Andrew Goodman v Impact Hire Australia Pty Ltd

[2009] NSWSC 868

CITATION:	Andrew Goodman v Impact Hire Australia Pty Ltd & Ors [2009] NSWSC 868
HEARING DATE(S):	1, 2, 3, 4 and 5 June 2009
JUDGMENT DATE :	28 August 2009
JUDGMENT OF:	Patten AJ
DECISION:	See paragraphs 174,180 and 181
LEGISLATION CITED:	Workers Compensation Act 1987; Civil Liability Act 2002; Motor Accidents Compensation Act 1999; Workplace Injury Management and Workers Compensation Act 1998
CATEGORY:	Principal judgment
CASES CITED:	Knight v Government Insurance Office of NSW [1995] NSWCA; Rees v Rees (1994) MVR 103; Pearce v Round Oak Steel Works Pty Ltd [1969] All ER 680; Wyong Shire Council v Shirt 29 ALR 217 Davie v New Merton Board Mills Ltd [1959] 1 All ER 346; Kondis v State Transit Authority (1984) 154 CLR 672
PARTIES:	Andrew Goodman - Plaintiff Impact Hire Australia Pty Ltd - First Defendant Inasmuch Pty Limited - Second Defendant The Nominal Defendant - Third Defendant
FILE NUMBER(S):	SC 2008/20438
COUNSEL:	Mr A Stone with Ms M Holz - Plaintiff Mr P Morris - First Defendant Mr S Torrington - Second Defendant Mr B G Smith - Third Defendant
SOLICITORS:	White Barnes - Plaintiff Moray & Agnew - First Defendant Bartier Perry - Second Defendant Sparke Helmore Lawyers - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

28 August 2009

20438 of 2008

Andrew Goodman - Plaintiff
v
Impact Hire Australia Pty Limited – First Defendant
&
Inasmuch Pty Ltd – Second Defendant
&
The Nominal Defendant – Third Defendant

JUDGMENT

1 The Plaintiff (Mr Goodman) sues his former employer (Impact) and a Second Defendant (Inasmuch) the manufacturer of a road signage trailer in respect of personal injuries allegedly suffered on 29 December 2003 when he was engaged in the course of his employment. At the time Mr Goodman was working on or adjacent to the Warringah Expressway in Sydney. The action against Impact is governed by the Workers Compensation Act and the action against Inasmuch by the Civil Liability Act.

2 Mr Goodman also joined the Nominal Defendant in the proceedings on the basis that the subject accident may have involved an uninsured motor vehicle within the Motor Accidents Compensation Act (MACA). On the third day of the hearing, it was agreed between the parties that there was no accident within MACA and I made by consent orders in accordance with short minutes of order. I excused from further attendance Mr A Renshaw, who appeared for NRMA Insurance Limited and Mr B Smith, who appeared for the Nominal Defendant.

3 In the continuing proceedings, Mr A Stone with Ms M L Holz appeared for Mr Goodman; Mr P Morris for Impact; and Mr S Torrington for Inasmuch.

4 Mr Goodman testified as to his birth on 7 September 1971 and that after leaving school he worked for K. L. Kent, a furniture removal company based at Auburn for about 2 years. At the same time, he completed his School Certificate at Mount Druitt TAFE.

5 In 1989 while still working for Kent, he was involved in a motorcycle accident in which his right femur was broken. He was unable to work for three months. On recovery, he did not return to Kent but rather became an apprentice butcher and enrolled in an appropriate trade course at North Wollongong TAFE. After about 2 years he again changed his employment and returned to furniture removals, obtaining employment with Grace Removals.

6 From this employment he gravitated to long distance truck driving in various parts of Australia.

7 By 1998, he was with his present partner, Jacqueline Pellaers and was living and working on an avocado farm at Gympie in Queensland. At one stage he was managing a fruit and vegetable store during the day and truck driving for IPEC at night.

8 After a time he and Ms Pellaers returned to Sydney where for a trucking company Boylan, he drove a truck to Tarcutta and return each night. Later he also drove trucks for Panoochies and White Heavy Haulage.

9 In 2001 while employed during the week as a truck driver, he obtained weekend work for Austereo, the Proprietor of Triple M Radio. His job was to drive a promotional vehicle around Sydney, the vehicle being in effect a caravan made up to look like a giant portable music player. At an agreed site, he would stop the vehicle, wind down stabilizing legs and commence to play music. While the music played, he would give promotional items to passers by. Sometimes young women assisted him in this promotional activity.

10 While still working at weekends for Austereo, about March 2002, he joined Impact. At that time, he said he was “as fit as a fiddle” with no back or neck disability and nothing which restricted his recreational activities. He was living with Ms Pellaers in her house at Concord.

11 In relation to the employment with Impact, he answered an advertisement which resulted in contact with a Mr Greg Denton. Even before he was interviewed by Mr Denton, at Mr Denton’s request, he drove to a manufacturer at Newcastle in his Suzuki 4 wheel drive motor vehicle and towed back to Sydney what he described as a “junior variable message board”. As requested by Mr Denton, he towed this to a site in Everley Street, Redfern which, as it happened was known to him as it was where on occasions he parked the Austereo caravan. He reported his arrival to Mr Denton but in fact did not formally meet him for about another week.

12 This meeting was in a café at Newtown and following it he was engaged as an employee of Impact. He was not provided with any training but sent back to Newcastle to take delivery of another junior board and tow it back to Sydney.

13 Thereafter he was given some training by Mr Denton as to how to remove a junior message board from the back of a vehicle; how to set it up; and how to program its message. The board, of a type commonly seen about Sydney, was attached to a trailer and displayed an electronic message usually related to traffic control. It was powered by batteries contained within the frame of the trailer.

14 Mr Goodman said that although he was given a manual of instruction as to how to program the message on the board, it said nothing about the physical aspects of setting it up, as to which he received no written instruction. Mr Denton demonstrated the way he set up a junior board to Mr Goodman at a location in Moore Park.

15 He found that Impact then owned about 25 junior boards and that its business was to hire them to users, mostly, as I understand it, the RTA. The terms of hire required Impact to tow each board to where it was to be located, set it up and program it to display the required sign or advertising material and at the end of the hiring tow the sign away. Impact had access to a secure concrete yard in Everley Street Redfern but Mr Denton’s office was located elsewhere. According to the business cards provided by Mr Denton, Mr Goodman became the NSW Representative of Impact. He reported to Mr Denton.

16 Impacts’ stock of junior boards increased when it bought out the company Traffic Control Signals and acquired 11 arrow boards, 4 traffic lights and another 2 junior message boards. Up until December 2003 his work with electronic signs had involved only junior message boards. His hours of work were irregular and often involved him working at night and at weekends. He earned a salary and was also paid bonuses from time to time.

17 Junior message boards or more precisely the trailer upon which they were mounted had no hand braking system but were fitted with a safety chain. As I understand his evidence, Mr Goodman, when setting up a board at a particular site, at least where the ground was not level, made a practice of leaving the chain attached to the vehicle which had towed it to the site until the board was fully set up and stabilised.

18 In or about December 2003, Mr Goodman learned from Mr Denton that Impact was to acquire two much larger boards from Inasmuch. They discussed the different computer programs which the new boards would have and problems associated with that. The subject of the physical handling of the larger boards was not however raised by Mr Denton, who, so far as the evidence relates, did not address his mind to it.

19 The two larger boards were transported by interstate carrier from where they were made in Western Australia to a depot in Sydney about 9 December 2003. From there they were delivered to the concrete yard at Everley Street Redfern. Mr Goodman was present at delivery, as was Mr Philip Young, principal of Inasmuch, and Mr Denton’s nephew, who worked for Impact and who Mr Goodman knew only as “Moose”. There was an issue as to whether Mr Denton was also present. Mr Goodman thought he was, Mr Young that he was not. Neither Mr Denton nor “Moose” was called to the witness box. Not a great deal turns, I think, on this conflict. On the one hand it might be expected that Mr Denton would be present when 2 large and expensive items of equipment were delivered. On the other hand, it is Mr Goodman’s signature which appears on the receipt for a substantial quantity of spare parts and Mr Goodman, as will appear, seems to have been mistaken in his evidence that Mr Denton at the time of delivery gave him a particular direction. The probability, I think, is that Mr Denton was not present.

20 According to Mr Goodman, the concrete yard was level, being bounded at the rear by a shed which contained an electricity power source and a variety of spare parts, electric cables etc.

21 The new trailers arrived on a tilt tray truck. They were unloaded one after the other and the truck was driven away. Mr Goodman and “Moose” pushed the two machines into the middle of the yard where Mr Young provided information about them. There is an issue as to exactly what information Mr Young did provide and I will need to return to that subject. However, it is clear that it included information as to the programming of the computers on the trailers so as to make them compatible with Impacts computers.

22 Each machine consisted of a two-wheel trailer to which the electronic sign board was attached by a metal mast. From the front of the trailer a metal bar protruded, at the extremity of which was a connection for attachment to a tow bar, a length of chain and an electrical cable. Underneath the bar was a small wheel referred to in the evidence as a “jockey wheel” capable of being raised and lowered, in which latter position it would partly take the weight of the machine. At each of the four corners of the trailer were metal bars with feet designed to be let to the ground when the trailer was stationary in order to stabilise it. These bars were capable of being fixed in a horizontal position above the ground when the trailer was in motion.

23 Apart from providing instruction as to computer programming, according to Mr Goodman, Mr Young provided instruction as to the raising of the boom or mast to which the electronic sign was attached and as to how to pivot it so as to display the sign to maximum advantage. Mr Goodman’s evidence was that in the Everley yard the stabilizing legs were not lowered and the trailers remained freestanding “like a tricycle”, the jockey wheel having been lowered to the ground.

24 As soon as Mr Goodman was able through his computer to communicate with the computers on the trailers and a trial safety message had been placed on the electronic board, he said that he was told by Mr Denton to proceed to delivery of the first board - “hurry up and get it out there”. As to this, I think Mr Goodman was mistaken, as the evidence established a requirement that the trailers be weighed and registered before being set up on a highway. It may be, as Mr Young suggested, that he was anxious that first afternoon to put the registration procedure in motion.

25 The two boards delivered to Impact in December 2003, as appears from photographs in evidence, were considerably larger than the junior boards. Unlike the latter, they were fitted with a hand brake. Mr Goodman said that he could not recall Mr Young saying anything about the handbrake but he, Mr Goodman, applied the brake on one of the two delivered. According to Mr Goodman, 2 manuals regarding the operation of the machine were given to Mr Denton. Mr Goodman did not take either of them with him when he left the yard.

26 In compliance with Mr Denton’s direction, on either the day of delivery of the new trailers or, as I think more probable, a few days later, Mr Goodman proceeded to attach one of the new message board trailers to a vehicle and tow it to a site near the twin Caltex service stations on the Great Western Highway at Blacktown.

27 When he arrived, he said that he let drop the jockey wheel and applied the hand brake. He then uncoupled the chain and detached the electric wiring from the towing vehicle. He dropped a rear stabilising bar or leg to the ground and wound the jockey wheel up until it cleared the tow ball. He then drove the vehicle forward before dropping the jockey wheel back to the ground. Next he wound all four stabilizing legs down so that the weight of the trailer was shared between its wheels and those legs. He said that Mr Young had said nothing about weight distribution upon erection of the sign but had commented that the stabilizing legs were similar in operation to those on the junior boards.

28 The sign in accordance with the RTA’s instruction was parked in a specified location on a grassy strip alongside an emergency breakdown lane on the westbound side of the highway.

29 On 29 December 2003, Mr Goodman in a Holden Rodeo utility returned to where he had left the trailer on the Great Western Highway. He manoeuvred the utility so that its tow ball was under the trailer connection. He then wound the jockey wheel up to take the weight of the front legs, retracted and folded those legs, wound the jockey wheel down to take weight off the back legs, retracted them and then wound the jockey wheel again so that the trailer connection rested on the ball of the utility. He then connected the lights, attached the chain, and checked that the tyres were inflated.

30 After these procedures he towed the trailer to its next location next to the Brook Street ramp entrance to the Warringah Expressway. He was to locate the sign where it would benefit traffic travelling towards the Harbour Bridge and for that purpose was to park the trailer on a triangular island formed where the on ramp from Brook Street met the expressway. In order to position the trailer, he mounted the gutter or kerb on the right side of the entrance ramp and manoeuvred the utility so that it and the trailer were wholly within the island and did not impede the lanes of traffic flow on both sides.

31 Having alighted from the utility he checked the position of both the utility and the trailer and then applied the trailers hand brake, locking it into a set of teeth. He deployed one of the rear stabilizing bars so that its foot rested on the ground

32 He then lifted the trailer from the tow ball, wound the jockey wheel down and undid the chains and electrical connection. His testimony was that as he did this the trailer started to roll backwards towards the Warringah Freeway. Instinctively he grabbed at a handle at the top of the coupling which connects to the tow bar. He explained to Mr Stone:

“Q. Why did you grab it?
A. Two reasons. One, it was rolling away and I didn't want it to go onto the freeway. It was a brand-new piece of equipment worth $60,000. And all I could think of was if it did run on the freeway it was going to cause a big accident. I just - my initial reaction was just to hang onto it, you know. All those other thoughts came into my head later. The first reaction was just to hang onto it. A natural reaction.

Q. With you hanging onto it, did it continue moving?
A. No.

Q. It's there. You're hanging onto it. What happens next?
A. The back leg, one back leg was this - nearly on the ground (indicated). It was only about a mil off the ground. The trailer kept rolling back with me hanging onto it, to a point where I got the back leg to dig into what was - what I could see to be a lip in the concrete. That was enough to just hold it. While I was still hanging onto the sign and that back leg was resting up against the lip, I was able to get another stabilising leg down and wind that down. The two stabilising legs then stopped it from going any further.

Q. Which was the second stabilising leg that you wound down?
A. The one at the front, the left-hand side, driver's side. “

33 Whilst this was happening, Mr Goodman said that he felt his “lower back go”. Notwithstanding, he put the other stabilizing legs down and turned on the sign, thereby completing his task. The board had moved a few feet but was still within the confines of the island which, according to the photographs in evidence, is partly grassed and partly concrete.

34 While still at the scene, he telephoned Mr Denton who was in America and told him of his injury and that he would arrange for “Moose” to do the rest of his work that day. He then proceeded to drive to his home at Homebush Bay where he took some Mersyndol tablets, applied a deep heat poultice to his back and went to bed. I will return later to Mr Goodman’s evidence as to what followed, as it is convenient first to conclude a review of the evidence given relevant to the liability of the Defendants.

35 Mr Goodman said that about 2 weeks after the accident, Mr Young telephoned him:

“Q. Doing the best you can to use the words he used, what did he say?
A. He asked me was I all right and that he'd heard that I injured myself and wanted to know what I'd done and what happened. And I told him that I had injured my lower back and that when I put the hand brake on the trailer kept going. And he proceeded to tell me that the stabilising legs were there to stop it rolling away and that it shouldn't have rolled away if I had the hand brake on. And I just said to him then that he would be better off talking to Greg Denton about anything else. I was pretty upset at the time, and yeah. I was a bit unhappy with Mr Young as in I just related him to being part of the new message board and really didn't want to tell him anything or talk to him.”

36 In cross-examination, Mr Goodman told Mr Morris that the new trailers weighed about one and a half tonnes while the junior boards weighed about 780 kilos. He said that the junior boards were easy to manoeuvre manually, although he agreed with Mr Morris that they were nonetheless of a substantial weight.

37 He agreed that in the 18 months previous to December 2003, he had established a routine for handling junior boards and had never handled the larger board.

38 Cross-examined by Mr Morris regarding instructions given by Mr Denton in relation to the junior boards, Mr Goodman agreed that Mr Denton had told him when on a slope to use the chain as a brake.

39 He told Mr Morris that his practice of first putting down only one of the stabilizing legs was that this leg would prevent the trailer from flipping over backwards, its weight being mostly to the rear. In his view, only one stabilizer was required for this purpose. Mr Goodman explained to Mr Morris that the reason he took the chains off when he did, early in the setting up process, was that he had applied the handbrake and, in effect, relied upon it to be effective. The other reason was that, according to his testimony, the chains were in such a position that they prevented disconnection of the trailer from the tow ball on the utility.

40 The only other lay witness who gave evidence on the issue of the defendants’ liability was Mr Young. Neither Mr Denton nor “Moose” gave evidence and their absence was not explained. I infer that their evidence would not have assisted Impact’s case.

41 Mr Young was in fact the first witness in the case as he was due to leave for overseas on the second day of the trial. His evidence thus preceded that of Mr Goodman, a circumstance which raised some difficulty as the case progressed.

42 Mr Young said the signs which his company supplied were manufactured in America by the Addeo Company. He has been dealing with them since 1992, but more recently the trailers to which the electronic signs are attached have been made in Australia. His company sells the combined units.

43 He described a sign as being an electronic board on a mast attached to a trailer. He said the board can be raised and lowered and that it can be turned through 360 degrees. The sign itself or the message on it is controlled via a computer on board and it can also receive messages by GSM technology. This means that a user can alter the message on the sign with a laptop computer.

44 He testified as to the order for 2 signs he received from Impact about December 2003. Transport from Western Australia was arranged by Impact. He flew to Sydney so as to be there when the signs arrived at a depot where he checked them for damage. He organised a tilt truck to take them to Impact’s yard and arranged to be there when they arrived.

45 Asked by Mr Torrington, whether he had a physical problem in relation to the erection of the signs, Mr Young gave evidence of a stroke suffered in 1995, which has limited the use of his right arm and leg. To apply the hand brake on his trailers, he said that he uses an aid in the form of a piece of PVC piping which he places over the brake lever to lengthen it and enable him to use his shoulder and left hand.

46 According to Mr Young when setting up the sign, you should first rotate and lock all four jacks or legs so that they touch the ground and then adjust them so that the sign is level and high enough for the bar to be lifted from the tow ball. He said that the trailers may also carry wheel chocks for use on sloping terrain.

47 His evidence was that he arrived at Impact’s yard on the afternoon of Tuesday 8 December where he met Mr Goodman and, as I infer, “Moose”. He said that he had a conversation with Mr Goodman regarding the setting up of the sign. Asked to relate what he said the transcript records:

“A. Yeah. Well, the circumstances were that I drove into Mr Goodman's yard with the tilt truck, with one of my trailers on top of the tilt truck and one being towed behind, and obviously I needed to find out where he wanted the trailers put. And Andrew assisted me and the tilt truck operator, actually positioned the signs to exactly where he required them. Because on my signs they have a jockey wheel, which purpose is merely to position the signs when they're in the workshop. And so Andrew fortunately was there and he used his muscle to position the sign trailer into the positions required. And then he was talking about wanting to learn how to input messages into the board, and I said, "Well, the first things first. We need to set up the sign. So I'll take you through the setup," and because these were detached from the vehicle, I just lower the jockey wheel so it was basically where the tow ball would be, and then I'd - with Mr Goodman, I put down the first jack and wound it till it touched the ground. Then I had Mr Goodman do--

Q. Do you recall what you said to him at this stage?
A. I said, "Getting the trailer off the tow ball requires these four jacks to be in place."

Q. And then you've lowered one of the jacks?
A. I lowered the first jack, showed him how to do it, and - well, without inviting him to do it. He was basically on there and was doing the second jack and winding it down. I said, "Just make sure it touches the ground lightly." And then we went over to the other back corner. He did the same there. And the one up the front, he did the same.

Q. Now, after all the jacks had been lowered, were they lowered firmly on the ground to your observation or just touching the ground?
A. They were just touching the ground at that stage. And I mentioned the point is for the trailer to be deployed, you have to support 60% of the trailer weight because in so doing it's engineered in such a way that with the sign deployed and bearing in mind that's four metres from the top of the sign to the ground, it can withstand wind of speed of 140 kilometres an hour. So it's essential to have these jacks in a structural position.

Q. Did then something happen?
A. Well, we just proceeded to wind it up so it was supporting 60% of the weight and--

Q. When you say "we", did you wind or did Mr Goodman wind, do you recall?
A. I probably would have wound them at that stage.

OBJECTION (STONE).

Q. What do you recall you did? What do you recall seeing and what did you do and what did he do?
A. Okay. I'm not certain as to whether or not Andrew would have wound them up or myself.

Q. Now, after they were wound up, what happened then?
A. After they were wound up, then I explained how you open the sign cabinet with a key, opened the sign cabinet, turned the master power on and then released the handbrake which is on the sign to the - the handbrake which is on the front of the trailer, and then demonstrated how you could elevate the sign, and then I had Mr Goodman take over from me and elevate the sign.

Q. Now, did there come a point when you demonstrated the use of the handbrake which is on the drawbar?
A. There did, but the procedure is that I demonstrated how to pack the sign away, so they're doing the same steps in reverse, and having packed it down before I wind the jacks, then I applied the handbrake.

Q. Now, what happened then? Can you tell us what you did and what you said and what Mr Goodman said, if anything.
A. Well, I took out my prop, put it on, slid it on, pushed it into my chest, locked it in and explained to Andrew, "Simply because I've had a stroke, Andrew, this is the reason I use this," and he said, "Well, I've been a truck driver for 10 years. I've obviously got plenty of strength," and he demonstrated how he could lock the brake without use of any leverage.

Q. What did you see him do in this demonstration?
A. Just saw him go prop up the brake, push it forward and lock it in with the other hand.

Q. When you say "lock it in", what do you mean by "lock it in"?
A. Just pointing out that you've got to use sufficient leverage. The handbrake goes forward and there's a little pin that has a number of positions in it. The harder you push, the tighter the handbrake locks. So if you're really strong or if you have the leverage of the pipe, you can lock it in in such a fashion that it won't move.

Q. You say he then demonstrated. Is that correct?
A. He did demonstrate, and he was a very fit young man, and being around trailers for so long, yeah, I was comfortable that he knew how to lock the handbrake.

Q. Was that the end of the demonstration in respect of the physical setting up of it on that day?
A. It was, because at that stage we had no opportunity to attach it to a towing vehicle.

HIS HONOUR

Q. Was this on a concrete floor or on--
A. It was on a concrete floor, yes.

TORRINGTON

Q. Was that the finish of the demonstration on that day?
A. No, we obviously did the computer programming of the sign, and I also supplied quite a few parts to provide a 24-months warranty, which I do on the signs, and I had Mr Goodman sign for those parts, and I demonstrated how you could take a character out and put a character back in, which is one of the parts. “

48 According to Mr Young, he then left “because Andrew was under incredible time constraint to get their machines registered and had to get his first hire”. However, Mr Young said that he remained in Sydney for a few days meeting other clients. He also later in the week said he met Mr Denton who was not present when the machines were delivered, in “a little office” on the Wednesday, and Mr Goodman on the Friday. He said his discussion with Mr Denton was confined to general business prospects. However, in respect of his conversation with Mr Goodman, he said that he asked him whether he had read the manual and received an affirmative reply. He also asked him whether he had any further questions and received a negative response.

49 Towards the close of Mr Young’s examination in chief, a bundle of documents was tendered to which I should make some reference. The documents seem to indicate that the new trailers were transported from Western Australia on 5 December 2003. There is no document which evidences the date of delivery of the trailers to Impact’s yard but there is a receipt for spare parts signed by Mr Goodman on 10 December. I infer that this is likely to be the date of delivery of the trailers.

50 There was no direct evidence as to the date of registration of the trailers in NSW, although it was common ground that such registration is required. There is, however, in evidence a registration renewal certificate indicating that registration expired on 14 December 2006. I infer that this probably demonstrates that the original registration was effected on 14 December 2003.

51 Mr Torrington questioned Mr Young at some length about the handbrake fitted to the trailer. He said that a handbrake was not included in the original design but was later included to meet tender requirements of the RTA in New South Wales. He said that he had never received a complaint about the hand brake or a request that the design of it be altered. He described it as “a standard issue of all trailer parts supplied in Australia “……every trailer you see on the road has a similar parking mechanism”.

As to the purpose of the chains attached to the front of the bar of the trailer, Mr Young said:
“A. Safety chains are applied to the back of the vehicle to ensure that a trailer stays in place notwithstanding that the tow ball fails and, yeah, the procedure is you - the last thing to detach is the chain, and the reason for that is if you're on an incline, you don't want to be taking the trailer off the pintle and not having the chains there in case you have a runaway situation. “

52 Asked by Mr Morris about the operation of the handbrake, Mr Young said he thought there were 5 ratchet points and that he always pulled the handle to at least the third ratchet point. He added that the effectiveness of the brake could be affected by wear and tear and that although it was designed to lock at position two, wear and tear may require it to be pulled to a higher point.

53 However, according to Mr Young, there was no requirement for a parking brake in field operation as the deployment of the four jacks or legs would obviate the need for one. Nonetheless, he maintained that the parking brake properly applied would be effective to prevent the trailer rolling away but said that even with a slope of 5 degrees, the wheels should be chocked “I wouldn’t rely on the parking brake in that situation”.

54 Mr Young told Mr Stone that he stopped manufacturing trailers in 2005 but up to then, from two pages of notes, he personally provided to clients and prospective clients the demonstration he said he provided to Mr Goodman. which he did from two pages of notes. He estimated that he had carried out such demonstration about 100 times. He agreed that he did not hold formal engineering qualifications but held a bachelor of commerce degree.

55 Cross-examined by Mr Stone about the handbrake, Mr Young said he assumed responsibility for quality control of all products sold by Inasmuch and that he tested the handbrakes on the trailers sold to Impact by engaging them and applying manual pressure. He agreed that he did not check whether the handbrake held the machines on a slope.

56 According to Mr Young the approved method for elevating the trailer off the towing vehicle was to use progressively the four corner stabilizing legs. He agreed that another method was to deploy the jockey wheel as is common with domestic trailers, not equipped with stabilizing legs. He then remembered that he had told Mr Goodman not to use the jockey wheel for raising the trailer off the tow vehicle except on a flat surface in a workshop situation. He acknowledged that this caution did not appear in the manual.

57 Mr Young told Mr Stone that with the 4 stabilizers deployed the wheels of the trailer would normally be off the ground and the trailer could not move. He said that in his view it was necessary to position the trailer precisely before disconnecting it from the towing vehicle.

58 Asked whether his evidence as to the instructions given to Mr Goodman were based on his memory or a reconstruction, he replied:

“A. It is a combination of a lot of factors. I know when I got there I know what my intention was to do, I know my usual notes I conduct the training was about so very confident that what I have told you today is what took place. “

………………………………..

Q. Let me suggest what you have done with your memory in relation to this visit is fill in whatever gaps there were in your memory by saying that is what I always do so it must be what I did here?
A. No, I think that is too much of a simplification but in thinking about any interaction with Mr Goodman, I don't recall what we actually chatted about but in terms of the trailer which is my express job in going to Sydney, I do remember quite well my responsibilities about imparting the training. “

59 When Mr Stone suggested that at the time of delivery of the trailers he spent one hour rather than 2 hours with Mr Goodman, he replied:

“A. I disagree with that but again that is based on what I physically remember, what I have construed. It's about, it would have been 2 hours on the signs were delivered but the amount of time I spent with Andrew on the Friday, Mr Goodman on the Friday, I am not sure about the duration.”

60 As to actual times his recollection was that he arrived at Impact’s yard about 2pm or 2.15pm and left about 4/30pm.

61 Mr Young said that he did not hear about Mr Goodman’s injury until it was being investigated by WorkCover or an insurer. He said that he then tried to contact him several times but was unable to do so. He denied any conversation with Mr Goodman as to the cause of his injury. He also said that he has not seen again, as far as he is aware, either of the two trailers delivered to Impact in December 2003 and has not examined the particular trailer which, according to Mr Goodman, was the cause of his injury. He conceded that he continued to operate his business as before for more than 12 months after learning in 2004 that allegations were being made about the effectiveness of the handbrake on the trailers.

62 I formed the view that both Mr Goodman and Mr Young, in respect of the evidence I have reviewed were honest witnesses doing their best to assist. The court. Nonetheless, there were discrepancies which I should make some attempt to resolve. As I have indicated, it seems to me likely that 10 December 2003, the date on which Mr Goodman signed the receipt for spare parts was the date of delivery of the trailers at Impact’s yard. Mr Goodman’s own evidence was to the effect that the same day he was directed by Mr Denton to tow a trailer to the Great Western Highway. I think he was mistaken as to this because, in my opinion, the trailers were not registered until some time later, probably not until 14 December and it is unlikely that they would have been illegally used before registration. Although Mr Goodman testified that Mr Denton was present at delivery, I prefer Mr Young’s evidence that he was not. It seems improbable to me that Mr Goodman would sign the receipt for spare parts if Mr Denton were present and Mr Young’s evidence of meeting Mr Denton in a small office on the Wednesday seems to have a ring of truth about it. If Mr Denton were not present he would have been unable to give Mr Goodman the illegal and, in my view, unlikely direction that he forthwith take one of the trailers to the Great Western Highway.

63 I accept Mr Young’s evidence that he arrived around 2pm and that by the end of the afternoon Mr Goodman was anxious to commence the process of registering the trailers which may well, as mentioned in the evidence, have required at least one of them being taken to a weighbridge.

64 I accept, on the probabilities, that Mr Young gave his usual instructions to Mr Goodman as to the operation of the machinery and that he was at the premises for about 2 hours. It seems probable to me that, although Mr Goodman took in that which he previously did not know, namely the programming of the computer, he did not pay particular attention to Mr Young’s instructions concerning the setting up of the sign. He would have regarded himself as familiar with this part of the operation by virtue of his experience with the junior boards.

65 I do not accept that Mr Young gave any specific caution to Mr Goodman about the use of, or reliance upon, the handbrake, nor do I accept that Mr Young cautioned against using the jockey wheel to lift the bar off the trailer. These matters seemed to me to be very much an afterthought in his evidence. Using the jockey wheel to lift the bar off the trailer was incidentally the method, according to Mr Goodman’s evidence, which Mr Denton adopted in the demonstration at Moore Park.

66 The lay evidence on liability given by Mr Goodman and Mr Young was supplemented by expert evidence and an agreed list of questions and answers following a joint conference of the experts.

67 Mr Colin Simpson, a consulting engineer, was qualified on behalf of the Plaintiff. In December 2006, he inspected a variable message sign mounted on a trailer, which he believed was identical to, if not, the trailer Mr Goodman was operating at the relevant time. That belief was not challenged before me but, in any event in October 2007, he inspected a second trailer, which was identified to him as the trailer upon which Mr Goodman was injured. As I understand his reports, he found no relevant difference between the two trailers. He assumed, as seems to be common ground and as was stated on an identification plate affixed to the trailer, that its weight was 1500 kilograms.

68 Mr Simpson applied a force of approximately 30 kilograms to the hand brake, which engaged the brake on the second notch. In that position he was able to manoeuvre the trailer backwards and forwards manually by pulling or pushing on the front of the tow bar assembly. He concluded that with the ratchet pawl brake engaged on the second notch “the only notch that could be engaged readily, the brakes were ineffective”.

69 Subsequently, Mr Simpson applied the maximum force of which he was capable and managed to engage the third notch on the ratchet. In this position he found the brake effective. He expressed this opinion:

”In the opinion of the writer, it is very clear that there is very little adjustment available in the application of the hand brake assembly, with the maximum that would be expected to be applied by a person such as the Plaintiff, up to about 50 kilograms force on the handle, being ineffective in applying the brakes.

It was not until a force well in excess of 100 kilograms was applied that the brake could be applied, at which time the third notch in the ratchet pawl assembly was engaged.”

70 After stating that he attended the Warringah Expressway seeking to identify the location of the trailer at the relevant time, he observed:

“That the slope of the (concreted) road shoulders appeared to vary between about 3% to 5%.”

71 Following this observation, Mr Simpson said:

“At a weight of 1500 kilograms, and with the trailer on a slope of 3% (a normal road camber slope) then the force required in order to restrain the trailer is calculated to be 78 kilograms. If the slope is increased from 3% to 5% then a force of approximately 130 kilograms is required in order to restrain the trailer against rolling down the slope.

Both of these forces are well in excess of that which is regarded as being reasonable as a lifting, pushing or pulling force and the writer is of the view that it would be highly unlikely that the Plaintiff would be physically capable of applying the required force in the event that the actual slope existing at the time was of the order of 5%.

It is also noted, through measurement by the writer, that the height of the handle for the brake above ground level is approximately 650 millimetres. As this is the highest point on the front of the trailer it is this area that is the highest point available in order that the Plaintiff may attempt to restrain its movement. This means that, in order to attempt to restrain the movement of the trailer, the Plaintiff would be required to bend or crouch over to, at most, a height of just 650 millimetres above ground.

The force applied by the Plaintiff in his attempt to restrain the trailer is therefore at least 78 kilograms, possibly as high as 130 kilograms (if successful) but with the back bent significantly so as to have a hand grip at just 650millimetres above ground level.”

72 Mr Neil Gillies, a Consultant Mechanical Engineer, provided a report to the Nominal Defendant which was tendered in the case for Inasmuch. In his report, he gave little attention to the handbrake, which he seemed to regard as irrelevant as not required for a trailer of this kind. He accepted that the hand brake may not have been sufficient for the mass of the trailer and slope on which it was situated at the relevant time.

73 In his report dated 21 April 2008 to the Nominal Defendant’s solicitors, Mr Gillies pointed out reasonably enough that the accident would not have occurred if all four stabilizing legs had been put to the ground before the chains were removed.

74 Mr Simpson and Mr Gillies participated in a joint conference on 22 May 2008 during which they addressed 13 questions posed to them. They both agreed that there was no legal requirement for the relevant trailer to have a hand brake. As to whether it was desirable for there to be such a brake they provided these answers:

“Simpson: Yes to control the trailer when being disconnected from the towing vehicle or when not supported by the four jacks.

Gillies: In my opinion not relevant to this case because the trailer should have been on the four jacks prior to disconnection from the towing vehicle. As a general proposition it would be desirable to have a park brake on a trailer to ensure the trailer is held in position when parked.

75 The remaining questions and answers were as follows:

Question 3:
If a park brake was to be incorporated into a trailer of the subject size and dimensions should that park brake have been functional? If so, why?

Answer:
Simpson: Yes, so as to prevent unintended movement of the trailer.

Gillies: Yes, so that it can be parked.

Question 4:
Was the park brake on the subject trailer functional? If not why not?

Answer:
Simpson and Gillies: No, because it could not be engaged with normal effort.

Question 5:
Was the park brake on the subject trailer effective if engaged to the second notch?

Answer:
Simpson and Gillies: No.

Question 6: Was the park brake on the subject trailer capable of being engaged to the third notch? (with normal human effort).

Answer:
Simpson and Gillies: No.

Question 7:
Was the braking system on the subject trailer effective if the handbrake was engaged to the third notch?

Answer:
Simpson and Gillies: Yes provided the trailer was not on a slope of more than 2 or 3 degrees.

Question 8:
Was the park brake system on the subject trailer adequate to restrain the trailer when parked on a modest slope say 2 degrees or more?

Answer:
Simpson and Gillies: See reply to question7, provided the park brake was engaged to the third notch, otherwise no.

Question 9:
For this particular trailer (having regard to its dimensions and weight) would a spring brake have been preferable to a manual (hand applied) braking system? Explain the difference between a spring braking system and a manual braking system and why one may have been preferable to the other.

Answer;
Simpson and Gillies:: Preferable but not practical nor commercially available. A spring brake is automatic and does not require human involvement.

Question 10:
Would a model system of work for the placement of the trailer see the trailer placed in position (by use of the towing vehicle) and elevated on its jacks prior to disconnection from towing the vehicle?

Answer:
Simpson and Gillies: Yes

Question 11:
Would a model system of work incorporate the use of wheel chocks or chains to prevent the trailer moving once in its final resting position?

Answer:
Simpson and Gillies: No – the wheels should be elevated above ground by the use of the four jacks.

Question 12:
In the circumstances of this matter, what safe system of work (if any) should be deployed when it is not possible (due to local circumstances) to use the towing vehicle to place the trailer into its final position (assuming the trailer had to be manually manoeuvred into position)?

Answer:
Simpson and Gillies: There is none.

Question 13:
Is there agreement between the experts on the issues of the weight of the subject trailer? If so, what is the agreed weight? If not, what is the opinion of each expert on this issue.

Answer:
Simpson and Gillies: Approximately 1,500 kilograms and not more than 2,000 kilograms.

76 As it seems to me, there is no significant divergence relevant to this case in the opinions of Mr Simpson and Mr Gillies. I accept their evidence as reflected in the answers to the questions posed at the joint conference and to that extent reject the evidence of Mr Young as to the efficacy of the handbrake.

77 Of the 2 experts only Mr Simpson was required for cross-examination. He said that he had personally owned a boat trailer weighing between 1200 kilos and 2300 kilos. It was fitted with a handbrake and he was accustomed to restraining it with the brake when disconnecting it from the towing vehicle.

78 He said the use of stabilizing legs on trailers was common and that the deployment of such legs was a simple operation. He agreed with Mr Torrington that the chains attached to the bar of the trailer he inspected would restrain the trailer if the tow connection broke during towing. He also agreed that chains can be used as the last method of disengagement from the trailer.

79 In Mr Simpson’s opinion, there would have been no difference in the operation of the handbrake between the date of manufacture and the date of his inspection about 3 years later.

80 In re-examination, Mr Simpson reiterated to Mr Stone that he estimated a force of 100 kilos would have been required to engage the handbrake on notch 3 and that it was not functional at notch 2:

“I tested it on the occasion applying it to the second notch, moving the trailer, feeling what it was doing while I was moving it and listening for any rubbing of the linings against the brake pads and there was nothing.”

81 Particulars of negligence alleged against Impact were:

“(a) Failing to endure that the trailer was safe and without defect before allowing the Plaintiff to use the same.

(b) Failing to inspect and test the said trailer to ensure that the brakes were in safe working order when in use upon sloping ground.

(c) Failing to provide means of restraining the trailer when placed upon sloping ground.

(d) Failing to carry out necessary repairs and/or maintenance upon the trailer so as to ensure that the same was without defect and safe to be operated.

(e) Failing to properly instruct the Plaintiff in the proper use and operation of the trailer.

(f) Failing to warn the Plaintiff of the dangers to which he was exposed in using a trailer with a defective braking system when used upon uneven ground.”

82 I accept the evidence of Mr Goodman as to the circumstances of the accident itself and as to the instructions, or lack of instructions, given to him by Mr Denton. That being so it is I think unnecessary to go beyond Mason J’s well know statement of principle in Kondis v State Transit Authority (1984) 154 CLR 672 at 687:

“The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work.”

83 Mr Morris submitted that no inference should be drawn from Mr Denton’s absence from the witness box as Mr Goodman was already well trained in dealing with road signs mounted on trailers, save for the use of a hand brake. So far as the brake was concerned, the trailer being brand new, there was no obligation upon Mr Denton to satisfy himself about it or give any particular instruction to Mr Goodman. He referred to Pearce v Round Oak Steel Works Pty Ltd [1969] All ER 680 and to the passage quoted with approval from Lord Reid’s speech in Davie v New Merton Board Mills Ltd [1959] 1 All ER 346 at 367:

“…… that he [a contractor] is not liable for the negligence of the manufacturer of an article which he has bought, provided that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make”.

84 In my opinion, the task which Mr Goodman was directed to undertake was inherently extremely hazardous. He was required to manoeuvre and set in place a sign attached to a trailer weighing at least 1,500 kilograms. Significantly, the sign was to be established on a narrow island between an on ramp and a very busy expressway. There was an obvious danger that the trailer might roll into the traffic lanes of the expressway or the on ramp.

85 In my opinion a reasonable employer in the position of Impact considering the matter in terms of Wyong Shire Council v Shirt 29 ALR 217 would have identified the danger and would have taken steps to provide and enforce a system of work which would enable the task to be done as safely as was reasonably possible. There was no evidence that this was done nor indeed that Mr Denton or anyone else in Impact even directed his or her mind to the problem. The duty, in my opinion, was certainly not discharged by reliance on Mr Goodman’s previous experience with junior signs which, on the evidence were very much smaller and weighed about half as much as the machinery under consideration in this case. Mr Denton was not entitled to rely simply on the instructions given by Mr Young to Mr Goodman, even if contrary to my conclusion he was present. It was for Mr Denton to stipulate a safe system of work and there is no evidence that he did so. Such a system would have at least required that all four stabilizing legs be deployed before the trailer was disconnected from the towing vehicle and that no reliance be placed on the handbrake. The only relevant evidence was that of Mr Denton demonstrating how he set up junior boards by using the jockey wheel to lift the trailer away from the towing vehicle.

86 There was, in my opinion, a direct correlation between Impact’s breach of duty to devise and implement a safe system of work and Mr Goodman’s accident and injury. It was foreseeable that if he relied on the handbrake or failed to deploy the stabilizing legs before disconnecting the trailer it was likely to roll away, creating a situation of extreme danger, given that it was likely to roll towards a busy expressway. It was, on the evidence, quite inappropriate for him to use the jockey wheel to remove the trailer from the towing vehicle as he did in this case, before deploying the stabilizing legs. It was also quite inappropriate for him, as I find he did, to rely on the handbrake. Having created a very dangerous situation, he acted impulsively on the spur of the moment to prevent a catastrophe. This act, which in my view was causative of the injury which is the subject of these proceedings, was directly related to Impact’s breach of duty as an employer. In my opinion, Mr Goodman has established breach of duty of care on the part of Impact.

87 Different considerations apply to Mr Goodman’s case against Inasmuch. The Further Amended Statement of Claim particularised negligence as :

“(a) Failing to undertake any timely inspection of the trailer to ensure that the same was safe before providing the same to the First Defendant.

(b) Allowing a trailer to be sold with a defective handbrake system.

(c) Failing to warn that the braking system would not hold the trailer upon sloping ground.

(d) Failing to undertake any or adequate quality control so as to ensure the trailer would not be sold with inadequate or inoperable braking systems.

(e) Providing a trailer with a handbrake system inadequate for the size and weight of the trailer.”

88 As I have already indicated, while I am of the view that Mr Young’s dissertation upon the trailers and signs at delivery was not confined to computer programming, I am not satisfied that he discussed the limitations of the hand brake because in his mind there would have been no need to do so. I accept that he regarded the hand brake as useful only in parking the trailer on level ground and that he would not have set up the sign without first deploying the stabilizing legs. Mr Young did not, however, assert that he gave any specific warnings as to the limited way in which the parking brake should be relied upon.

89 Mr Stone submitted that to categorise the brake as useless “would understate the hazard”. In his submission users of the trailer would be mislead by the presence of the handbrake into believing that it’s application would prevent the trailer rolling, as he submitted happened in this case. That proposition seems to put the case against Inasmuch at its highest. On the evidence of the experts, the hand brake would not prevent the trailer rolling, even if it was engaged to the third notch, if it was on a slope of more than 2 or 3 degrees. Moreover, according to the experts, the park brake was not capable of being engaged to the third notch with reasonable human effort.

90 It was agreed that an expert report obtained by Inasmuch was not served and I infer that it did not assist its case.

91 As mentioned earlier, I accept the evidence of the experts that the hand brake could not be effectively applied by the exercise of normal human effort. The only evidence to the contrary was that of Mr Young but he conceded that he needed to extend the lever with a piece of PVC pipe albeit explaining that this need arose from a particular physical incapacity.

92 Nor, in my view, is there any reason to conclude, on the evidence, that the performance and characteristics of the hand brake deteriorated between its use by Mr Goodman and the date of inspection by Mr Simpson and Mr Gillies. Such a suggestion was specifically rejected by Mr Simpson.

93 Mr Torrington, in his submissions, focussed on the conflict between the evidence of Mr Goodman and Mr Young as to what was said at the time of delivery. For the most part, as I have indicated, I would resolve that issue in favour of Mr Young. However, in my view, that is not the end of the matter. The real issue, as it seems to me, is not whether Mr Young provided adequate information as to the setting up of the trailer but whether the trailer itself was reasonably safe when operated by relatively unskilled or temporarily distracted or careless workmen. In other words was it sufficient that the trailer could safely be set up if as a first step the 4 stabilizing legs were deployed; if adjustment of those legs was the method by which the trailer was lifted clear of the towing vehicle rather than the jockey wheel; and if reliance was not placed upon the handbrake except on a level surface. The issue has to be considered in the context plainly foreseeable to the manufacturer of the trailer that it would be employed in such hazardous circumstances as existed in this case, namely, that it would be set up in the vicinity of a busy expressway.

94 In my opinion, as delivered the trailer was dangerous, as Mr Young knew or ought to have known. I accept Mr Stone’s submission that the presence of the handbrake was misleading to potential users in that it encouraged a belief that it could be relied upon to restrain the trailer. This was an obvious risk of considerable significance, given that the sign was likely to be positioned close to an expressway. A reasonable man faced with this foreseeable danger, in my opinion, would have sought to avoid it by attaching a prominent sign which warned against using the handbrake to restrain the trailer on a sloping surface, and against disconnecting the trailer from the towing vehicle until all four stabilizing legs had been employed. The expense of so doing would, I infer, have been insignificant. The risks against which such warnings would be directed were not, in my opinion, obvious risks within s 5F of the Civil Liability Act. According to the evidence of Mr Young, the handbrake was designed to restrain the trailer on level surfaces such as in a workshop and the stabilizing legs were, as it seems, designed to stabilize the trailer and sign in high winds.

95 In my opinion there was causation between Inasmuch’s failure to warn and the injuries sustained by Mr Goodman and it is appropriate for the scope of Inasmuch’s liability to extend to such harm within s 5D of the Civil Liability Act.

96 Having found negligence against both Impact and Inasmuch, it is necessary for me to apportion responsibility for the purposes of s 151 Z of the Workers Compensation Act. Both Mr Torrington and Mr Stone suggested that apportionment should be 80% and 20%. However, so Mr Torrington submitted the 20% should be attributed to his client and 80% to Impact. Mr Stone submitted that the reverse should apply.

97 Having regard to all the evidence, I think a just and equitable apportionment would require Impact and Inasmuch to be held equally responsible for Mr Goodman’s injury. Therefore I would apportion liability of 50% to each of them.

98 By its defence Impact pleaded contributory negligence, particularised as :

“(a) Failing to restrain the trailer by applying the hand brake correctly.
(b) Failing to ensure that the trailer was properly restrained before uncoupling it from the towing vehicle.

99 On the basis that Mr Goodman reasonably believed, as I accept, that the handbrake would hold the trailer when he disconnected it from the towing vehicle, I am not persuaded that Impact established that he failed to take reasonable care for his own safety. If he failed to apply the handbrake correctly that was because of its defective design or manufacture as identified by Mr Simpson and Mr Gillies. In any event, however, in accordance with their joint opinions, even if applied correctly, the brake was not likely to hold the trailer if the slope of the land on which it rested was more than 2 or 3 degrees. There was nothing to warn Mr Goodman of this circumstance. To the extent that the use of the jockey wheel contributed to what occurred, Mr Goodman was doing no more than Mr Denton demonstrated with the junior boards.

100 Inasmuch also pleaded contributory negligence, particularised somewhat generically and unhelpfully as :

“(a) Failing to maintain a proper lookout;
(b) Failing to take any, or any sufficient, care for his own safety;
(c) Failing to move with care in the circumstances;
(d) Failing to heed, or to heed adequately, the physical characteristics of the area;
(e) Exposing himself to risk of injury in the circumstances.”

101 Contributory negligence as against Inasmuch is to be considered in light of S5R of the Civil Liability Act:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm .

……………………………
Mr Goodman’s current impairments do appear to be linked to the accident. The possibility of embellishment in regard to his symptomatologies cannot be categorically excluded.

169 There is, in my opinion, little discord in the medical opinion. Whatever may be the explanation for calluses (with ingrained dirt) which Dr Cummine noted on Mr Goodman’s hands and feet and dirt in his fingernails, I am satisfied that since the accident he has not engaged in paid employment. I accept his evidence that he has constant disabling low back and leg pain; that he is depressed to a significant degree; that his capacity to lead a normal life is severely affected; and that he has lost his ability to engage in sexual relations with his partner. All these matter relate directly to the subject accident.

170 I am satisfied that as a matter of practical reality, Mr Goodman is unemployable. However, in my view, he has not lost all capacity to earn income, especially if he can identify something capable of being carried on from his own home and at his own pace. Although I am satisfied that he is genuinely motivated to re-enter the work force and that up to the present has been sincere in his efforts to do so, his failure in that regard must lead to a pessimistic prognosis. I would assess at 25% of his pre accident capacity his residual earning capacity.

171 In relation to the action against Impact, damages are to be assessed under the Workers Compensation Act. In particular, no damages may be awarded unless the injury resulted in a degree of permanent impairment, that is at least 15%, the only damages that may be awarded are for past economic loss due to loss of earnings and damages for future economic loss due to impairment of earning capacity. In relation to the last mentioned, earning capacity after age 65 is to be disregarded. The degree of permanent impairment of Mr Goodman has been assessed pursuant to Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) at 17%. Accordingly, the threshold established by s 151H of the Workers Compensation Act is met.

172 As to past economic loss due to loss of earnings, as indicated above, I am satisfied that despite reasonable and well motivated efforts, Mr Goodman as a consequence of the accident has been incapable of earning and in fact has not earned income from personal exertion since 29 December 2003. It is appropriate, in my view, to quantify his loss up to date as submitted by his counsel, namely $244,528 loss of earnings; $13,607 “Fox v Wood” component; and $26,898 past loss of superannuation. These amount to $285,033.

173 In relation to future economic loss, counsel submitted that it should be predicated on notional earnings at the rate of $930 per week to age 67. In my view, as earlier stated, Mr Goodman has some residual earning capacity, which I assess as 25% of his pre accident capacity. Moreover, s151 1A of the Workers Compensation Act presently requires me to disregard any earning capacity after 65.

174 Accordingly, I would quantify lost earning capacity on the basis of a loss of $698 until age 65, the multiplier being 783 and I would discount the product by 15% for general vicissitudes. The calculation comes to $465,534. I would also allow lost future superannuation benefits of $51,099. In the result, damages are assessed against Impact in the sum of $800,667.

175 As against Inasmuch, Mr Goodman is entitled to be awarded damages for non economic loss based on the severity of his loss as a proportion of a most extreme case, applied to the present maximum award of $450,000. Counsel for Mr Goodman submitted the percentage appropriate is 65%. Counsel for the defendants submitted that the figure is closer to 30%. In making an assessment I take into account Mr Goodman’s evidence generally; and his comparative youth (See Rees v Rees (1994) MVR 103). In many ways his life has been catastrophically altered by the accident. The impact is partly demonstrated by comparing his pre accident appearance in the photographs tendered into evidence with his presentation in the witness box. I also give particular significance to his loss of sexual function (see Knight v Government Insurance Office of NSW {1995] NSWCA 246)

176 In the result, I assess Mr Goodman’s non economic loss at 50% of a most extreme case, namely $225,000. I would make the same awards for past economic loss; “Fox v Wood” component; past loss of superannuation; future economic loss and future loss of superannuation as the claim against impact. Those respective sums are - $244,528; $13,607; $26,898; $464,534 and $51,099 and total $800,666.

177 In respect of past medical treatment I allow the agreed sum of $119,992. The sum of $319 per week is claimed for medication and treatment in respect of the balance of Mr Goodman’s life expectancy. This claim totals $285,505 and includes weekly counselling $80 per visit and weekly visits to a general practitioner. The evidence, in my opinion, does not warrant an allowance of this magnitude. There is no medical need for him to visit a general practitioner each week and, in my opinion, it is unreasonable to allow against Inasmuch a sum of weekly counselling for the balance of Mr Goodman’s life. Doing the best I can, I allow $200,000 under this head.

178 A claim is made for past gratuitous domestic services provided by Ms Pellaers, that claim being quantified at 8 hours per week. In the light of Ms Pellaers’ evidence, I think the sum claimed is reasonable and I allow $77,960 calculated on the basis of 8 hours per week at $22.50 per hour for 282 weeks totalling $77,960.

179 In respect of the future, in light of the evidence of Dr Bentivoglio and Mr Goodman’s own evidence, I do not think he requires more than 3 hours paid domestic help per week. On that basis at $30 per hour and using a multiplier of 895, I award $80,550.

180 In total therefore, I would assess damages against Inasmuch in the sum of $1,384,176.

181 Adjustments will need to be made to reflect the provisions of s 151 Z of the Workers Compensation Act. Accordingly, I stand the matter over until Monday 7 September at 9.30am and invite the parties to bring in Short Minutes of Order to reflect these reasons. The short minutes should also provide for costs orders.