law Firm served a Pre-Filing Statement on GIO, the employer and Gillis Delaney Lawyers. By letter dated 27 October 2020, Gillis Delaney Lawyers served a pre-filing defence.
On or about 8 December 2020, Carters filed with the Workers Compensation Commission an Application for Mediation of a Work Injury Damages Claim. On 16 December 2020, Gillis Delaney Lawyers served a response to an Application for Mediation. On 16 December 2020, the Workers Compensation Commission emailed to the parties a Certificate of Mediation Outcome.
On 19 May 2021, Carters Law Firm filed an Amended Statement of Claim (‘ASC’) joining the Workers Compensation Nominal Insurer as the second defendant in these proceedings. The Workers Compensation Nominal Insurer was named because the plaintiff's employer company was deregistered.
On 24 June 2021, Registrar Jones granted the plaintiff leave, nunc pro tunc, to bring these proceedings against the Workers Compensation Nominal Insurer under section 5(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).
Resolution
The second defendant does not allege that it suffers any prejudice. I am satisfied that the solicitor for the plaintiff has provided a satisfactory explanation for the delay in joining the second defendant in these proceedings. Hence, I granted the plaintiff an extension of time to join the second defendant up until and including 19 May 2021.
The pleading framework
On 19 May 2021, by way of an amended statement of claim, the plaintiff relevantly pleads:
“…
[3] On 20 January 2016, the First Defendant was the occupier of agricultural property located at [the property].
[4] The Property contained an apple orchard.
[5] On 20 January 2016, the Plaintiff, in the course of his employment by Second Defendant as a fruit and nut picker, was within the Property.
[6] On 20 January 2016, the Plaintiff, while in the course of his employment with the Second Defendant, was pruning an apple tree within the Property using a bow ladder and a lopper tool.
[7] On 20 January 2016, at about 7.15 am, the Plaintiff was standing on the top and second from the top rung of the bow ladder, using the lopper tool to reach for and prune high branches of an apple tree, at which time he fell from the ladder, and a distance of approximately 2.5 metres, to the ground, causing harm to the Plaintiff.
…
First defendant – Duty of care
[8] At all material times, the First Defendant, as occupier of the Property, owed the Plaintiff a duty to exercise reasonable care to provide a premises which was free of reasonably foreseeable and preventable risks of harm to the Plaintiff.
[9] At all material times, and while the Plaintiff was within the Property, there was a risk of workers and contractors suffering personal injury by falling from heights whilst using ladders to prune fruit trees.
[10] The risk of serious harm by impacting with the ground after falling from height whilst pruning apple trees was foreseeable within the meaning of section 5B(1)(a) of the Civil Liability Act 2002 (NSW) ("the CLA").
[11] The risk of harm was not insignificant within the meaning of section 5B(1)(b) of the CLA.
[12] As occupier of the Property, and in response to the risk of harm, a reasonable person in the First Defendant's position would have taken reasonable precautions against the risk of harm.
First defendant – Breach of duty
[13] In breach of its duty of care to the Plaintiff, the First Defendant failed to take precautions against the risk of harm as would a reasonable person in the First Defendant's position.
First defendant – Causation
[14] But for the First Defendant's breach of duty of care:
(i) the Plaintiff’s fall from height, from the ladder, would not have occurred; and,
(ii) the Plaintiff would not have suffered injury.
[15] By reason of the matters pleaded above:
(i) the First Defendant's breach of duty of care was a necessary cause of the harm to the Plaintiff within the meaning of section 5D(1)(a) of the CLA; and,
(ii) for the purposes of section 5D(1)(b) of the CLA, it is appropriate for the scope of the First Defendant's liability to extend to the harm so caused.
[16] As a consequence of the First Defendant's breach of duty of care, the Plaintiff suffered, and continues to suffer, loss, damage, injury and disability.
Pak Farm – Duty of Care
[17] At all material times. Pak Farm, as the Plaintiff's employer, owed the Plaintiff a nondelegable duty to take reasonable care to protect him against any foreseeable injury that may arise in the course of his employment.
[18] At all material times. there was a risk that the Pak Farm's employees (including the Plaintiff) would suffer serious harm by impacting with the ground after a fall from height. whilst using ladders to prune fruit trees.
[19] The risk of serious harm by impacting with the ground after falling from height whilst pruning fruit trees was foreseeable within the meaning of section 5B(1)(a) of the Civil Liability Act 2002 (NSW) ("the CLA").
[20] The risk of harm was not insignificant within the meaning of section 5B(1)(b) of the CLA.
[21] As the Plaintiff’s employer. And in response to the risk of harm, a reasonable person in Pak Farm’s position would have taken reasonable precautions against the risk of harm.
Pak Farm – Breach of Duty
[22] In breach of its duty of care owed to the Plaintiff. Pak Farm failed to take precautions against the risk of harm as would a reasonable person in Pak Farm's position.
Particulars of Negligence
(a) Failure to provide a height adjustable elevated working platform for use while pruning trees within the Property.
(b) Failure to provide a ladder of suitable height for pruning trees within the Property.
(c) Failure to provide a ladder with steps or rungs of suitable width for pruning fruit trees within the Property.
(d) Failure to provide a ladder with non-slip steps or rungs,
(e) Failure to provide any induction, training or instruction on the safe use of bow ladders within the Property.
(f) Failure to provide the Plaintiff any induction, training or instruction on safe working from heights within the Property.
(g) Failure to provide a safe system of work for persons working at height in and about fruit trees.
(h) Failure to provide the Plaintiff with any personal fall protection device for use when pruning fruit trees.
(i) Failure to provide suitable pruning tools so as to prevent overreaching from ladders,
(i) Failure to provide suitable pruning tools so as to prevent the use of the top two rungs of ladders within the Property.
(k) Failure to properly monitor, inspect and supervise the Plaintiff in the performance of his work.
(l) Failure to comply with duties, obligations and recommendations under the Work Health and Safety Act 2011 (NSW): Work Health and Safety Regulations 2011 (NSW): Code of Practice - Managing the Risk of Falls at Workplaces 2011.
(m) Failure to implement and maintain a system of hazard identification. assessment and control of risks of falls from height within the Property.
(n) Failure to develop, implement and maintain a safe work procedure for the task of pruning fruit trees from height.
Pak Farm – Causation
[23] But for the Pak Farm's breach of duty of care:
(i) The Plaintiff's fall from height, from the ladder, would not have occurred: and,
(ii) The Plaintiff would not have suffered injury.
[24] By reason of the matters pleaded above:
(i) Pak Farm's breach of duty of care was a necessary cause of the harm to the Plaintiff within the meaning of section 50(1)(a) of the CLA: and,
(ii) for the purposes of section 5D(1)(b) of the CLA, it is appropriate for the scope of Pak Farm's liability to extend to the harm so caused.
[25] As a consequence of Pak Farm’s breach of duty of care, the Plaintiff suffered, and continues to suffer, loss, damage, injury and disability.
Second Defendant – Third Party Claim
[26] On 20 January 2016, Pak Farm was the Plaintiff's "employer' within the meaning of the Workers Compensation Act 1987 (NSW) ("WC Act").
[27] On 20 January 2016, and at all other material times, the Second Defendant was Pak Farm's insurer for the purpose of the WC Act.
[28] At all material times:
[28.1] Pak Farms was an "insured person" within the meaning of section 3(1) of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ("Third Party Claims Act");
[28.2] Pak Farms had a "liability" to the Plaintiff within the meaning of section 3(1) of the Third Party Claims Act;
[28.3] the "liability" pleaded in paragraph 28.2 above was an "insured liability" within the meaning of section 3(1) of the Third Party Claims Act.
[29] By reason of the matters pleaded in paragraphs 26 to 28 above, and by operation of section 4 of the Third Party Claims Act. the Plaintiff:
[29.1] is entitled to recover the amount of the "insured liability" from the Second Defendant; and
[29.2] the Second Defendant stands in the place of Pak Farms as if these proceedings were proceedings to recover damages and costs against Pak Farms.
[30] In the premises, the Plaintiff claims damages as against the Second Defendant by reason of the matters pleaded in paragraphs 17 to 25 above.”
It is not in dispute that the first defendant was the occupier of the property. Nor is it in dispute that Pak Farm was the plaintiff’s employer engaged by way of contract.
By way of defence filed 14 July 2021 the first defendant relevantly pleads:
“…
[10] The first defendant denies paragraph 13 of the amended statement of claim and each of the particulars alleged against it, and further says:
…
d. The plaintiff carried out work at the direction of his employer pursuant to that subcontract;
e. The plaintiff’s employer was responsible for supervising and overseeing the aspects of the plaintiff’s occupational health and safety whilst in the course of his employment; and
f. The first defendant was not responsible for the manner in which the plaintiff chose to perform the pruning.
…
[13] The first defendant denies the plaintiff is entitled to damages, interest and costs as alleged or at all.
…
[15] Further, and in the alternative, the first defendant says that if the plaintiff sustained injury, loss, and damage as alleged (which is not admitted) then it was wholly caused by, or contributed to, by the plaintiff’s own negligence. The first defendant relies upon ss 5R and 5S of the Civil Liability Act 2002 (NSW).
Particulars of Employer’s Negligence
[16] The first defendant repeats the allegations of negligence in paragraph 22 of the amended statement of claim against the second defendant.
…
[17] Further, and in the alternative, the first defendant says it was not negligent in failing to take precautions against the risk of harm to the plaintiff with respect to the matters pleaded in the amended statement of claim by reason of the provisions of ss 5B(1), 5B(2), 5C and 5D of the Civil Liability Act 2002 (NSW).
[18] In answer to the whole of the statement of claim, the first defendant says it is not negligent as the provisions of Sections 5B(1) are not met, and taking into account the factors and principles in Sections 5B(2) and 5C of the Civil Liability Act 2002 (NSW).
[19] In answer to the whole of the statement of claim and pursuant to Section 5D(1) of the Civil Liability Act 2002 (NSW) the first defendant:
(a) denies that any of its conduct caused or was a necessary condition of the harm allegedly suffered by the plaintiff; and/or
(b) denies it is appropriate for the scope of the first defendant’s liability (which is denied) to extend to any harm allegedly caused to the plaintiff.
[20] In answer to the whole of the statement of claim, the first defendant says that the provisions of the Civil Liability Act 2000 (NSW) apply to the plaintiff’s claim, including but not limited to Part 1A – Negligence and Part 2 – Personal Injury Damages.
[21] Further, and in the alternative, the first defendant says that any risk of injury to the plaintiff by virtue of not using correct technique, was an “obvious risk” as that expression is defined in s 5F of the Civil Liability Act 2002 (NSW) and no relevant duty therefore existed to warn of that risk pursuant to s 5H of the Civil Liability Act 2002 (NSW).
On 17 February 2022 the second defendant Pak Farm filed a defence to the amended statement of claim. It relevantly pleads:
[1] The second defendant admits paragraphs 1, 2A, 2B, 2C, 3 and 4 of the amended statement of claim.
[2] In answer to paragraph 5 of the amended statement of claim the second defendant admits that Pak Farm employed the plaintiff and placed to work at the property located at 942 Pinnacle Road at Canobolas in the State of New South Wales.
[3] The second defendant does not admit paragraphs 6 and 7 of the amended statement of claim other than to admit the plaintiff has satisfied the threshold to bring a claim for work injury damages.
[4] The second defendant does not plead to paragraphs 2, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the amended statement of claim, as no allegation is made against it in those paragraphs.
[5] In answer to paragraph 17 of the amended statement of claim, the second defendant admits that Pak Farm owed the plaintiff a duty to take reasonable care for his safety and that duty was non delegable but does not admit the balance of the paragraph.
[6] The defendant denies paragraphs 18, 19, 20, 21, 22, 23, 24 and 25 of the amended statement of claim and denies that Pak Farm was negligent as alleged or at all.
[7] Paragraphs 26, 27, 28 and 29 of the amended statement of claim are admitted.
[8] As to paragraph 30 of the amended statement of claim the second defendant says that the plaintiff is not entitled to the relief claimed.
[9] The second defendant does not admit that the plaintiff has sustained past and future economic loss, past and future loss of superannuation and Fox v Wood.
[10] The plaintiff’s loss and damage are not admitted.
[11] The second defendant says that if Pak Farm was negligent as alleged, or at all, which is denied, then the plaintiff by his own conduct contributed to his alleged injuries, loss and damage.
…
[13] Further, and in the alternative, the second defendant says that as a result of the injury sustained by the plaintiff, the second defendant has paid compensation under the provisions of the Workers Compensation Act, 1987 (as amended) to, for and on behalf of the plaintiff and says that pursuant to the provisions of Section 151A(1) of the Workers Compensation Act, 1987 (as amended) the second defendant is entitled to an indemnity from the plaintiff in respect of compensation payments made. The second defendant pleads this entitlement as a set off to the claim.
[14] In answer to the entirety of the amended statement of claim, the second defendant contends that pursuant to Section 151L of the Workers Compensation Act 1987 (as amended), the plaintiff has not taken reasonable steps to mitigate any damages and therefore any entitlement to damages (which is disputed) should be reduced.”
Both defendants plead contributory negligence against the plaintiff. Both defendants seek contribution and apportionment against each other. These issues will be dealt with later in this judgment.
The plaintiff’s background
In 1971, the plaintiff was born in Ghazni, Afghanistan. He is of a Hazara background.
The plaintiff’s first language is Hazaragi. He speaks and understands that language well and that includes all Hazaragi dialects. He is unable to read or write Hazaragi. He also speaks and understands Urdu fairly well. He speaks and understands Dari at a very basic level. He speaks and understands Farsi/Persian but not very well. He is unable to read or write Urdu, Dari or Farsi/Persian. He can speak and understand basic English. He can read English but not very well. He is unable to write English. Most of the interpreters who have attended his medical appointments have been Hazaragi and interpreted English into one of the Hazaragi dialects. Some have been Dari and some Farsi/Persian and interpreted into those languages. He can use a mobile phone to send basic messages in English and undertake internet banking. He also uses some social media applications.
When the plaintiff was about 4 or 5 years of age, his family moved from Afghanistan to Quetta, Pakistan. He did not attend school in Pakistan. He started working when he was very young. He would buy and sell clothing in the local bazaar and sell things on the roadside to make enough money to feed his family. During the plaintiff’s time in Quetta, Pakistan, many Hazari people in Afghanistan were killed in bombings and massacres due to their ethnicity.
In 2010, the plaintiff left Pakistan and was smuggled via Malaysia and Indonesia to Australia. He was sent to Christmas Island and spent between 2 and 3 months there. He was granted refugee status, given a visa, and transported to Sydney. He has since become an Australian Citizen. In about 2015, he was able to bring his wife, two daughters and son to live with him in Australia.
After arriving in Sydney, he did odd jobs and started a business with a friend buying wrecked cars and removing parts to sell as scrap metal.
In 2013, the plaintiff started a travel agency business in partnership with a friend, Sunny Singh (‘Sunny’). The company was called Kumayl Pty Ltd and the travel agency was called Flights Haus. The business was located at Parramatta and later relocated to Harris Park. While he was a director of Kumayl Pty Ltd, he says that he did not earn any money from that business. In about 2015, when he had a dispute with his business partner, he left the business. At the travel agency, the plaintiff’s main role was to introduce people of Hazara culture who wanted to travel to Afghanistan or Pakistan to the business. He says that he could not write flight tickets. His evidence is that he organised Pakistani visas but as he can’t write English, it seems that his assistance was very limited.
The plaintiff’s elder daughter, Homa Babayi, is currently studying at university. In her evidentiary statement dated 5 September 2022 at [29], she stated that her father’s injury changed his behaviour and that caused her a significant amount of additional stress because she does all of what she calls the ‘admin work’ for the family. If her mother or the plaintiff need to go anywhere and have things interpreted for them, she has to go with them. She uses the plaintiff’s phone or her laptop to access his bank accounts and pay the household’s bills. Whenever mail comes, she opens it and reads it to the plaintiff. She also sends emails on her father’s behalf. She thinks she has sent hundreds of emails on behalf of her father in relation to his compensation claim. Sometimes that just involves forwarding medical certificates or a document. At other times he will tell her what he wants to say in Hazaragi and she will write it in English and email it for him. When she is at home and her father wants to send a text message or other message to someone, he tells her what he wants to say in Hazaragi. She types the message in English and sends it for him. I have no hesitation in accepting her evidence as truthful. It largely accords with that of the plaintiff.
After leaving Flights Haus, the plaintiff moved to Orange, NSW to look for work and see whether he could get a job working at farms.
In early 2016, he gave his friend his phone number and the plaintiff’s phone number was passed onto Mr Syed Musavi who owned Pak Farm.
In about mid-January 2016, Mr Musavi called the plaintiff and asked whether he would be happy to work as a fruit and nut picker. He said to Mr Musavi that he was interested, and Mr Musavi offered the plaintiff a job with Pak Farm. Pak Farm agreed to pay him $1.72 gross per tree he pruned. He had to work 5 days per week between 6.30 am and 3.30 pm. It was estimated that the plaintiff would be able to prune 200 trees per day and expected to earn $1,720 per week gross ($1,500 per week after tax).
Mr Musavi told the plaintiff to go to an apple farm in Canobolas ("the property"). He understood the apple farm to be run by Eden Park.
The evidence of Mr Roweth, the Owner and Occupier of Eden Park
Scott Roweth is the sole director and shareholder of the first defendant, Eden Park. He provided a witness statement dated 18 March 2022. He was born in 1984. His evidence provided helpful and uncontentious information as to the layout of the property, the pruning of water shoots on the apple trees, as well as the role of the seasonal workers. He specified the ladders and loppers used to prune the water shoots on the apple trees.
Since 28 February 2013, Mr Roweth has operated, through his company, a commercial fruit growing business called "Eden Park Fruits".
Eden Park Fruits, grows apples at an 89-hectare site at XXX Pinnacle Road, Canobolas (‘the site’). The site includes an orchard (divided into blocks) and a packing shed. Eden Parks Fruits also grows cherries on a nearby property at XXX Wallace Lane, Sunnycrest. There are about 18,000 cherry trees on the Sunnycrest property.
The main activities of Eden Park Fruits are growing and maintaining its fruit trees (throughout the year), picking the fruit (February to March each year), packing the fruit for sale (throughout the year), and pruning the trees (ideally twice a year, in summer and winter, but usually only once per year).
In about 1992, Mr Roweth’s parents, Edwin and Julie Roweth, bought the site. In about 1996, his parents planted trees on the site and from that time they ran an apple business from the site. While growing up and during his school years. Mr Roweth did all manner of work at the site with his parents. This included planting, installation of irrigation, picking, pruning and general orchard work. After finishing school, he worked full-time in his parents' business from about 2004 until early 2013.
In early 2013, his parents retired. On 28 February 2013, Mr. Roweth began running Eden Park from the site. A family trust owns the site.
Eden Park Fruits has 3 full-time employees: himself as manager, and two orchard hands. The orchard hands do everyday tasks such as spraying trees, mowing, hail netting, and packing. It is not (and never has been) part of their role to supervise others. ln the past, Eden Park Fruits has also engaged casual employees and/or contractors to pick fruit and prune trees.
Site layout
Mr Roweth provided a map of the site with his handwritten annotations on it. He prepared this map some years ago. North is at the top of the map. The map shows the blocks where Eden Park Fruits has grown apples since early 2013 (except for a separate block, added in 2021, which is not shown and not where the accident occurred).
Those blocks are denoted on the map as Oregon Spurs block 1 (‘O/S BL1’); Oregon Spurs block 1a (‘O/S BL1a’); Oregon Spurs block 2 (‘O/S BL2"); Oregon Spurs block 2a ("O/S BL2a’); Oregon Spurs block 3 (‘Oregan Spurs BL3’); Hi Early block 1 (‘Hi Early BL1’); Hi Early block 2 (‘Hi Early BL2’); Hi Early block 3 (‘Hi Early BL3’); and Gala block (‘Gala’) Fuji block (‘Fuji 12’). The accident occurred on Oregon Spurs block 2 (Oregon Spurs are also known as “red”).
The size in hectares of each block appears directly below its name on the map. Each block has rows of apple trees on it. A photograph taken in 2019 shows, as an example, rows of apple trees in one of the blocks. Visible above the trees are hail covers (or hail nets), that sit about 6 metres above the ground in each row. They consist of white rolled fabric that opens out to create a cover to protect the fruit during bad weather.
In early 2013, when Mr Roweth began operating the business, based on the areas of the blocks, the number of rows in each block, and the spacing of trees in each row, he estimates that Eden Park Fruits had about 80,000 apple trees. In January 2016, the number of fruit trees remained the same.
From the time he started Eden Park Fruits, he has had the apple trees pruned annually so that the trunk and main branches that remain about 2.5 metres tall. This is to keep the trees and fruit to a uniform size. It also promotes tree health, allows sunlight to reach the fruit (it is not shaded by branches) and produces apples with a brighter colour.
In February to March each year, Eden Park Fruits picked fruit from its 80,000 or so apple trees and 18,000 or so cherry trees. On each occasion, Eden Park Fruits supplied orchard ladders to the workers doing the picking, so that they could reach the higher parts of the trees. Mr Roweth keeps these ladders on site for use by tree pruners and fruit pickers. There are two sizes of ladders with vertical heights of 1.8 metres and 2.1 metres. Mr Roweth is not aware of any falls from ladders at the site in those years prior to the subject accident.
Previous work undertaken by Mr Musavi
In the commercial fruit farming industry, it is not uncommon for contractors to approach farms to offer to do picking, packing or pruning. A lot of the work is seasonal.
In mid-2015, Mr Roweth was approached by Mr Musavi, who was referred to him by another orchard and offered to do pruning work at the site.
Around that time, Mr Roweth paid Mr Musavi to prune cherry trees for Eden Park Fruits. Mr Musavi had help from about 6 workers he brought along. A ‘Hydralada’ mechanical lifting platform is used to prune cherry trees but Mr Roweth and both experts of liability agreed it is not suitable for pruning apple trees. They used their own tree cutting equipment known as "loppers” and pruned about 4,000 trees. Mr Musavi used a Hydralada mechanical lifting platform during this work on the cherry trees. Mr Roweth inspected the work when it was complete and was happy with it. He did not see or hear of any accidents in connection with that work. Pruning cherry trees and apple trees is basically the same process, except that the cherry trees grown by Eden Park are taller. They are about 3 metres tall, whereas the apple trees at the site are about 2.5 metres tall (being the height of the trunk and main branches: however, vertical twigs or offshoots go higher than this).
Mr Roweth instructed Mr Musavi on the blocks he would start on at the site, and discussed when Mr Musavi would start. After this conversation, Mr Musavi provided him with a Certificate of Currency for a QBE workers compensation insurance policy in the name of Pak Farm After sighting the Certificate of Currency, Mr Roweth was happy to give Pak Farm the work. That was because his business had apple trees that needed pruning, and he was happy with the result of the cherry pruning work Mr Musavi and his workers had previously undertaken. Mr Roweth did not know if Pak Farm's workers would be the same ones as Mr Musavi had employed last time, but he had no reason to doubt they would be competent to do the job. Mr Roweth’s opinion is that pruning is a straightforward task and requires no special skill or qualification.
The agreement
On 15 January 2016, Mr Musavi returned to the site, this time with about 5 workers. Mr Roweth gave him a document titled "Contractors Agreement" (“the agreement”). It was Mr Roweth’s practice to have contractors sign an agreement in this form. Mr Musavi filled in the details by hand and signed it. It includes a clause that states.
We, the Contractor [Pak Farm] remain the legal employer of the workers provided by us to Eden Park Orchards and as such Eden Park Orchards will not be liable should any claims arise during the time of our contract.
The references in the Contractors Agreement to "Eden Park Orchards" is incorrect. That was Mr Roweth’s parents' business name. It should have referred to his business, Eden Park Fruits, but nothing turns on this.
On the same day, 15 February 2016, Mr Musavi and his workers (Pak Farm employees) began the pruning work. The pruning work was finished in late February 2016.
Equipment
Mr Musavi and Pak Farm's workers brought their own loppers to the site. The pair of loppers had a length was 75 centimetres (from the tip of the blades to about the end of each handle).
Pak Farm did not provide ladders for its workers. Eden Park Fruits supplied its orchard ladders for them to use. There was a ladder available for each worker doing the pruning. Eden Park Fruits had (and still has) about 100 or more ladders on site, so Mr Roweth can't identify which ladder was used by a given worker.
The ladders kept by Eden Park, and supplied to Pak Farm, are industry standard orchard ladders with 3 legs (a tripod style). The top rung of the ladder is cylindrical. The ladders have ''feet" on the bottom which enable them to be pushed slightly into the ground if the ground is soft. Since 1996, this type of ladder has been on site since Mr Roweth’s parents began their business. Over the years, Mr Roweth has been to about 12 of the 20 medium to large orchards around Orange NSW, where they used the same type of ladder. The manufacturer of the ladder was EDP Australia.
As previously stated, Eden Park Fruits had (and continues to have) two sizes of ladders, with a vertical height of either 1.8 metres or 2.1 metres.
Demonstration
On 15 January 2016, before work commenced on the site, Mr Roweth met with Mr Musavi to show him what work needed to be done to prune the apple trees. Although it was much the same as pruning cherry trees as Mr Musavi had previously done, he thought that he and his workers would be assisted if he demonstrated what needed to be done. As the plaintiff did not start work until 18 January 2016, he was not present at this demonstration.
Mr Roweth showed Mr Musavi and the Pak Farm workers the apple trees that needed to be pruned. He identified that the branches that needed to be cut - and which he cut during his demonstration - were vertical twigs known as "water shoots", which need pruning each summer. He pointed out the water shoots and said words to the effect: "These smaller vertical branches are called water shoots, they're the type you need to cut. Make the cut about 1 metre below the top of the tree, and close to the trunk of the tree - as I'm doing here."
It is Mr Roweth’s evidence that pruning water shoots can mostly be done by workers standing on the ground (that is, without ladders) as he did during his demonstration. He says that ladders are sometimes needed to reach some of the shoots. Each tree takes about 2 minutes to prune. There are 4 photographs taken by Mr Roweth in 2019 that demonstrate (as he did on 15 January 2016) how to prune the water shoots of apple trees from the ground. The water shoots in the photographs are about a year's worth of growth. The water shoots are only about 1 centimetre thick.
Mr Roweth did not instruct or demonstrate to Mr Musavi and his workers to cut any parts of the tree besides the water shoots, nor did he instruct or demonstrate to them to stand on or near the top of a ladder. His evidence is that there was no need for Pak Farm employees to do that, because of the height of the tree trunk and the location of the water shoots that needed to be cut.
Mr Musavi spoke to Mr Roweth in English, but during his demonstration, Mr Musavi spoke to the Pak Farm workers in a different language. Mr Roweth assumed he was translating for them. So far as he could tell, the workers did not speak fluent English.
Mr Roweth showed Mr Musavi and the Pak Farm workers where to find the orchard ladders. These were on a trailer that had been brought down to the first block they were to commence work. After his demonstration, he left Mr Musavi and the Pak Farm workers to begin work.
Supervision
Mr Roweth does not know if Pak Farm gave its workers any training or instructions for pruning trees (other than the demonstration and instructions he gave), or for using ladders.
He did not supervise or instruct the Pak Farm workers when they were pruning. He did not think he needed to supervise them, as they were not his employees and he knew that Mr Musavi and his workers had previously done a competent job pruning the cherry trees. He checked on the progress of the apple pruning work every 1-2 days or so by counting the trees that had been pruned and checking they had been properly pruned. He did not check or supervise how the Pak Farm workers did the work, but only checked their progress (the number of trees correctly pruned), because the basis of payment was per tree. Most mornings, he saw Mr Musavi on-site supervising the Pak Farm workers. He did not see Mr Musavi prune the apple trees himself.
Nor did Mr Roweth have any sign-in sheet so did not know the names of the Pak Farm workers who were pruning each day. He usually saw about 4 or 5 Pak Farm workers on site.
The alleged accident
Sometime later in 2016, Mr Roweth was made aware that there was an allegation that at 7:15 am, 20 January 2016, the plaintiff, was at the site, standing on the top and/or second top rung of an orchard ladder, using loppers to reach for and prune high branches of an apple tree, when he fell about 2.5 metres from the ladder to the ground.
He did not know the plaintiff, as the plaintiff was employed by Pak Farm, not Eden Park. The alleged accident was not reported to Mr Roweth at the time of its occurrence.
Invoice and work records
Mr Roweth received an invoice from Pak Farm for their pruning work done between 15 January 2016 and 22 January 2016, together with a record of the number of trees pruned and the employees who did the work.
On 15 January 2016, Pak Farm workers started on Oregon Spurs block 2 and were still working on the block where the accident occurred on 20 January 2016. The terrain on that block is reasonably flat. Mr Musavi and the Pak Farm workers were the only ones working in that area and were the only ones pruning apple trees at the site at that time.
The plaintiff’s allegations
Mr Roweth is aware of allegations that Eden Park Fruits failed to provide adequate equipment including height adjustable elevated work platforms for use whilst pruning the trees.
His evidence is that the maximum height of the very top branches of the apple trees at the time of the alleged accident was about 2.5 metres (see photo reproduced in Mr Williams liability report). However, the height where the branches were to be cut as he had demonstrated was no more than about 2.5 metres.
The cutting work could mostly be done from ground level using the loppers. Mr Roweth is 168 centimetres tall, and if he reached above head height using 75-centimetre loppers then he can cut water shoots that are about 2.5 metres above the ground.
However, a ladder is sometimes needed to access and prune some of the water shoots. Mr Roweth can (and could in January 2016) prune even the tallest apple trees at the site without stepping on the top or second top rung of a 1.8 or 2.1 metre ladder. I have reproduced a photo that shows Mr Roweth standing next to the ladders: (CB 131).
I have also reproduced a photo of a ladder that shows Mr Roweth standing on the 3rd from bottom rung of the ladder (CB 139). He says that his head was then at about the same height as the tallest main branches of the tree. On that rung of the ladder, he says that his feet are about 77cm centimetres off the ground.
As stated earlier, Mr Roweth’s evidence is that there was no need or reason for a Pak Farm worker to stand on the top and/or second top rung of a ladder while pruning apple trees. The water shoots are only 1cm in diameter and are not difficult to cut.
At no time did Mr Musavi or any Pak Farm worker advise him that they could not reach branches or that they required additional equipment to do the pruning.
The plaintiff’s versions of the accident
On 18 January 2016, the plaintiff started work at the site. He was introduced to a man who showed him what he had to do at the property. He does not remember the man's name, but remembers that he was from Malaysia (“the worker”). There are no eyewitnesses to the plaintiff’s fall. Another worker saw the plaintiff when he was on the ground shortly after the fall. I accept the plaintiff’s evidence that he fell off a ladder to the ground. However, the plaintiff’s version of how the accident occurred is highly contested. The plaintiff gave inconsistent evidence. He was not a credible witness. I have set out my findings in more detail on this topic later in this judgment.
Referring back to the plaintiff’s narrative, the worker showed the plaintiff how to prune the apple trees with a tree lopping tool. He did that by showing him how he pruned the watershoots on a tree. Shortly I will refer to the plaintiff’s various versions of how the accident occurred. It is the plaintiff’s evidence that he was told that if there were parts of the tree that he could not reach, he should use a ladder. He says he was also told that he should use the ladder to reach the top part of the tree when pruning it. According to the plaintiff, the worker had a ladder with him, but he did not show him how to use it safely or talk to him about safety or any dangers.
The worker just showed the plaintiff how to put the ladder up so he could reach the tree branches and the lane between trees that he had to go down when pruning them. It is the plaintiff’s evidence that he did not receive any safety training or general training about how to work safely on the property. The only thing he was spoken to about was what cuts to make to prune the tree properly. The only tools the plaintiff was shown was the ladder and tree lopping tool. The plaintiff remembers that the tree-lopping tool felt quite heavy.
He was shown a storeroom on the farm by the worker that had ladders stored there. The worker said to the plaintiff that he should get a ladder from the storeroom when he started work. The plaintiff saw that most of the workers had their own tree-lopping tools. He was provided with a tree lopping tool by his employer, Pak Farm. It is common ground that the tree loppers were provided to the plaintiff by Pak Farm and the ladder was provided by Eden Fruits.
To the plaintiff, the property appeared to be very big, and there were a lot of different people moving around it. As far as the plaintiff could see, the property only contained apple trees. The plaintiff would sometimes see Mr Musavi walking around the trees looking at the work that was being done. He also saw the worker walking around and doing the same thing.
On the morning of 18 January 2016, the plaintiff commenced work. He also worked on 19 January 2016. The first two days of his work were without incident. The accident occurred on the third day, namely 20 January 2016. 7:15am 20 January 2016. He had pruned 441 trees. That was slightly more than the quota expected each day. On each of the previous two days, he says that he used the ladder.
The plaintiff did not meet or speak to the people who owned the property and ran the farm on it. During his time at the property, he saw about 3 or 4 people who he thought were the owners or bosses walking or driving around near the fruit trees. They appeared to be of Australian background, whereas most of the people who worked for Pak Farm were from lots of different countries. The people who he thought were the owners of the farm came with the Pak farm supervisors, to where they were all working. They looked at the apple trees that were being trimmed and watched the work being carried out.
In his witness statement, the plaintiff deposes to the following: Between 6.30 am and 7.00 am, on 20 January 2016, he started work at the property. This is not in dispute. At about 7.15 am, the plaintiff says that he was pruning a tree that was the last in the last line of trees on the property. There were two other Pak Farm workers working near him at the time of the accident. They were each pruning different trees. He does not remember their names, but he remembers one of them was from Thailand. Neither of them witnessed the accident.
The plaintiff says he was not able to reach the top-level branches of the tree he was pruning. He put a ladder up so that he could reach them. He had used the ladder on other trees before he got to the tree where he had his accident without any problems. He correctly describes the ladder as having three legs (the tripod) that touched the ground. The rungs on the ladder were round, like a pipe, and did not have any grips on them.
The plaintiff says that he ascended the ladder with a tree lopping tool and started pruning the water shoots on the tree. He was cutting the top-level branches horizontally. He could not easily reach the area he had to cut, that was close to the trunk of the tree. The plaintiff says he was standing at the top and second top rung of the ladder and leaning towards the trunk of the tree so that he could prune a branch. He was about 2.5 metres from the ground at the time.
The plaintiff says that he fell to the right side of the ladder and towards the ground. He provided a similar version of events on admission to Orange Base Hospital. The clinical notes from Orange Base Hospital, from his admission on 20 January 2016 to his discharge on 23 January 2016 state that the plaintiff presented following a fall from a ladder. He sustained a right elbow dislocation. This dislocation was relocated in the Emergency Department. He sustained axillary, median and ulnar neupraxias after the supraclavicul block and this improved throughout admission (CB 663).
One of the workers who was near him told Mr Musavi that the plaintiff had an accident. Mr Musavi came over to where he had fallen. No statement was provided from the worker or Mr Musavi. While it would have been helpful, I do not make any adverse finding as to the absence of a statement by Mr Musavi and Pak Farm (in liq). The plaintiff did not receive any first aid on-site. Someone came in a car and drove the plaintiff to the Orange Base Hospital.
The plaintiff says that there was nothing to stop him from hitting the ground if he fell from the ladder. He hit the ground very hard. He does not remember exactly how he landed, but he remembered that he landed on his right side. He immediately felt a terrible pain in his right arm and right shoulder. He was screaming from the pain where he fell.
In cross-examination, the plaintiff gave three conflicting versions as to how he came to fall from the ladder. In summary, they are first, he fell from the top and second top steps of the ladder; secondly, he fell when he had one foot on the bottom step and another on a branch; and finally he fell with one foot on the top step and the other foot on a branch. The plaintiff’s differing versions of how he came to fall from the ladder make it very difficult to establish, on the balance of probabilities, the circumstances by which the plaintiff came to fall from the ladder.
The plaintiff during cross-examination reiterated the version contained in his statement namely that just before the fall, he was “standing at the top and second top rung of the ladder and leaned towards the trunk of the tree so that [he] could prune a branch.” The plaintiff’s other versions of events given in cross-examination are as follows:
“Q. Right, so, for most of the trees, you didn’t use a ladder.
A. INTERPRETER: Yes.
Q. So most of the trees were at a height that you were quite able to prune the entire tree from the ground using the set of pruning shears?
A. INTERPRETER: Can I answer for - explain?
Q. I thought you did answer, but if you want to keep going.
A. INTERPRETER: So it was just the difference between the trees, that sometimes I had to stand on either one or two steps of the ladder to just prune the trees, or sometimes I had to stand on three or four step[s] of the ladder.”
Then, the plaintiff gave a differing account. Rather than having both feet on the ladder, he said he had one foot on a branch:
INTERPRETER: […] So one of my - I've put one of my foot on the - one of the step[s] of the ladder and the other leg was on the - one of the branch[es] of the tree. […]
Q. [L]et's go back to where you were. So you…put one foot on the step rung of the ladder, and the other foot on the tree. Is that what you did? On the branch.
A. INTERPRETER: Yes.
Q. Then you fell.
A. INTERPRETER: Then after that, I did not understand what happened.
Here, the plaintiff’s evidence is that he had one foot on a rung and one foot on a branch. He was later asked to confirm the sequence of events:
Q. […] You've said because of the height [of the tree] you had to use the ladder.
A. INTERPRETER: Yes.
Q. So you went and got the ladder.
A. INTERPRETER: Yeah.
Q. You set the ladder up.
A. INTERPRETER: Yeah.
Q. You got the pruning tool. You put your first foot, you put your foot on the first rung of the ladder.
A. INTERPRETER: Yes.
Q. You then needed to get into the trunk of the tree where the shoot was.
A. INTERPRETER: Yes.
Q. So your next foot, you put on a branch of the tree and you leaned into the trunk of the tree.
A. INTERPRETER: Yes.
Q. Is that what happened?
A. INTERPRETER: Yes.
Q. Are you sure about that?
A. INTERPRETER: Yes. […]
Q. And you understood the sequence that I was putting to you?
“A. INTERPRETER: One thing, should I say?
Q. Yes, by all means.
A. INTERPRETER: So, one thing which I have not mentioned, or I want to mention, that I have started from the bottom, working, and then I went on the top.
Q. That’s how you did your work, was it? You’d start at the bottom and work your way to the top?
HER HONOUR: I’m sorry, I didn’t mean to interrupt. Did you do the pruning, on that particular tree, as much as you could from the ground before you got on the ladder? Is that what you’re saying?
A. INTERPRETER: Yes.”
In re-examination, the plaintiff gave a third version of the fall – that he had one foot at the top of the ladder, and one foot on a branch:
“Q. What part of your body was [about 2.5 metres above the ground]?
A. INTERPRETER: So, so I was on the top step of the ladder and one of my foot was on the top step of the ladder and then the other one was on the branch of the tree.
Q. It was your feet, was it?
A. INTERPRETER: Yes.”
The mechanism of the plaintiff’s injury
The first defendant’s submissions
Exactly how and why the plaintiff fell is unclear. It is the plaintiff’s evidence that he does not remember how he fell from the ladder. Nor does he remember exactly what happened next. He believes the ladder either went from underneath him or his foot slipped from the ladder. There are many possible causes for such a fall. However, the onus on the plaintiff in terms of proving his case against Eden Park is clear. In Rallis v Pang [2003] NSWCA 202 – a case involving a trip and fall on a footpath – Tobias JA stated, at [26]:
“[26] In order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall.”
In Shoalhaven City Council v Pender [2013] NSWCA 210 (‘Pender’), a case involving a slip and fall on a ferry ramp, McColl JA stated at [47]:
“[47] In order for the respondent to succeed against the appellant, he had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one which was established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability.”
The first defendant submitted that this is not purely a late invention by the plaintiff, because it is the version given to his liability expert in July 2017. However, that is evidence of instructions, not truth; and at the hearing, this version only emerged during re-examination, after the plaintiff had given two earlier accounts of the fall. This third version still offers no coherent explanation as to why the plaintiff would be up the top of the ladder in the first place.
Those three conflicting accounts relate to the plaintiff’s location at the time of the fall. There is then a further question – which none of them answers – as to how the fall then occurred. For example, it may have occurred because the plaintiff overbalanced (by overreaching, by the branch giving way, or by the loppers becoming caught); it may have occurred by slipping (because his shoes or a rung were slippery – which could happen in various ways); or it may have occurred because the ladder gave way (due to improper positioning, rocking it unnecessarily, or some defect in the ladder). The plaintiff has not established the manner and cause of his fall with any precision. In practical terms, then, the only way he can succeed is by showing that liability necessarily arises on all three versions of events. That is a heavy burden. The defendant submitted that those difficulties are compounded by the plaintiff’s dishonesty.
The second defendant submitted that on this evidence, the sequence is clear. The plaintiff began this tree by pruning the lower parts of it from the ground. To reach some higher branches, he then stepped onto the first rung of the ladder and put his other foot on a tree branch – evidently one of the lower branches that are visible in photos. He then leaned towards the trunk of the tree and fell. This sequence is supported by the height of the trees; by the fact that the plaintiff had no need to climb to the top of the ladder (and gave no evidence that he had ever done so before this tree); and by the absence of any explanation from the plaintiff as to why he would have done so for the last tree. On the other hand, it is a sequence that emerged for the first time in the witness box.
Factual findings on the accident
The plaintiff had already pruned 444 apple trees without incident. The plaintiff’s versions of the accident are inconsistent. The ground was relatively flat. The plaintiff had no reason to the top rung (or place his feet or one foot on the second top rung on the ladder). The plaintiff is 173cm tall, the trunk and main branches of the apple trees were kept to a height of about 2.5 metres – measured by a liability expert at 2.1 to 2.6 metres – and the plaintiff only had to reach up that high to make cuts near the trunk. Standing on the ground, his overhead reach with the loppers was likely 2.93 metres. This means that most of the trees could be pruned entirely from the ground. My view accords with the expert evidence. If he stood on the top or second rung, but his height would have been higher than the water shoots.
I accept that the plaintiff bears the onus of proving how he came to fall from the ladder with a degree of precision. However, he is unclear as to how he came to fall from the ladder. He has not done so.
Expert evidence on liability
Kim Patrick and Mr Steve Williams, Workplace Health and Safety Consultants, provided a joint liability expert report dated 10 July 2022 and gave evidence in conclave.
Both Mr Patrick and Mr Williams agreed that the information regarding the directive to climb a tripod ladder is sourced from the plaintiff himself who stated that it was a situation where Eden Park made the ladders available but that the directive for the plaintiff to climb the ladders should have come from Pak Farm. These assumed facts are correct.
The use of the ladder
Of the two experts, only Mr Williams inspected the property and the site where the plaintiff fell from the ladder. Mr Williams’ expertise is in the fruit orchard industry. He measured the trees and provided evidence in his report and cross-examination that the trees measured between 2.1 to 2.6 metres in height.
Mr Williams stated that there is a risk of falling from any ladder. However, as most of the trees are 2.5m high and the plaintiff was 173cm tall, with his reach which was extended by 750 mm of the loppers, it was unlikely he would have a need to climb a ladder at all. Further, if he did, it would have only been to the first or second rung. Mr Williams considered that this is an acceptable risk, and the likelihood of injury is minimal, particularly if the plaintiff is on soft ground.
Mr Patrick noted that the plaintiff stated that the tree branches were up to 3m high and that he had to prune up to levels of 2.5m to 3m. The witness statement of Scott Roweth stated at [48] that “the maximum height of the very top branches of the apple trees was about 3.5 metres”. Mr Williams agreed but reiterated that the trunk was only 2.5 metres high, and the water shoots were to be cut off at the base of the shoot, where it intersected the trunk, that is to say, at 2.5 metres from the ground.
Mr Williams disagreed that use of the ladder was required at all because the pruning being performed by the plaintiff was cutting off the lateral shoots of the tree, that is growth at a height of 2.5m. Mr Williams concluded that the majority of this work can be done from the ground. I accept and prefer Mr Williams’ evidence because he is an expert in fruit orchards, he attended the site (albeit out of apple pruning season) and his evidence accords with that of Mr Roweth.
Resolution
Even if I were to accept, which I do not, that the branches were 3m high, the cutting point is no higher than the main trunk. This is an observation drawn from Mr Roweth’s and Mr Williams’ visit to the farm where he observed that the majority of branches were 2.4m or 2.5m tall. From that observation, even if the lateral shoots were 3m high, Mr Williams opined that there is no need to access the top to lop them.
Mr Roweth is 168 cm tall. His evidence is that if he was to place his feet on the third rung of the ladder (77cm from the ground) he would be 2.5 metres off the ground. The plaintiff is 173 cm tall, that is 5cm taller than Mr Roweth. The plaintiff would have been able to cut most of the watershoots off each tree from standing on the ground using the tree loppers. At the highest water shoots on the highest apple trees, but standing no higher than the on the ladder.
In cross-examination, both experts agreed that when the measurements of the trees and the plaintiff’s anthropometric measurements are considered, there was logically no reason to go above the first or second step of the ladder (T253.25-39) and certainly no reason to go to the top of the ladder (T250.13-34). I should also add, there was no plausible reason why the plaintiff would put his foot on the 6th rung of the ladder and the other on the tree branch. As I said earlier, at best, it was foolhardy.
Training and induction
Mr Williams noted that, taking into account the issue regarding communication and training, prior to the commencement of the work, Eden Park got all the workers together and provided them with an explanation of what was required, through a translator [Mr Musavi]. However, the plaintiff commenced work after the explanation was given. Some training was provided to the plaintiff as to the provision of a ladder, the procedure for the water shoots with the tree lopper by a Pak Farm worker before he started work.
As to information, instruction and training, Mr Williams opined that Eden Park fulfilled that duty to the best of its ability. The effectiveness was reduced significantly by Pak Farm introducing a worker who did not do that induction, if one accepts the plaintiff’s statement in which he stated that he was not shown how to use the ladder and was not provided with training about how to work safely.
As to this issue, Mr Patrick opined that there was no written documented safe work procedure or induction. The manager of Pak Farm did not give evidence, it is not known of Pak Farm whether the defendants went through the safety requirements about using the ladder and the shears.
As to the hazard identification assessment, Mr Williams stated that it is common for people to be working a very short distance off the floor where there is very limited risk in that work method. He opined that Eden Park did their reasonable best to provide the necessary information, instruction and training and that was negated by Pak Farm's actions in bringing a worker into the workplace several days later who had not received that information, instruction and training.
Mr Patrick’s view is that there is an identified risk in workers using the shears on the ladder which is a system where three points of contact with the ladder cannot be maintained by the user. Therefore, Mr Patrick concluded, that if one is climbing up the ladder and a person is required to hand prune, there is a risk of falling.
As to supervision, Mr Williams opined that Pak Farm was predominantly obliged to supervise their workers, Mr Patrick agreed but added that Eden Farm had a duty to monitor the safety of workers. Monitoring is specified in the Work Health and Safety Act 2011 (NSW) s 19(3)(g) (‘the WHS Act’).
As to the risk of falls, Mr Williams maintained that because workers were only required to perform work that necessitated standing on the first or second step, the risk is minimal and acceptable because the workers are at a low height.
Mr Patrick disagreed because the practice of using shears on the ladder meant that the plaintiff could not maintain three points of contact while using a ladder.
Mr Williams considered that the risk of falling is restricted by the height of the trees, in accordance with the ASS 1000. He also considered that this is a commonly accepted practice in the Australian orchard industry, that is, the practice of stepping up on the first or second rung without maintaining three points of contact, although bracing with the knees could be considered a third point of contact.
Alternative practices available
As to whether there were any reasonably practicable alternatives to the work, and risk control, systems, methods or practices that could have been adopted to avoid foreseeable risks of injury, Mr Patrick stated in the report that, presuming the plaintiff was required to be at height, the pruning loppers should be replaced with telescopic shears or pole rope/wire (pulley) operated shears. Secondly if one continues to use the same type of lopping tool as was used by the plaintiff, the workers could be made only prune to the level that they can be reached from the ground. Mr Patrick then considered that, if the ladders remain in use, then pruning that requires single handed operation should be used to maintain three-point contact. Mr Patrick continued that if two-handed pruning shears are to be used, then the use of flat platform ladders with non-slip steps could be employed.
Mr Williams believed that the majority of the pruning could be conducted from the ground, although ladders may be required to reach the upper limbs. He said it is also possible to simply grab hold of the lateral shoot and twist and pull them off, although this would not be the most efficient method.
In cross-examination, both the experts agreed that there were pruning platforms available for use at the farm. However, having agreed that the highest tree was around 2.6m, the experts agreed that it is not reasonably practicable to use the Hydralada platform to raise a person 200-250mm in the air when this could be reached by using the first step of a ladder. Mr Williams further stated that if they were utilised, harnesses would need to be used and a rescue plan would need to be developed as if someone falls out there might be suspension trauma. As such a second machine might be needed to release them. This provides further impracticalities (T231-232). I have already made a finding that the Hydralada is primarily used for cherry picking. It is large the property is large and not suitable for trimming water shoots on apple trees.
Mr Williams explained that the loppers are a mechanical tool that utilises long handles to multiply manual effort to shear the subject matter between the jaws. In this matter, the tree lateral shoots were not very hard, so they would shear through these shoots with ease.
Both experts “…talked about electric shears, using in one hand. They agreed that electric shears weren't readily available back in 2016 (T592.5-10)”. The lack of availability of electric shears meant that the use of manual shears was standard practice at the time of the accident. I accept that electric shears were not readily available back in 2016.
Responsibility
During cross-examination, both experts agreed that it would be unsafe to stand on the top rung of a tripod ladder with one foot on the branch of the tree (T242.3-13). Mr Williams went further to state that this was an obvious risk, but this is an issue for the Court to decide. Mr Patrick agreed that there is some level of personal responsibility for the things we do in life but maintained that on a behavioural level, the risk would not be obvious for all people (T244.20-50).
In relation to the use of step ladders, Mr Williams stated that a platform step ladder would require four legs and therefore workers could not get closer to the trunk of the trees for pruning the watershoots. Their use may therefore result in the worker leaning more towards the tree. However, Mr Patrick pointed out that this would not be easy either with a tripod ladder because of the slope of the land. However, Mr Patrick had not physically inspected the land. According to Mr Patrick, the ladder would be unstable if placed sideways as the plaintiff in his interview stated that the “land near the trunk of the trees sloped slightly downwards”. Mr Williams stated that he did not recall any significant slope when he visited the site. The plaintiff is an unreliable historian. I accept and prefer the evidence of Mr Williams and Mr Rowelh that the land where the accident occurred was relatively flat. Mr Patrick stated that the ‘A’ frame shape of the tripod ladder when facing the tree meant that the higher you went up the ladder the closer you got to the tree trunk. Mr Williams believed that flat rungs may be more hazardous in wet conditions than the open rungs of the ladders provided when mud could build up on the soles of footwear and create a slip hazard. It is my view that flat rungs would be more hazardous in wet conditions in line with the reason explained by Mr Williams.
Warning stickers
In relation to warning stickers, Mr Williams stated that AS1892, provides on page 21, section 8, clause 8.2. a section that applies to special ladders. At clause 8(c), the requirement that it must comply with states that a single back leg may be fitted. Mr Williams observed that there is no mention of warning stickers in this provision (clause 8(c)). Therefore, Mr Williams concluded that a warning sticker is not a requirement for the particular kind of ladder being used for the tripod ladder. Mr Williams also highlighted that the plaintiff could not read or write in his native Urdu and Hazaragi, so it is unlikely that he could read a warning sticker in English, negating the value of such a sticker, although, in my view, a pictorial warning may overcome this problem.
As to whether tripod ladders were commonly used within the Australian orchard industry for pruning and/or picking fruit and suitable for this use, Mr Williams stated that he observes these ladders being used frequently in the fruit picking industry, they are the most commonly used type of ladder and he considered them suitable for use in this context. This observation accords with Mr Roweth’s evidence that these ladders were frequently used in the area where his property is located.
Mr Patrick agreed with Mr Williams’ opinions but added there are variations of tripod ladders: some are aluminium, while some have painted rungs as a safety warning to highlight not to climb above that level. He says that they are commonly used. The South Australia Government SafeWork SA website on Bow Ladders shows a picture a bow ladder with red marking/paint.
Top of the ladder or last rung?
As to whether a person should avoid using the top step or second top rung of a tripod ladder, Mr Patrick considered that the answer is generally, yes, on the proviso one accepts that proper and adequate information, training and instruction practice is provided. However, as stated earlier, in this particular case, he says that the answer is no, because the plaintiff says that he did not receive any training, information or induction from his employer or the host employer.
Mr Williams stated that he agreed that a person should avoid standing at the top or second top rung, and noted that the plaintiff recounted to Mr Patrick that he stepped one foot onto the tree branch while the other remained on the ladder, and opined that this should certainly be avoided as a foolhardy practice, especially given the limited circumference and flexible nature of the branches of these trees.
Proper training and induction
Mr Patrick explained options as to why the plaintiff may have used the ladder that way. He may never have used a ladder before or he may never have used a ladder for work purposes or a bow/tripod ladder placed on sloping ground and therefore was not aware of the risks or he may have used a ladder before and accessed the top or second rung from the top rung/step without incident, so he believed there was no risk or an acceptable risk to him for ‘getting the job done’. Further, as he was on 'piece work’ where he was paid per tree pruned, the quicker he worked the more money he earned. This type of arrangement can encourage the taking of shortcuts that may increase the risk of an accident however the risk is accepted by the worker in order to complete the work quicker. This risk should have been identified and controlled including monitoring by the person conducting a business or undertaking.
Mr Patrick’s opinion is based upon there being no safety induction, information, training, and instruction, safe work procedure or safety rules, nor monitoring by safety observations. No inspections by the employer and first defendant host employer were explained or otherwise provided to and for the plaintiff. There were WHS responsibilities by the first defendant host (Eden Park) and the plaintiff’s employer, Pak Farms.
Mr Williams did not disagree with these points, but maintained that, with the tree trunk restricted to 2.5 metres and the pruning to take place where the shoots emerged from the trunk, there was no need for the plaintiff to climb above the first or second rung. Mr Williams reiterated that he believes the primary supervision role rested with Pak Farms. Eden Park did provide an induction but this process was thwarted by Pak Farm bringing the plaintiff onto site several days after the induction was conducted without the knowledge of Eden Park.
Accepted practice
As to whether the system of pruning apple trees at the premises conformed with accepted Australian orchard industry standards in 2016, Mr Williams stated, yes and he went on to opine that he considered it was standard practice in the orchard industry and probably still is. It is possible to obtain hydraulic or battery/electrical loppers and these are used more and more. Their use allows the user to maintain three points of contact on ladders and they also reduce any potential for musculoskeletal injuries, however, the water shoots being cut in this particular case are very flimsy and that risk, therefore, is not present in these circumstances.
Mr Williams also stated that he has seen this practice occur time and time again in fruit orchards around Australia. As previously stated, fruit orchards are his area of expertise. Mr Williams has extensive professional experience in risk management and has specialised in occupational health and safety. This is the common system employed to get this kind of work done. His opinion is that this includes the use of two-handed loppers. Mr Williams has not observed use of telescopic loppers in orange, apple and cherry orchards, where the heights of the trees are kept fairly restricted.
Mr Patrick also stated that he was not aware if there was a documented process system. He also opined that it did not conform to generally accepted safe practices, particularly in relation to the use of two-handed loppers while standing on a ladder. He was unaware of any research on the methods for safe pruning in the orchard industry. On that note, Mr Patrick reiterated that the standards referred to above require three points of contact be maintained by the user while using ladders.
As to using the loppers and a tripod ladder of either height (1.8 or 2.1 metres), having safely performed the pruning of branches Mr Williams’ opinion is that this is the common industry practice and he is not aware of a significant number of injuries from falls using this practice. That is, this particular work could have been safely performed.
Both experts acknowledged that the plaintiff performed work on a “piece work” basis which had the effect that he would be paid less if he performed the work slowly because this would result in him pruning fewer trees. The experts also acknowledged that taking certain additional safety steps may have the effect that the plaintiff does indeed perform the work slower. This factor may impact upon other factors, for instance, a higher level of supervision and/or monitoring may be appropriate in circumstances where the incentives to perform work faster results in the risk the workers may "cut corners". However, this aspect lies outside the scope of the assumptions and questions posed to the experts in this particular conclave and therefore the experts provide no further comment.
Liability provisions of the Civil Liability Act
I shall first deal with the defence of obvious risk relied upon by the employer, followed by ss 5B, 5C and 5D of the Civil Liability Act (‘CLA’).
The occupational therapists recommend the following: Mr Byrnes stated that depending on progress, an initial 6 sessions of occupational therapy is deemed reasonably necessary. A review by a trained driver assessor is also reasonably necessary. Further occupational therapy may be required, depending on the response to the initial course. Mr Byrnes also referred to his report dated 20 July 2022 at page 30.
Mr Byrnes noted that Mr Babayi would likely benefit from the provision of the following therapeutic interventions (Note; this is based upon consideration of his current symptoms, the likely progression of his condition and need for future surgery or other invasive treatment):
(a)Input from an occupational therapist regarding pacing, task modification and energy conservation techniques. Mr Byrnes recommended six sessions, at $192.50 or a one-off payment of $1,155.
(b)A driving assessment to determine if aids/ equipment (e.g. mirrors, reversing sensor, or steering wheel knob) would assist to increase driving tolerance. To be confirmed by certified OT Driver Assessor with one-off costs of $1,400 and $500.
(c)Physiotherapy input to develop an exercise program, including hydrotherapy program to keep him as active as possible. This would involve 6 sessions per year at a cost of $149.70 per session or $898.20 per year.
(d)Regular massage therapy to manage him symptoms. This would involve 12 sessions per year at $90 a session or $1,080 per year.
(e)Participation in a hydrotherapy program to improve general fitness level. This program offers unlimited access at a cost of $350.
(f)Support from a psychologist regarding depressed mood and chronic pain. Ongoing need for treatment to be confirmed by treating GP/psychiatrist in consultation with psychologist. This would involve 12 sessions per year at $238 a session or $2,856 per year.
(g)A Pain Management Program. This formal program to assist to manage chronic pain would be at a cost of $12,000; and
(h)assistance from an interpreter to utilise the recommended interventions at a cost of $140 an hour or $840 per year.
Ms Dinley recommended 8 hours of occupational therapy interventions as a one off cost. The NDIS hourly rate for occupational therapists would apply (about $194/hr), This would include retraining, time management chronic pain management service access, maybe some physiotherapy and re-engagement.
Ms Dinley stated services of a driving occupational therapist would be required if the tremor is genuine (of which Ms Dinley is doubtful). This will involve cancelling the plaintiff’s licence, the plaintiff would need to obtain a learners’ permit again, the plaintiff would then undergo 2 sessions with an occupational therapist and lessons with a driving instructor. The plaintiff would also need to obtain spinner knob and be trained to use his left hand on the spinner knob. The cost of this is estimated to be $2,700.
Attendant care services
Section 15 of the Civil Liability Act governs domestic assistance. It reads
“15 Damages for gratuitous attendant care services: general
(1) In this section--
"attendant care services" means any of the following--
(a) services of a domestic nature,
(b) services relating to nursing,
(c) services that aim to alleviate the consequences of an injury.
"gratuitous attendant care services" means attendant care services--
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.
(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that--
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.
(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided)--
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.”
…
Past domestic care and assistance
As to the past domestic care and assistance, the plaintiff has calculated damages of $108,709.40, relying upon the report of Christian Byrnes an occupational therapist.
Future domestic care and assistance
Plaintiff’s submissions
As to future domestic care and assistance, the plaintiff has calculated damages at $406,745.52 also relying on the report of Christian Byrnes.
(1)Median life expectancy = 33.22 years;
(2)Rate per week per report of Mr Christian Byrnes dated 20 July 2022 (at page 28-29) = $475.17
(3)$475.17 per week from 02/08/2022 to approximate median life expectancy date (33 years) $475.17 x 856 (5% multiplier at 33 years).
Domestic aids and appliances are calculated by the plaintiff at $2,471.86. This number is derived from the report of Mr Christian Byrnes dated 20 July 2022 (pages 29-30) as $150.16 per (costs per annum / 52 weeks x 856 (5% multiplier at 33 years)).
The plaintiff submitted that he has a severe tremor, aggravated by stress. This is concerning and distressing for him. That it may be psychogenic is not to the point. It is entrenched and has been for the last 6 years and the experts all agree that he requires extensive clinical management restore function. This necessarily affects his capacity to engage in heavier household cleaning tasks and yard and other maintenance.
He was assessed on 18 May 2019 by Mr Byrnes, in terms of his activities of daily living, was report at 2 CB 499) pain makes bending down to wash his car, tend to his vegetable garden, complete home repairs or reaching to take the washing out of the machine or hang it difficult. Pain limits his willingness to engage in any form of exercise or walking, e.g., to complete shopping which contributes to his reported weight gain. Pain reduces his capacity to lift and carry resulting in a greater resilience on his wife and children to help with the shopping, carry washing out to the line and results in an inability to work.
The plaintiff submitted that the combination of pain, fear of aggravation, poor psychological heath and fatigue as constraining his ability to perform tasks for meal preparation, housework, spring cleaning, laundry, gardening, home maintenance, household management, etc.
The plaintiff agreed it was not true to say he could not use his right arm to dress himself (T 85.36).
Dr Dinnen observed that, assuming the plaintiff’s history and presentation was genuine, 6.5 years of treatment has not made him better. He recommended that the plaintiff receive supportive management from a GP, as well as 6 sessions per year of supportive counselling with prescription of medication for pain and depression. Dr Dinnen stated that review by a pain specialist once each year would also be appropriate. Dr Dinnen stated that this regime of treatment is intended to be maintenance treatment at a low level and is appropriate in the context of the chronicity of the plaintiff’s condition. The estimated cost of this regime is $2,000 per year.
Dr Wilcox stated that, if the plaintiff is genuine, then has already had a lot of input and treatment to manage his symptoms without resolution or improvement, and therefore there would be no utility in implementing an intensive treatment regime (for example, participation in a pain management program). Assuming the plaintiff is genuine, Dr Wicox agreed that the treatment regime recommended by Dr Dinnen is reasonable and emphasised that treatment should focus on support and monitoring with a GP providing regular prescriptions and medication.
However, if it is found that the plaintiff is exaggerating his symptoms and that his representation of his injuries and disabilities is not accurate, then Dr WiIcox considered that no treatment would be required. Dr Machart was of similar opinion that the plaintiff had already been overtreated by practitioners. Dr Dalton’s opinion was the plaintiff had a mild stiffness of the right elbow, but did not require any further medical treatment.
The first defendant’s submissions – Past and future care
Eden Park submitted that no amount should be awarded for past or future domestic assistance, because the plaintiff does not meet the intensity and duration thresholds in s 15 of the Civil Liability Act and does not require commercial assistance.”
Given the plaintiff’s likely ability to return to usual activities of daily living within 3-4 months of the accident, his uncorroborated evidence that his wife and children now help him “a lot with cooking, cleaning and other household chores” and shopping, and that his wife helps him “get dressed every day”, should be rejected. He has not proved – as s 15 of the CLA requires – that the alleged domestic assistance was provided, and that the need for it arose solely from the accident. Similarly, whatever assistance Mr Qamberi has provided – such as taking the plaintiff to doctors’ appointments, or assistance with home maintenance – was not reasonably necessary, because the plaintiff can drive, and he has no demonstrated incapacity that would reasonably require assistance with home maintenance.
Further, the plaintiff’s evidence does not begin to quantify the level of gratuitous assistance actually received after the accident. The occupational therapists have assessed that certain levels of care would (if provided) have been reasonable; but that does not prove such care was provided – and their assessments still depend upon acceptance of the plaintiff’s histories and claimed disabilities, which are inconsistent with his activities in the surveillance footage.
None of the plaintiff’s family, and most notably his wife, gave evidence of any assistance they may have provided to the plaintiff in the past as a result of any accident-related disability. His eldest daughter gave evidence of assisting with emails as a result of language difficulties.
The practical effect is that the plaintiff’s claims for past and future gratuitous domestic assistance simply fall away. No amounts should be awarded, because he does not meet the intensity and duration thresholds in s 15 of the CLA.
Nor does the plaintiff require future commercial assistance. That was the unchallenged view of Dr Dalton in the joint report and during evidence, which should be accepted.
Alternatively, if commercial assistance with heavy manual handling and some home maintenance is required in the future – Ms Dinley originally allocated 1.5 hours for this, but considered this should be reduced given the findings of the joint orthopaedic and rehabilitation conclave – then the plaintiff requires no more than 1 hour of commercial assistance a week, at $55 per hour. The appropriate figure is then $55 per week x 845 (5% multiplier for remaining 32 years’ life expectancy) x 0.85 (discount for vicissitudes: Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171, 201 [153]) = $39,503.75, which would round to $40,000.
In summary, the first defendant submitted that no amount should be awarded for past or future domestic assistance, because the plaintiff does not meet the intensity and duration thresholds in s 15 of the Civil Liability Act and does not require commercial assistance.
Occupational Therapists’ evidence
Ms Susan Dinley and Mr Christian Byrnes, both occupational therapists, provided a joint expert report dated 9 August 2022. They gave conclave evidence. The joint report has been summarised below.
Mr Byrnes made the assumption based on what the plaintiff reported to treating medical specialists, and formed the opinion, that the plaintiff was injured in a work-related accident on 20 January 2016. The initial injury was dislocation and fracture of the right elbow. He developed chronic pain and significant loss of functional use of his right of the limb. The plaintiff has experienced ongoing poor psychological health as a result of his chronic pain and chronic disability. This assumption, and opinion, was formed on the basis of assessment findings (on two occasions in 2019 and 2022), and of review all available medical and related reports and consideration of reviews surveillance videos. This assumption, and opinion, has been supported by the most recent opinions.
However, in cross-examination, Mr Byrnes conceded that if the accepted medical opinion was that there was no need for future care, then without some extraneous hypothetical circumstance he would agree with the expert medical evidence (T369.10-35). Mr Byrnes also acknowledged that the video surveillance footage was at times inconsistent with the way in which the plaintiff presented to him during examination (T378.13-380.21). He mostly attributed this to fluctuations or “good and bad days” in the plaintiff’s symptoms.
Ms Dinley referred to her work coordinating a hand injury clinic for many years, working with surgeons, and stated that she has never seen the tremor the plaintiff demonstrated at the first assessment. Ms Dinley reported that the tremor changed direction from the first time she assessed the plaintiff, where the tremor movement was directly up and down, to one which is recorded in her 2022 assessment of the plaintiff where a tremor moved the hand from pronation to supination. Additionally, Ms Dinley stated that the surveillance tapes showed good right-hand function, including reflexes. Ms Dinley is a driver trained occupational therapist and expressed her opinion that if the plaintiff’s right dominant hand is as bad as was demonstrated then he should not be permitted to drive. However, she also noted that the plaintiff is driving, which indicated that he could successfully grip and steer.
Past care or assistance
Mr Byrnes recorded that the plaintiff has received assistance with personal care, care of others, meal preparation, spring cleaning, shopping, laundry, vehicle maintenance, garbage management, garden/lawn care, bill payment and vehicle maintenance from the date of the injury to the date of the assessment. The amount of care received varied depending on the care provided. Mr Byrnes noted that the care was principally provided by the plaintiff’s wife with the plaintiff reporting that he received additional care from a friend and also his landlord.
Mr Byrnes formed the opinion, based upon assessment findings and medical reports reviewed, that the plaintif’s condition has not improved. Ms Dinley agreed with Mr Byrnes that the plaintiff has received past care. Ms Dinley said that the plaintiff required care from the date of the accident to April 2022 (when she last assessed the plaintiff), the amount of which reduced over time.
Ms Dinley has divided the period over which the plaintiff received past care into 4 stages:
(1)From 21 January 2016 - 23 January 2016 the plaintiff did not receive any domestic assistance or attendant care as he has in hospital.
(2)From 24 January 2016-13 February 2016 (a 21 days). The plaintiff’s arm was in a cast/sling during this period. Ms Dinley stated that the plaintiff required 18 hours of domestic assistance or attendant care each week for this period of 3 weeks.
(3)From 14 February 2016 to 11 September 2019 (3.5 years, 187 weeks) the plaintiff was at home during this period. The plaintiff’s arm developed a tremor. The plaintiff slowly returned to driving. The plaintiff re-engaged in domestic tasks. The plaintiff never returned to work and never did any maintenance tasks. The plaintiff reported that the tremor was affecting his ability to participate in activities of daily living, his sleep and his ability to return to work. Ms Dinley found that the plaintiff required 9 hours per week of care with gradual reduction to 3 hours per week.
(4)From 12 September 2019-20 April 2022 Ms Dinley assessed the plaintiff on 20 April 2022 at his home and on this occasion the interpreter was running late and arrived 30 minutes after the scheduled start time. During the period while they were waiting for the interpreter to arrive, Ms Dinley observed the plaintiff going about various tasks at home while they waited and noted that the tremor was absent during this time. As soon as the interpreter arrived, the tremor started again and it was a pronation/supination tremor, which is different from when Ms Dinley assessed him in 2019. Ms Dinley assessed that the plaintiff required 1.5 hours per week for maintenance tasks and domestic tasks. After this period, ending with the date of her assessment of the plaintiff, Ms Dinley assessed the plaintiff for future care.
Ms Dinley also noted that, during her last assessment, when asking the plaintiff to perform tasks around the kitchen he could not locate simple things like the location of the tins of food, he could not locate a can opener, he did not know where the carrots were in the fridge. This reinforced to Ms Dinley that the plaintiff has never performed domestic tasks like cooking around the home.
Ms Dinley stated that she has since watched the surveillance video during which the tremor was absent. In cross-examination, she did however concede that the plaintiff did display guarding or pain avoidance behaviour by keeping his arm close to his body or in his pocket through the majority of the surveillance footage (T335.7-50).
Ms Dinley stated that the assistance was provided by the plaintiff's wife in relation to domestic tasks. Ms Dinley stated that the plaintiff reported that the insurance company did some of the gardens and lawns, although she observed that there was not much lawn or gardens because the landlord had built a structure at the back. There was reported that assistance was provided by a friend and his son who was in his late-teens.
Mr Byrnes agreed with Ms Dinley that the plaintiff would not have required any domestic assistance or attendant care while he was in hospital. The experts also agreed that the plaintiff would have required domestic assistance and/or attendant care at other times, however the nature and extent of the care is not agreed.
As to the issue of whether that domestic assistance and/or attendant care was required solely as a result of the accident, Ms Dinley stated that she has reviewed all of the reports provided. Due to the different conclusions from information provided across those reports. Ms Dinley undertook a triangulation exercise where she compared what the experts had reported and what the plaintiff described and also her observations of the plaintiff during the assessment and in the surveillance videos.
From what she observed and in comparison with the information in the reports, Ms Dinley therefore came to a view that the plaintiff would have required domestic assistance and/or attendant care as a result of the accident but that it would have reduced over time due to the plaintiff’s improving condition.
Future care
Mr Byrnes concluded that the nature of assistance required is personal care shopping, spring cleaning, laundry, lawn/gardening, household garbage management, household maintenance, vehicle cleaning and vehicle maintenance. Mr Byrnes went on to opine that, based on assessment findings, including reports mentioned above, future support will be reasonably required on an ongoing basis.
Ms Dinley stated that she has based her opinion on this issue taking into account the medical inconsistencies in the clinical presentation reported by various experts and also from her own observations during assessment and in the surveillance video. Ms Dinley stated, of particular note, that Dr Dalton noted that there were inconsistencies in the plaintiff’s movements during the examination in the manner that the plaintiff could dress and undress himself and also the inconsistent presentation of the tremor during the examination. Dr Machart, in his report dated 5 July 2022, Dr Machart, referring to Dr Dalton's report, Ms Dinley's report.
In her assessment of the plaintiff, Ms Dinley noted the absence of any wasting in the affected limb and also noted the absence of contractures. Ms Dinley stated that, in her experience in the hand clinic under Prof Cummings and from her expertise, this is an indication that the plaintiff is using the right upper limb.
Ms Dinley did not agree with those experts that concluded the plaintiff has CRPS, Dr Guirgis and Dr Milder, and considered it was more likely that (in accordance with other experts who have expressed the same opinion on this issue) the plaintiff does not have CRPS. So far as I best understand it, it is not the role of an occupational therapist to provide a medical diagnosis.
Overall, Ms Dinley accepted that the plaintiff has suffered a frank injury to the right elbow but rejected any diagnosis of CRPS. Ms Dinley concluded that the plaintiff required, into the future, 72 hours of assistance per year for lawn mowing (30 minutes) and heavy domestic tasks including maintenance tasks (1 hour/wk). This is on the basis that the plaintiff’s right arm may be affected by the vibrations in a lawn mower and also that he would have difficulty with heavy domestic tasks. The cost of the domestic assistance is $45 per week for a commercial provider, with the local cost being $22 per hour. The cost of assistance with heavy domestic and maintenance tasks is $65 per hour for a commercial provider, with the local cost being $30 per hour.
The experts observe that the regimes they have recommended differ and this is at least partly due to the differing assumptions that the experts have made regarding the plaintiff current condition, noting that Mr Byrnes accepts the diagnosis of CRPS, whereas Ms Dinley does not.
Past and future attendant services
Dr Machart stated that, for the first 3 or 4 months, the plaintiff may not have been able to do much with the right arm, noting he had a well-functioning left arm, he would have been restricted from strenuous domestic works, such as cutting the lawn or gardening. Beyond that, Dr Machart did not see any reason why the plaintiff would require external assistance. This opinion is based on his experience with these fractures. For Dr Machart to come to a different conclusion about this patient, he would have to be convinced the injury did not follow the usual pathology paths, for which there is no such evidence.
Dr Guirgis agreed with Dr Machart with the qualification that the question of the existence of any additional pathology might be a relevant issue here, being the pain disorder and its effects.
Dr Dalton considered that the plaintiff would have had some restrictions immediately following the injury and while he was recovering during his immobilisation. Once his injury had stabilised he did not, in Dr Dalton’s view, require any assistance with his pre-accident domestic tasks. He considered that the plaintiff may have difficulty with heavy manual handling and some home maintenance tasks but, on the balance of probabilities. Dr Dalton did not consider that the plaintiff requires any ongoing domestic assistance in the future.
Prof. Fitzsimons in her first report described various domestic capabilities/restrictions which the plaintiff reported. Prof. Fitzsimons also noted that the surveillance showed the plaintiff performing certain tasks such as using his right arm to pour tea, he used his right arm more freely than on examination and he was able to wash the car by himself.
Prof. Fitzsimons surmised that the orthopaedic injuries may prevent him from doing the heavier domestic tasks and that there was nothing neurologically that would prevent the plaintiff from performing the usual domestic tasks. She also stated that, if the tremor were genuine, then it would have an effect on the plaintiff’s ability to perform domestic tasks, however that tremor was completely absent in any of the surveillance footage where the plaintiff was shown to be doing certain tasks such as pouring tea.
Dr Milder opined that the plaintiff’s ability to perform domestic tasks, including those performed prior to 20 January 2016, is markedly impaired. Prof. Fitzsimons refers to her first report in which she described various domestic capabilities/restrictions which the plaintiff reported.
Prof. Fitzsimons noted in the surveillance that the plaintiff was able to pour tea, he used his right arm more freely than on examination, he was able to wash the car. Prof. Fitzsimons surmised that the orthopaedic injuries may prevent him from doing the heavier domestic tasks. However, from a neurological perspective, it is Prof. Fitzsimons’ opinion stated that there was nothing neurologically that would prevent the plaintiff from performing the usual domestic tasks. Alternatively, if the tremor were genuine, then it would have an effect on the plaintiff’s ability to perform domestic tasks, however that tremor was completely absent in any of the surveillance footage where the plaintiff was shown to be doing certain tasks such as pouring tea.
The psychiatric experts agreed that if it is accepted that the plaintiff was exaggerating or manipulating his symptoms intentionally, then one could not conclude that he was unfit to perform pre-accident domestic tasks as a result of his injuries.
On that issue, Dr Wilcox recounted that during her assessment of the plaintiff, he stated that he could not lift his right arm and when he demonstrated this, he tilted his whole body in order to demonstrate that this is how he moved his right arm. In other words, it was an extreme physical demonstration of what was represented to be an extreme restriction of movement.
However, Dr Dinnen stated that in part of the surveillance footage, the plaintiff was observed to be shopping and during that activity was observed to be holding clothes with his right hand, which, on one view, demonstrates that he is able to use that hand. However, Dr Dinnen went on to state that if you look carefully at the clothes which the plaintiff was holding, they would have weighed less than one kilo, which is not inconsistent with the plaintiff's statement where he says that he can lift one and a half kilos for reasonable periods of time.
Resolution
The plaintiff did not require care while he was in hospital between 21-33 January to 24 June 2016, if it is my view that the plaintiff required attendant care to do heavy domestic tasks, the heavier duties such as mowing the small amount of lawn and gardens and shopping. However, at best these activities would take 3 hours per week for 4 months. This does not breach the threshold set out in s 15(3) of the Civil Liability Act. There is also another difficulty, the plaintiff’s wife did not provide any evidence. She would have been the person who provided the gratuitous services of a domestic nature. While the plaintiff’s daughter assists her father with bills, writing messages on the phone and using a computer, these tasks are performed as a result of his inability to write English. It is my view that after 4 months, the plaintiff required no attendant care.
Result
I have entered a judgment and verdict for the defendant on liability.
Costs
Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants costs.
THE COURT ORDERS THAT:
(1)The plaintiff is granted an extension of time to commence proceedings as against the second defendant up to or including 19 May 2021.
JUDGMENT:
(1)Judgment and verdict for the defendants.
THE COURT FURTHER ORDERS THAT:
(1)The plaintiff is to pay the defendants’ costs.
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