Bailey v Kmar Engineering Pty Ltd - [2025] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation: Bailey v Kmar Engineering Pty Ltd [2025] NSWSC 1266
Hearing dates: 19, 20, 21 and 25 August 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The plaintiff is directed to file and serve Short Minutes of Order reflecting this judgment within 48 hours of the publication of this judgment.

Catchwords:
TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence
TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken
DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)

Legislation Cited:
Civil Liability Act 2005 (NSW), ss 5B, 5C, 5D(1), 5F, 16(2), 33
Work Health and Safety Regulation 2017
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11
Bird v DP (a pseudonym) [2024] HCA 41
Burton v Brooks [2011] NSWCA 175
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [2011] HCA 21
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
Fox v Wood (1981) 148 CLR 438; [1981] HCA 41
Garzo v Liverpool/Campbel/town Christian School [2012] NSWCA 151
Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Liu v Lam [2024] NSWSC 1306
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253
Pavlis v Pavlis [2021] NSWSC 1117
Pavlis v Pavlis [2021] NSWSC 1117
RHG Mortgage Limited v Ianni [2015] NSWCA 56
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Sangha v Baxter [2009] NSWCA 78
Shoalhaven City Council v Pender [2013] NSWCA 210
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62
Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62

Texts Cited:
Nil

Category: Principal judgment
Parties: Mr Justin Bailey (Plaintiff)
Kmar Engineering Pty Ltd (First Defendant)
MMM LOGISTICS PTY LTD (Second Defendant)
Haworth Transport Services Pty Ltd (Third Defendant)
Representation:
Counsel:
L Robison with D Gray (Plaintiff)
M Noakhtar (First Defendant)
W Reynolds (Second Defendant)
D Kelly (Third Defendant)
Solicitors:
Santone Lawyers (Plaintiff)
Mills Oakley (First Defendant)
Hall & Willcox (Second Defendant)
Rankin Ellison Lawyers (Third Defendant)

File Number(s): 2021/71170
Publication restriction: Nil

JUDGMENT

On 21 September 2018, Justin Jones Bailey, the plaintiff in these proceedings (“Mr Bailey”) drove a flatbed truck, the tray of which was about 40 feet long, to a location at Doyalson, New South Wales (“the site”). The site was occupied by KMAR Engineering Pty Ltd, the first defendant (“KMAR”).
At this time KMAR was incorporated and operated a business of steel processing which was carried out in an industrial building at the site (“the premises”). Mr Bailey arrived at the premises at about 12:55pm. He reversed his truck, as he had done a number of times before, into the loading or delivery dock of the premises.
There was no dispute that Mr Bailey lawfully entered the premises. KMAR regularly had deliveries of steel at the premises as part of its business. As at this date, Mr Bailey was employed by the third defendant, Haworth Transport Services Pty Ltd (“Haworth”).
The steel contained on the truck was owned by Liberty OneSteel, which used MMM Logistics Pty Ltd (“MMM”), the second defendant, to collect and deliver the steel. According to the “Driver Daily Work Sheet” of MMM for 21 September 2018 (“the log book”), the delivery to KMAR’s premises was the eighth and last delivery for that day. As the proceedings evolved, no attention was given to the relationship between the second defendant and KMAR or Mr Bailey as to the delivery of the steel on this day. It was agreed that Haworth had directed Mr Bailey to attend the premises to deliver the steel.
Upon positioning the truck into the loading dock of the premises, Mr Bailey filled out the log book and then exited the vehicle. It was at or about that time that Mr Bailey encountered Peter Learmonth (“Mr Learmonth”). Mr Learmonth was, as at 21 September 2018, the sole director of KMAR. In his Evidentiary Statement in these proceedings of 20 May 2025 (“the Learmonth Evidentiary Statement”), Mr Learmonth referred to himself as the only employee of KMAR at the premises on 21 September 2018.
There was situated in the premises a “Demag” 10-tonne gantry crane which was used to lift and unload steel beams. The gantry beam (or bridge) ran across the width of the industrial building and moved up and down the building for approximately the length of the building.
The gantry crane was connected to a trolley which ran along the length of the beam or bridge of the crane. It had a winch attached to chains for the lifting or lowering of loads.
In the result, the gantry crane enabled the unloading and movement of loading within the premises, as Mr Bailey described it, in all compass directions: north, south, east and west (which directions were shown in the undersection of the beam).
The chains hanging from the trolley on the crane had attached hooks (“the hooks”). The hooks used in lifting of steel beams had a ‘C’ shape. The gap in the ‘C’ could be closed by clipping or similar mechanism to close the face of the hooks.
In a picture of the hooks in the proceedings, the hooks were shown holding a “plate grab”, which could be used to move the steel beams to position them on trucks (and presumably for other purposes).
On the tray of the truck were steel beams (“the beams”) which were being delivered to KMAR on 21 September 2018.
The beams ran along the length of the flatbed truck and were situated on steel cross beams (with a wooden insert to stop sliding) running perpendicular to the long edges of the tray of the flatbed truck (“the cross beams”).
The beams were in two bundles each consisting of three steel beams (“the bundles”). In the Learmonth Evidentiary Statement, Mr Learmonth referred to a photograph attached to an MMM incident report appearing to depict 3 bundles but as the evidence unfolded it became apparent that the third bundle consisted of a lighter load of pipes.
Mr Bailey described in his oral evidence the steel beams as “roughly 40 foot long and would have been 50 centimetres by 70 centimetres square” (he stated the beams were 48 feet long in his Evidentiary Statement dated 14 May 2021 (“Evidentiary Statement”)). Further, he stated each bundle weighed 5 tonnes.
Mr Learmonth described the steel beams as “lengths of 53UB92, 12 and 15 metres in length”. He stated that “The beam is 530 high, and, in this instance, it's laid flat across the truck so it's 530 wide, and the 92 is, 92 kilograms per metre of beam. The – the width of the beam is probably about - about 200. I don't have the number right off my head. So, three of them stacked on top of each other adds up to about 650 millimetres high”. He also stated that each “stack” was “65cm in height including dunnage”.
Mr Learmonth also described the cross beams fitted to the tray of the truck as "120 mil" high. As Mr Bailey described it, the cross beams were high enough to allow him to “stick” his hand under the steel beams.
It is apparent from that evidence that the top of the bundle of the steel beams, when situated on top of the cross beams, would have been approximately 77 centimetres.
On the evidence, I conclude that, if the beams were 15 metres in length (49 feet) then the weight of the bundle would seem to have been slightly more than 4 tonne (at the weight of 92 kilograms per metre per beam in a bundle of 3) Some beams were said to have been 12 metres in length, corresponding to Mr Bailey’s estimate of 40 foot.
There was no dispute that Mr Learmonth and Mr Bailey commenced unloading the steel from the truck on 21 September 2018. Nor was there any dispute that at the time the first set of steel beams were lifted, Mr Learmonth was standing on the ground next to the truck a short distance from the truck.
Mr Bailey was positioned on the tray of the truck near the steel, a short distance from Mr Learmonth.
In order to lift the steel on 21 September 2018, Mr Learmonth operated the crane to lift using the pendant (apparently using the ‘slow’ speed on that device). During the lift the bundles rotated creating a swinging action. Mr Bailey described what then occurred as follows:

“…So I turned to my left, I got my left foot up onto the beams that were behind me. However, I was still standing on my right leg, and the beam swung into my right leg and crushed my right leg between the pack that was stationary, and the pack that was being lifted. I do also recall that the beams, I heard banging. So the beams that were attached to the crane pivoted on my leg, and I heard the beams collide together down one end, and then the other end.”

In the result, Mr Bailey was injured when hit by the bundle of steel beams during the course of the unloading of the truck (“the incident”). The incident occurred at 1.15pm.
There were factual disputes as between Mr Bailey and KMAR. These related to the acts or omissions of Mr Bailey and Mr Learmonth in the course of unloading the steel. They were the only persons present during the incident and gave, in certain respects, conflicting accounts. The resolution of those issues will involve, inter alia, an assessment of the credibility of those witnesses. Ultimately, I will find Mr Bailey a witness of credit and Mr Learmonth not. In areas of disputed accounts of the circumstances of the incident, I will prefer the evidence of Mr Bailey. I will give my reasons for forming that view after turning first to the content of the proceedings and providing a summary of Mr Bailey’s evidence as to the circumstances of the incident.

THE PROCEEDINGS

By a Statement of Claim filed on 12 March 2021, Mr Bailey commenced proceedings against KMAR. During 2022, Mr Bailey joined MMM and a third defendant to the proceedings, INFRABUILD (Manufacturing) Pty Ltd.
During 2023, Mr Bailey amended his pleading and replaced the then third defendant, INFRABUILD (Manufacturing) Pty Ltd with Haworth. During 2024, the current iteration of the pleadings, the Further Amended Statement of Claim was filed on 28 July 2023 (“FASOC”).
On 24 July 2025, Mr Bailey discontinued his case against MMM by filing a Notice of Discontinuance. On 20 August 2025, the second day of the trial, Mr Bailey consented to Haworth being removed from the proceedings (see Exhibit 7).
On 21 August 2025, KMAR filed in court a Further Amended Defence to the FASOC with handwritten notations and a final form of the pleading was later filed online.
There are also significant shifts in the three cross-claims filed in the proceedings. By Notice of Discontinuance, variously executed in August 2025, MMM discontinued the Second Cross-Claim filed on 30 January 2024 as against KMAR.
The First and Third Cross-Claims remain extant. However, the Court was advised that it was not required to decide any matter in relation to them. The Court was informed that KMAR and Haworth had reached an agreement in respect of those cross claims and the orders finalising them. The following exchange occurred in that respect:

“GRAY: Your Honour, there's one matter that I've - I'd like to hand up some proposed consent orders. An agreement has been reached against the third defendant.
HIS HONOUR: Thank you. I make the order proposed in the terms proposed. So the net effect of that order is that the third defendant is removed from the proceedings in effect.
KELLY: As a third defendant, your Honour, yes. Your Honour, I'm also happy to be able to tell you that I'm now going to be removed from the proceedings as a cross-defendant. Your Honour, Mr Noakhtar and I have reached an agreement that will dispose of both cross-claims. That is, the first cross-claim by my client against his and the third amended cross-claim by his client against mine. At the moment all we'd ask your Honour to note is that the - both cross-claims - there's an agreement in relation of disposal to those cross-claims, but consent orders in relation to them can't be filed until completion of the plaintiff's claim.
HIS HONOUR: Completion of the?
KELLY: Plaintiff's claim. That is, whether by judgment or by agreement. Your Honour will not be required to decide any matter on either cross-claim which I can tell your Honour will save an enormous amount of time and headache.
HIS HONOUR: So the net result of that is that there will be no remaining cross-claims in the proceedings?
KELLY: Correct, your Honour. So to make it clear, as between ourselves we agreed a mechanism to deal with those matters and finalise them formally on 45 the Court - either after judgment's handed down or the parties - the plaintiff and the first defendant reach an agreement. Your Honour will not have to decide any issue about them.”

In the result, what remained in substance in the proceedings was the claim by Mr Bailey under the FASOC and the defence of that claim by KMAR.
However, KMAR sought a ruling on apportionment for the purposes of s 151Z of the Workers Compensation Act 1987 (NSW) (“WC Act”) even though Howarth was excused from attendance. Ultimately after the hearing, KMAR and Haworth filed a Statement of Position in that respect, stating:

“Haworth Transport does not oppose the Court determining the s 151Z(2) issue raised in the First Defendant’s Defence first filed on 2 July 2021 (as amended). That is, Haworth Transport does not oppose the Court determining the apportionment of liability between Haworth Transport and the First Defendant pursuant to section 151Z(2) of the Workers Compensation Act 1987 (NSW), in the absence of the employer. Haworth Transport’s position is that the Court would be acting consistently with principle and statute in determining the apportionment of liability pursuant to s 151Z(2), in its absence.”

I have proceeded on that basis.

Features of the FASOC

It is appropriate to briefly touch upon the FASOC and some issues raised by KMAR about the pleadings within that claim.
The pleadings stated that Mr Bailey was “working under the direction, supervision and control of the Defendants who controlled [Mr Bailey’s] system of work”.
It was submitted by KMAR that this form of pleading represented a legacy of the earlier stages of the proceedings and that previously both MMM and Haworth had admitted to controlling Mr Bailey’s system of work.^[1] KMAR denied the allegation in its Amended Defence.
1. MMM amended its defence to deny the allegation but KMAR contended that this was done without legal consent. The Court was not asked to rule on this question.
KMAR contended that it was left in a position where it was defending an allegation, notwithstanding that other parties had admitted to it but had left the proceedings. That much is true, but it barely reflects the reality of the proceedings.
MMM and Haworth, as the second and third defendants respectively, left the proceeding after the commencement of the trial. It would have been technically possible to amend the further amended proceedings at that stage but to little effect given that counsel for Mr Bailey, Mr L Robison, made clear in opening that KMAR was vicariously liable for the primary tortfeasor, Mr Learmonth, who had controlled the system work by provision of directions, and being in charge of and operating the crane.
KMAR also submitted that the FASOC “is problematic” because the allocation of a breach of duty of care was not accompanied by any pleading articulating the risk of harm, or the reasonable response to it, for which Mr Bailey contended although Mr Bailey’s position as to those matters was made clear in the proceedings.
KMAR also made reference to the deficiency of the pleading in [8] of the FASOC, which merely referred to the “accident [being] reasonably foreseeable”, and that the only identification of the conduct, the subject of the claim, was that an employee of a defendant operated a crane, which was carrying a steel beam attached with chains such that the beam collided with Mr Bailey causing a crushing injury (FASOC [7]). It was properly submitted that the allegation so expressed commenced with the injury rather than the risk of harm which was to be guarded against and was defective to that extent: 5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785 at [25]. Furthermore, it was submitted that the risk of personal injury was again deficient.
KMAR also complained that the opening submissions made on behalf of Mr Bailey, whilst clarifying these issues to some extent, left the proceedings relatively unpleaded and, therefore, in an unsatisfactory state.
However, in my view, the opening submissions in writing for Mr Bailey, which were the subject of elucidation in opening oral submissions, made clear the basis upon which Mr Bailey’s case on liability rested. Those submissions, so far as they concern KMAR, were as follows:

“5. There can be no doubt that the primary tortfeasor in the matter is Mr Learmonth. No explanation for his conduct is consistent with an absence of negligence. The accident could only have occurred as a result of [not] keeping a proper lookout as to persons in the crane's path. Pursuant to Bird v DP (a pseudonym) [2024] HCA 41; 98 ALJR 1349; 419 ALR 552; 334 IR 404 there is equally no doubt that the first defendant, as his employer, is liable for that negligence. Interesting questions may arise as to whether the first defendant was itself negligent, but that is probably unnecessary to resolve (except in relation to employer-liability in exposing the plaintiff to the site).
6. The CLA modifies the common law of liability as against the first defendant but not the third (see s.38). Applying the statutory criteria as one must vis the first defendant:
a. s.58 suggests a duty of care will arise where a risk was foreseeable. Swinging loads of a crane when workers are in the building means it is foreseeable they will be hit. The probability of the harm arising is high given that a heavy load could obviously cause injury in the event of a collision. The likely seriousness of the harm is also significant and could include death. The burden of taking precautions is low, as all one has to do is satisfy oneself that there is no person in the pathway of the crane before moving loads.
b. s.5D says that one must look to both factual causation and scope of liability. As to the former- the only necessary condition of the farm (sic), at least in terms of immediate factual causation, was the operation of the crane. As to the former, it is clearly appropriate that a crane operator not expose persons in its path to risk of collision with the load.”

I accept the submission advanced by KMAR in its opening submission that those submissions may leave open a reliance by KMAR upon it being “an obvious risk”, but that is another question to which I will return later in my judgment. Further, the issue of vicarious liability dissipated by closing submissions.
Ultimately, I consider that counsel for Mr Bailey was correct to submit that, provided KMAR is not suffering procedural unfairness (and I will find there was none), it is too late in the proceedings to take these pleading points. In fact, no issue of procedural fairness was raised by KMAR. Nor did they result in an application for an adjournment in order to cure any unfairness or other remedies sought, in that respect.

It is well established that parties may expand on particulars orally in order to overcome a pleading issue. As Mason CJ and Gaudron J stated in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11 at 286-287:

“The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, for example, Browne v. Dunn, at p 76; Mount Oxide Mines, at pp 517-518.
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.”

In my view, the deficiencies in the pleadings, such as they are, were sufficiently cured by the opening submissions of Mr Bailey and his closing submissions. There was no further complaint in that respect.
By closing submissions, counsel for Mr Bailey defined the risk of harm as “[t]he risk of impact to truck drivers of the steel beams”, which has to be what KMAR described as the “integers of [the] (alleged) negligence”.
I note that in [10] and [11] of the FASOC pleaded:

“10.The accident would not have occurred but for the casual act of negligence of the employee of the defendant pleaded above in paragraph 7, and by reason the unsafe system of work pleaded in paragraph 7A.
Particulars
a. Failure to exercise reasonable care.
b. Placing the plaintiff in a position of peril.
c. Failure to keep a proper look out.
d. Failure to warn the plaintiff of the location of the beam.
e. Failure to operate the crane with due skill, care and attention.
f. Failure to take steps to avoid the beam hitting the plaintiff.
g. Failure to obtain confirmation from the plaintiff that it was safe to operate the crane.

11.Further, and or in the alternative to the matters pleaded and particularised in paragraph 9 above, the accident would not have occurred but for the failure of the defendant to provide a safe system of work to the plaintiff.
Particulars
a. Failure to exercise reasonable care.
b. Placing the plaintiff in a position of peril.
c. Failure to supervise, adequately or at all, workers at the site including
i. its own employees
ii. the plaintiff.

d. Failure to provide proper training.
e. Failure to provide proper plant and equipment.
f. Failure to comply with the Work Health and Safety Regulation 2017 including as to
i. Part 3.1 as to managing risks to health and safety;
ii. Part 3.2 as to general workplace management.

g. Further particulars to be provided in due course.
h. Failure to have safe procedures around safe zones, exclusion zones and interactions between driver and crane operator.
i. Failure to provide any or adequate training in the necessary elements of crane unloading.”

In opening submissions, Mr Robison referred to the deficiencies which Safework identified after the fact. In closing oral submissions, counsel for Mr Bailey made the following submissions:

“He was taken to the improvement notice, your Honour, which is at p 463. He accepted that those three dashes in the middle of the document reflected measures which were not in place as of the date of injury. They all involve, amongst other things, the provision of information regarding unloading and loading of items from the trucks. In terms of the transcripts, if I could turn from the documentary evidence to the transcript.”

Finally, I note that a submission was made as to the statement of particulars. I will return to the issues raised, in this respect, in considering the issue of damages. However, for present purposes I note KMAR’s written submissions, in this respect, were as follows:

“22. Prior to 17 June 2025, the plaintiff’s statement of particulars identified his injuries received as being an “[i]njury to right lower extremity”, consequential injuries to his “left lower extremity” and “lumbar spine” and “[p]sychological sequelae” (CB 1/2/12). The plaintiff’s evidence in the proceedings reflects those particulars in that the vast focus has been on physical injury, particularly of the “right lower extremity”.
23. On 17 June 2025, the plaintiff filed his amended statement of particulars (ASOP) (CB 1/10/63). The amendments include the specification that Mr Bailey “sustained the following injuries on 21 September 2018” (“Particulars of injuries received” at CB 1/10/65). That may be unremarkable in relation to injury of the “right lower extremity”, bit it sits uneasily with the consequential injuries, which presumably would have subsequently developed over time.
24. The ASOP also amended the psychological component in a specific way. As of 17 June 2025, the plaintiff asserted not psychological sequelae, but psychological injury. The relevant particular is in these terms (CB 1/10/65):
e. Psychological injury ~~sequelae,~~ including persistent depressive disorder, chronic post-traumatic stress disorder and complex regional pain syndrome.

25. The plaintiff should not be permitted to hedge its position with the precautionary use of “including” in particulars. The three bases on which psychological injury are asserted are “persistent depressive order”, “chronic post-traumatic stress disorder” (chronic-PTSD) and “complex regional pain syndrome” (CRPS).
26. Those three prongs of the psychological injury case are presumably advanced by reference to the evidence contained in the report dated 31 October 2024 of Dr Assad Saboor (Saboor Report) (CB 1/32/317). Of course, the Saboor Report predated the amendments made in the ASOP which articulated a psychological “injury” for the first time. In any event, as developed in the submissions below, the Court would place very limited weight on the Saboor Report.
27. The ASOP also expanded the “Particulars of continuing disabilities” into a list which extends across 2 pages (CB 1/10/65-6). Many of the particulars received limited attention at trial. The Court would be cautious to find many of the particulars established on the evidence. Numerous of the particulars could only be evidenced by broad statements in dated documents from several years ago.”

MR BAILEY’S EVIDENCE: CIRCUMSTANCES OF THE INCIDENT

For reasons which I will turn to later in this judgment, I have ultimately found that Mr Bailey was a witness of credit and Mr Learmonth was not. As such, I propose to address Mr Bailey’s evidence at the outset, noting that this is the version of events which I ultimately accept.
The following portion of this judgment consists of a summary of Mr Bailey’s evidence from the following sources:

His Evidentiary Statement dated 14 May 2021.

His Further Evidentiary Statement dated 13 December 2024 (“Further Evidentiary Statement (2024)”).

His Further Evidentiary Statement dated 16 June 2025 (“Further Evidentiary Statement (2025)”).

His oral evidence.

This summary excludes those parts of the factual background appearing at the commencement of this judgment.
I shall also address some of the particular challenges to Mr Bailey’s evidence by KMAR under this heading, although, part of that discussion also appears in the discussion of Mr Learmonth’s evidence below and some particular factual issues raised by KMAR.
The two bundles of beams were located side by side. Mr Learmonth looked at the documentation and checked that he could lift both bundles in one lift. However, the crane was not rated to lift the weight of both bundles.
The chains from the crane were “wrapped” on the beam “so it could be moved out slightly so that the middle of the other beam could be accessed". Mr Learmonth did that himself with Mr Bailey standing on the ground near the truck. They were facing each other, “basically looking in each other's eyes”.
Mr Learmonth "directed [Mr Bailey] to get on the back of the truck”. The beams could not be lifted “from [a] standing position… [on the ground]”. Mr Bailey was happy to comply with that direction as he had "done so many times in(sic) previously and it was just part of the job and it should have been exceptionally safe…”.
After Mr Bailey climbed onto the truck, Mr Learmonth was situated on the ground and Mr Bailey was situated on the tray of the truck. They were about a metre and a half apart.
Mr Bailey accessed the tray of the truck by yellow ladders depicted in photographs before the Court. I infer that the presence of ladders meant that access to the tray of the truck was contemplated.
As to the procedure for lifting loads during the unloading process, Mr Bailey gave the following evidence:

Mr Bailey thought that he and Mr Learmonth had discussed “verbal and hand signals” for the lifting of loads prior to the day of the incident.

As to the nature and type of signals which were applicable and safe in lifting, Mr Bailey gave the following evidence:

“Q. You can control it, is what you're saying. You can set the tones and you can say, "It's not safe, I'm not doing it."
A. If ‑ if you're the person with the, yeah, with the ‑ with the button that operates the crane, yes. Yes. You're the ‑ as the person operating with the button that operates the crane, you do not do anything whilst there is a chance ‑ whilst anyone is in the vicinity of the crane.
Q. If you're in the other position, you want to make sure it's very clear to them what the go signal is and what the safe sign is; correct?
A. Listen. This, international, "Go the hell up".
Q. I didn't actually know that.
A. Do this, means "go the hell down". If you ‑ if you can't ‑ if there's all sorts of noise, you do this, it means go up, right? That's not a matter of do that and go up, no ‑ no, this is people's ‑ people get injured. Okay, you do that, you don't go ‑ you're not going up. You do this, you go up. So there is a set ‑ I do not need to communicate with a ‑ with a operator if I'm operating as a dog and if somebody was operating for the ‑ as the dogman for me. I do not need him to communicate with them what the commands are, because they're set out by correct me if I'm wrong, by law. Is it law?”

There are elements of co-operation in the crane operation and the driver doing their roles.

Mr Bailey stated that, even if the communication for lifting had not been previously discussed with Mr Learmonth, Mr Learmonth was well aware that if you wanted him to go up, Mr Bailey would say “go up” or, if he wanted Mr Learmonth to go down, Mr Bailey would say “go down”. He could also say: “[go] north, south, east or west”.

Mr Bailey could not recall having discussions with Mr Learmonth on the day regarding any such communications as to lifting but stated that the terms of communications were “well accepted”.

During the attaching of the chains, Mr Bailey and Mr Learmonth were engaged in “chit chat”.
However, the “chit chat” ceased when the lift was to be undertaken. Mr Bailey’s evidence was:

“Q. There must be some element of co‑operation because the crane has to be positioned so that the chains can reach.
A. That's correct. So before you would do it ‑ before ‑ once the chains are hooked up, before you lift, you look up, you look at the ‑ you look at the load, and this is a point at which you can't be idly chit chatting. This point in ‑ I mean, you do it, right?
Q. No, I don't.
A. No, I'm saying in your job, you have points at which you have to be focused solely on the job and there's other points at which you can have some ‑ a bit of idle chit chat. Even if the job's still going on, yes? So this is a point at which there's no idle chit chat and you have to focus on the job at hand, you have to get it right. Okay…”

Mr Bailey further gave evidence, in this respect, as follows:

“Q. You were, as I understand it, carrying on casual conversation as this‑‑
A. That's correct. Like I said, this is now at a point where we're actually got to ‑ got to stop the conversation and we need to focus on the job. However, Mr Learmonth decided to take it upon himself while I'm squatted down in between, like I said before, the equivalent weight of two big four‑wheel drives in front of me two big four‑wheel drives behind me‑‑
Q. So it's dangerous.
A. So it's ‑ not while they're on the ground. While they're on the ‑ while they're still on the tray of the truck, not ‑ man, I could ‑ I could ‑ realistically, because they're, like I said before, they're sitting on timber, they're not sitting on steel‑‑
Q. A little bit higher?
A. No, no. Remember I explained to you the dunnage?
Q. The loose slats?
A. Yeah, the loose slats with the timber in there, right. I could basically get that truck, without it being ‑ and I'm not suggesting that I would, but I'm ‑ and I would suggest it would be dangerous, but you could basically get that truck and do donuts and they wouldn't move.”

During the unloading of the steel, Mr Learmonth operated the gantry crane.
The first lift that consisted of a bundle of pipes was uneventful.
Mr Bailey then moved the chains to the middle of the beam “that had been moved” and “wrapped the chains around it so it could be lifted”. This was done by Mr Learmonth lowering the chains sufficiently for the chains to be placed under the beams. There were two chains fixed in the middle to form a v shape. Mr Bailey had a “good sense how to do it”.
Mr Bailey stated that the chains held the beams by the use of a ‘C’ hook which Mr Bailey stated he could do “blind folded”. He squatted down to attach the chains.
Mr Bailey described this work as exceptionally safe. This was because the beams were immobile because of their own weight and attachment of the chains, if not under load, represented minimal risk.
He stood between the 2 stacks of beams. He said he was requested to do so to secure the chains for the lift.
In his Evidentiary Statement, Mr Bailey stated:

“As soon as I finished wrapping the chains, I stood up and was about to begin moving to a safe area away from the beam when all of a sudden, the beam began being lifted.
I quickly scrambled to get out of the way. I turned to get to the other side of the trailer which meant that I had to get up over the other beam and my left leg got up onto the beam, but my right leg became caught and was then crushed in between both beams, as the beam that was being lifted swung towards me. I recall that both of the beams subsequently crashed together at the ends.”

In his Further Evidentiary Statement (2025), Mr Bailey also stated:

“I refer to paragraph 32. I do not recall giving any indication that the load should be lifted. Nonetheless, saying “ok” (which I deny) is not a signal it is safe to lift. Voice signals should be clear and concise constituting a clear instruction to lift for example saying “lift” or “up”. It needs to be a word that is not used in another context and if there is any doubt, then the operator needs to wait and confirm that the load is to be lifted via clear verbal instructions or hand signals. This is especially necessary if the operator could not see the dogman (which was not the case in this incident). I recall that the crane used on this day was able to move in a north, south, east and west direction (not just up and down). As such, “ok” could not be considered a direction as there are many possibilities as to what movement is required. Directions such as “up” or “north” for example, would be required to be used for clarity.”

Mr Bailey was shown a text message (in Exhibit 17) which was in the following terms:

“On 21 -9 at around 115-130pm I was at kmar doyalson assisting to unload the semi trailer I drive there was two beams left the beams were around 12.5meters long 50cm tall 70 cm wide each lift being around 5 tonne we separated them at the rear of the trailer using the overhead crane which the kmar employee was operating I was connecting chains once separated we moved to the middle of the beams [I] had the beams we were lifting in front of me and another behind me I wrapped the chains around the beams however by the time I had stood up I saw the crane was staring to take the pressure and that the lift had begun with that I tried to get onto the beam behind me [I] had turned towards the back of the truck but the beam being lifted left the deck and swung into me l herd the beams BANG together at each end the back first then the front and the beam had swung into me twisting my right leg I felt my ankle twisting knee twisting.”

Mr Bailey did not confirm the text as his communication, but he stated it was reasonably accurate.

“Q. Then you stood up.
A. No. Here, and I would suggest this is very accurate, I haven't stood up. I'm in the process of standing up and I've ‑ it's in front of me, right, and I'm seeing the crane going up. And then, if you'll excuse the language, your Honour, shitting bricks.
Q. You didn't hear the mechanism, you just saw it?
A. That's correct.
Q. There was slack in the chains?
A. Not very much, no. I ‑ it was actually ‑ realistically, it could ‑ it would've been easier for me to connect the chains if there was a little bit more slack. So the chains were quite taut.
Q. You don't shout out "stop" or exclaim loudly or, "Hey, I'm"‑‑
A. I'm shitting bricks at the moment, mate, all I'm thinking is I need to get the hell out and dodge.
Q. You agree with me you didn't say anything audible?
A. I may have or I may not have, I can't actually ‑ I can't ‑ I can't testify whether I did or I didn't. I would lean towards the "I didn't", unless I actually said, "Oh, shit". This is the amount of time that I've got, I've got to make a split second decision: "Do I stand here and chat to old mate or do I get the hell out of the way?" And you don't have ‑ I'm not having the ‑ this is an unexpected ‑ it is exceptionally unexpected for it to start going up. So all I've done is shit myself and tried to get the hell out of the way.”

The beams were lifted vertically by the crane.
Mr Bailey gave evidence that he did not give a signal to lift the beams.
Mr Bailey stated:

“I wrapped the chains around the beam. And as I stood up, I saw that the beam was ‑ I could see the crane was going up. So I turned to my left. I'm not sure whether I said anything or not, but I know that there was a ‑ if you'll excuse the language ‑ "oh shit" moment in my head. And I just thought to myself, I need to get the hell out of dodge. So I turned to my left, I got my left foot up onto the beams that were behind me. However, I was still standing on my right leg, and the beam swung into my right leg and crushed my right leg between the pack that was stationary, and the pack that was being lifted. I do also recall that the beams, I heard banging. So the beams that were attached to the crane pivoted on my leg, and I heard the beams collide together down one end, and then the other end.”

On Mr Bailey’s evidence, Mr Learmonth did not wait for Mr Bailey to give a signal or at least move to a safe area before he lifted the beams.
Mr Bailey stated he was in excruciating pain, and an ambulance was called.
Mr Bailey stated:

“A. All I knew was that I was in trouble. I knew that there was a hell of a lot of pain, and I laid down on the truck, and there was quite a number of choice words. Not aimed at anyone, but just, you know.”

Mr Bailey recalled Mr Learmonth apologising.
Me Bailey stated that when he was in the ambulance, the ambulance officer told him that he had been out here at the same premises, a few months earlier to treat the owner who himself had an accident.
Mr Bailey also stated in his Further Evidentiary Statement (2025):

“I refer to paragraph 40 I recall seeing the beam being lifted and to get out of the way I had managed to get my left foot onto the beam behind me. There was bruising to the outside of my right leg, and the bone was crushed.”

As to the whereabouts of the steel beams swinging when they were lifted, Mr Bailey gave evidence in cross-examination as follows:

“Q. I think you alluded to it before when you were showing me with the pen, there is a possibility of swinging?
A. Well, there's always a possibility of swinging, but when I was showing you with the pen, I wasn't talking about an up and down motion.
Q. Right, I understand.
A. If the crane is positioned correctly, then there should be exceptionally small possibility of the ‑ of the load swinging sideways or lengthways.”

However, he also gave the following evidence:

“…So what should happen is that you wrap the chains around, you make sure that they're secure on the ‑ in this case, you stand up, you take a step backwards, you look at the load. You say, "Is it centred northwest over the load? Is it centred east south" ‑ northwest ‑ north‑south or east and west?
So in other words, is ‑ if it's attached down here, right, is the crane ‑ is the crane ‑ the hook of the crane on an angle? You can ‑ if the hook of the crane's on an angle, you don't lift, you move the crane like that so that it's lifting straight. It's not trying to ‑ because if you do this, it'll lift it off the ground, it'll swing.”

Mr Bailey gave evidence as to whether he could see Mr Learmonth during the preparatory stage and during the lift. He gave evidence that he could do so.
There was a "clear and unimpeded view" between both men. The only thing between Mr Bailey and Mr Learmonth was the beam which was about to be lifted. Mr Bailey stated in the Further Evidentiary Statement (2025):

“I refer to paragraph 30. I was always within clear view of Mr Learmonth. There was nothing obstructing his view of me or the load at any time. I recall engaging in pleasant chat while performing our work.”

The vision was equally good on the ground and from the bed of the truck. Mr Bailey gave evidence, in that respect, as follows:

“Q. Do you see that better from the ground or from the tray?
A. Either. Realistically, either, either, and I would suggest it would be ‑ I would say ‑ I would suggest that that is probably something that you would do in conjunction with the other person that you're working with…”

As Mr Bailey was scrambling to escape the steel beam he could see Mr Learmonth. His evidence, in that respect, was as follows:

“Q. Could you see Mr Learmonth when you were scrambling?
A. Yes. While I was squatted down, Mr ‑ Mr Learmonth, we were face to face. I'm squatting down on ‑ the beam's 50 centimetres tall. If you squat down and you've got something 50 centimetres tall in front of you, it ‑ your head is still above that.”

Mr Bailey said there were “some factory noises”, but communications were quite easily made.
As to Mr Learmonth’s evidence that Mr Bailey used the word “OK”, Mr Bailey stated:

“Q. Could you have used "okay" as part of the conversation you were having?
A. No. Oh, the part of the conversation ‑ the ongoing conversation? It's possible. However, I would deny saying "okay", but I can't categorically state whether "okay" was said or not. But it was ‑ it could've been part of the conversation that was ongoing, which was not ‑ which had nothing to do with the ‑ like I said, it was idle chit chat.
Q. But it could have been said.
A. Could've been said. Oh, well‑‑
Q. There hadn't been a conversation about specific verbal signals, had there?
A. Not at that ‑ like I said, there's ‑ there is ‑ it's already set out. Verbal ‑ verbal, visual, auditory signals are already clearly set out.”

It was suggested to Mr Bailey that he may have climbed off the truck or moved to a safe area at some stage during the unloading process.
As to the general proposition of coming off the truck bed, Mr Bailey gave the following evidence in cross-examination:

“Q. It would have been possible to get off the truck if you wanted to. Get the chains on, come down from the truck bed‑‑
A. I would suggest that that would've been probably a reasonable way to go about it. I would suggest that there isn't necessarily a need for it. However, there ‑ it could be a ‑ it could be a way to go about it. Considering there was a second lift to be done at the time, if you get down off the tray of the truck and then ‑ you ‑ you're going up and down‑‑
Q. It's inconvenient?
A. It's inconvenient and there's not necessarily, provided that all checks ‑ and again, this is ‑ this was part of Mr Learmonth's job. However, I would expect that he does his daily checks on his crane. It's part of regulation that every ‑ every day, that you inspect your chains for any damage, wear—"

As to the notion advanced by KMAR that Mr Bailey may have come off the truck to move to a safety area, Mr Bailey’s evidence in cross-examination was as follows:

“Q. As I understand your evidence, you also didn't have a discussion about a designated "I'm going to come off the truck, don't start anything until I come off the truck" or "don't start it till I'm in this particular area" with the designated safety‑‑
A. No. However, the ‑ the ‑ again, the rules of operation of a ‑ of a ‑ of a ‑ of a crane. I've personally done ‑ I couldn't tell you how many crane courses. I've done that many that it's like you reading law books, right? What ‑ they all blend into each other, right? The rule ‑ the rule of the operation of a crane is if there is anyone in danger, you do not operate the crane. If there's anyone in the vicinity, you do not operate the crane. If you feel that that person is any sort of danger, you ask them to remove themselves from the ‑ from the dangerous area. If they refuse to remove themselves from the dangerous area, nothing happens until they are out of the way. If you've got to call the police to move them out ‑ out of the way before you lift anything, you call the police and get them removed. Nothing happens until no one is in the vicinity.
Q. You can control it, is what you're saying. You can set the tones and you can say, "It's not safe, I'm not doing it."
A. If ‑ if you're the person with the, yeah, with the ‑ with the button that operates the crane, yes. Yes. You're the ‑ as the person operating with the button that operates the crane, you do not do anything whilst there is a chance ‑ whilst anyone is in the vicinity of the crane.”

It should be noted that it was never put to Mr Bailey that he was employed as a dogman. Nor did he suggest to he was.
Mr Bailey was asked whether he had seen a document prepared by MMM titled “Confidential Incident Report From” (“the Incident Report”). He indicated that he had not seen that form.
The form gives the impression that Mr Bailey had been interviewed for the purposes of preparing the report. One of those carrying on that investigation was Mr Haworth, the Managing Director of MMM and Haworth. It is unclear whether Mr Bailey did have contact with Mr Edwards, an employee of Haworth who managed the operation at Mayfield NSW.
Mr Bailey also indicated that he had contact with Mr Haworth but adjusted that answer to indicate he had contact with Mr Haworth at the hospital. It is clear that the various answers to questions in the Incident Report were entered by a person other than Mr Bailey and, on the balance of probabilities, I do not consider the answers to various questions there recorded were statements made by Mr Bailey and recorded by the authors.
Mr Bailey was also asked questions about a policy issued by MMM entitled “Policy for all staff working on back of trucks” (“the MMM Policy”). That policy was dated 15 October 2018 and accordingly was promulgated after the incident. In fact, the policy states: “due to the nature of the incident, clarification is required as to the process to be engaged by all personnel going forward”. That note immediately followed a specific reference to Mr Bailey and his injury as being the reason for the policy being updated.
The new entry to the policy was written in red in the following terms: “[t]his is the preferred process, MMM does not want anyone on the back of trucks, if it can be avoided!”
The policy operating before the incident as to the working on the back of trucks, which was retained after the incident, was as follows:

“1. Arrival at delivery address, wear PPE.
2. Communicate with unloader as to where to position vehicle
3. Park Truck, apply brakes, switch off
4. Have a conversation with unloader/receiver
1. Where load is on truck
2. How to be unloaded
3. Requirements from either parties
4. Discuss the process to unload
5. Can unloading be done from the ground”

Mr Bailey had not previously seen the policy document but did understand that there was a new policy which was the section marked in red on the document.
Mr Bailey was then asked whether the process identified in the document was one he would follow, notwithstanding the fact that he had not seen the document prior to the incident. That cross-examination was as follows:

“Q. When you were doing your work when you were doing it, this is not the process you would follow?
A. It's roughly the process. Depends on the job too a little bit. It depends on where you're going. So, in some instances, you might just unchain the load or part there of and point to it and go, "That's your stuff". Therefore, the rest of it is irrelevant, right? So, you get to point 1, okay? Down the bottom there, see in, "The unloading process", and then you're done. However, in other circumstances where your assistance is required or requested to unload the vehicle, then it's roughly the process, yeah.”

Despite receiving an answer that the MMM Policy which Mr Bailey thought was in place was not the one shown to the witness, Mr Bailey was pressed on the basis he knew that the policy operated at the time of the incident. There resulted in the following exchange in cross-examination:

“Q. I think the one that I've read.
A. I think no could be possibly misleading. Listen, whilst I was employed with Mr Hayworth, okay, I actually had to train some individuals, right? And that's roughly what I would've explained to them how to go about their job. So, whether it's technically a policy or whether it's my policy or ‑ but I think no is misleading and Mr Hayworth did provide training to those who needed it upon, you know, starting their job. Now, with my experience, I demonstrated to him my experience and he was quite confident that I knew what was going on.”

What then followed, in cross-examination, was predicated on a different basis, namely, that a process for working on trucks was in place as a result of the training and or experience referred to by Mr Bailey in the answer extracted immediately above. That cross-examination was as follows:

“Q. That process wasn't complied with on the day of the accident?
A. "Where is the load on the truck", I showed him the load. Look, "How is it to be unloaded?". I'd been there prior. I knew that it was getting unloaded with the crane. So, redundant. "Requirements for me, the parties". Well, Mr Learmonth asked me would I assist him and I agreed that I would assist him. "Discuss the process of unloading". Yeah, this is for you. We'll get rid of that off the truck first. Yep, agreed. So, yeah, roughly. Do I need to stand there and have a full hour conversation prior to unloading? We've all got other things to do, right?
Q. Did at least say where your safe area was?
A. No. There was no safe area.”

In Mr Bailey’s Evidentiary Statement, he stated:

“The general process is that once I had wrapped up the beam with the chains, I would move to a safe area on the back of my truck, and I would then give a verbal and hand signal. Hand signals were supplementary. The signal indicated that the beam could now be lifted.”

Mr Bailey gave evidence as to the respective obligations of himself and Mr Learmonth at the time of the incident. He stated, in his Further Evidentiary Statement (2025) as follows:

“The operator of the crane had the responsibility to ensure loads were lifted safely and to not operate the crane until all persons were clear of danger. This extended to requiring that if a person was in danger from the load, the crane would not be operated until the area was clear. In instances where there was danger, procedure dictated that the operator should request the individual remove themselves from the area. If the individual refused, then the load should not have been lifted until all persons were clear of danger. The responsibility described in this paragraph would fall upon the operator. Any instructions to lift the load by a dogman were merely a guide and should not be followed if the dogman was in the vicinity of the load - only once they were clear of any danger.”

In the same statement, Mr Bailey stated:

“…Mr Learmonth assumed control over the method of work in unloading the truck. Further, as the operator of the site, Mr Learmonth had responsibility to ensure all in attendance were in a state fit for work. If he believed I was unfit for work or unsafe in any way at the time (which I deny), then it was his responsibility to request me to remove myself from the site / refuse the delivery / ban me from the site and request a different driver.”

CREDIT FINDINGS

Legal Principles

In relation to credibility, I adopt the statement of principle in Liu v Lam [2024] NSWSC 1306 at [59] to [60]:

“[59] The assessment of credibility of a witness may be based upon whether the accounts of a witness is inherently probable or given against interest. It does not follow that a witness who has been found not to be honest or unreliable about one matter should necessarily be disbelieved about everything else: Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084 at [118] (O’Loughlin J). Nor does the disbelieving of a witness as to a particular proposition necessarily mean that the proposition has been proven: Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640; [1975] HCA 63 at 694.
[60] Further, as Basten JA observed in Sangha v Baxter [2009] NSWCA 78 (with whom Handley AJA agreed), considerable caution should be exercised in making global credibility findings. His Honour observed:
“[155] There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.
[156] Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].”

I have also taken into account the observations of Kunc J in Pavlis v Pavlis [2021] NSWSC 1117 (“Pavlis”) at [158] to [167], with which I broadly agree.
However, the principles set out by Kunc J in Pavlis are, of course, not principles of law to be applied on every occasion. Rather, they are matters stated to be derived and applied from particular cases based on the facts of those cases. Ultimately, it is up to the Court to assess the whole of the evidence presented, including, in that respect, issues concerning credit, and make its own findings based on that evidence.

Mr Bailey’s Credit

Overall, and based upon my observations of Mr Bailey and a detailed examination of his written and oral evidence, I have found Mr Bailey to be an honest and reliable witness, I consider his evidence to be candid, forthright and clear. I reach that conclusion notwithstanding a strenuous attack as to parts of his evidence which I will discuss below.

Introduction

Mr Bailey’s account of the circumstances giving rise to and of the incident in his Evidentiary Statements and oral evidence in chief were not, in substance, disturbed by cross-examination, in so far as he was, in fact, challenged. Whilst Mr Bailey’s evidence given in cross-examination may have occasionally displayed an overt expression of incredulity as to the questions asked, those reactions were not entirely unjustified.
In my view, Mr Bailey was a humble man of limited formal education. His way of responding to questions was, on occasion, to be engaged in a more bombastic response. My impression of Mr Bailey, in this respect, is directly contrary to KMAR’s submission that Mr Bailey was guarded and suspicious.
Mr Bailey’s credibility was challenged on his evidence of the impact of his injury and his incapacity, as well as his living circumstances after the incident. KMAR’s submissions, in that respect, were more detailed and require closer examination, which I undertake immediately below, although, I will ultimately conclude that KMAR’s credit attack failed both in that respect and in its employment to challenge Mr Bailey’s evidence as to the incident.

Central elements of KMAR’s credibility attack

KMAR’s submissions in relation to the credibility of Mr Bailey were, in summary, as follows:

A notable feature of Mr Bailey’s evidence was its vagueness and the many unexplained gaps. The unexplained failure by a party to give evidence, to call witnesses, to tender documents or other evidence or to produce particular material to an expert witness may in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case. KMAR relied on the comments of the majority judgment in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] to [64] in this regard.

The three evidentiary statements of Mr Bailey were notably vague, especially in so far as the statements referred to people who provided Mr Bailey with daily assistance relevant to the proof and quantum of his claim, and the breakdown of the relationship with his ex-partner, Karen. KMAR took particular issue with the fact that Mr Bailey either did not recall or did not disclose the surnames of Karen, Craig, Shane and Sheriee (who were persons referenced in his evidentiary statements), when “it is clear that [Mr Bailey] knew the surnames of the friends he referenced”.

In response to orders of Justice Chen dated 3 March 2024, Mr Bailey’s solicitors issued a letter dated 12 March 2025 setting out the location of where he had resided and the periods of time at which he had resided since 1 January 2022 (“the 12 March letter”). Mr Bailey did not include the address of Mr Shane Stagliar in this letter, despite accepting during cross-examination that he had spent time with Mr Stagliar in 2023 and 2024.

Given the absence of critical information, Mr Bailey has failed to meet his onus of proof. For example, Mr Bailey’s claim that a neighbour provided him food or assistance while at the Collie property cannot be sustained in the absence of details concerning the costs incurred by Mr Bailey or the name of the friend (although, it was indicated during cross-examination that the friend was Paula Leong).

The Court should infer that the evidence of each of Craig, Shane and Sheriee would not assist Mr Bailey, given that Mr Bailey provided no explanation about their absence as witnesses in circumstances where each of those persons were said to have provided Mr Bailey care relevant to his claims. The omission of addresses and information by Mr Bailey would also permit the Court to make more severe inferences, including about the extent and nature of Mr Bailey’s asserted homelessness.

In the absence of Mr Bailey’s cooperation, KMAR was unable to have Mr Bailey assessed by an occupational therapist in any home environment.

Mr Bailey’s evidence was guarded and suspicious. When Mr Bailey disliked a question, he would retort rather than answer, and when asked about inconsistencies between his evidence and what he had disclosed to various independent examiners, he was either dismissive or disagreed with aspects of what was written in those independent reports. In this regard, KMAR made particular reference to the evidence concerning Mr Bailey’s use of crutches as well as Mr Bailey’s failure to take up the saphenous nerve injection.

Ultimately, Mr Bailey’s reluctance to provide information, including during cross-examination, should impact the Court’s approach to his evidence, and the Court should not accept Mr Bailey’s evidence unless it was against his interest or corroborated by contemporaneous documents.

I do not accept KMAR’s broad contention that the Court should not accept any of Mr Bailey’s evidence unless it is against his interest or corroborated by contemporaneous documents. That conclusion is based upon my analysis of the premises for those contentions and the further consideration expressed immediately below.
While counsel for KMAR, Mr M Noakhtar, made reference to specific aspects of Mr Bailey’s evidence which, in his opinion, were contrary to contemporaneous accounts, as noted above, considerable caution should be exercised in making global credibility findings as sought by KMAR, and untruthfulness with respect to a particular matter should not lead to the conclusion that the entirety of the evidence (such as evidence relating to the incident) is untruthful: Sangha v Baxter [2009] NSWCA 78 at [155] (per Basten JA, with whom Handley AJA agreed).
Based on my overall assessment of Mr Bailey’s evidence, which derived, in part, from my close observations of him as a witness, I accept that certain aspects of Mr Bailey’s evidence lacked detail or clarity. However, where Mr Bailey’s evidence is said to demonstrate a lack of credit by reason of certain gaps in information or detail, in my view, Mr Bailey was (contrary to those submissions), neither evasive nor deliberately misleading. His difficulty recalling minutiae details or information was simply reflective of his memory, which was sometimes a bit cloudy. Mr Bailey was candid and frank in his recount and did his best to tell the truth and answer the questions put to him, which were often not clear, or had the capacity to mislead. No such deficiency of recollection was demonstrated with respect to his memory of the incident which is hardly surprising because of the dramatic nature of the incident.
I will assess then certain aspects of KMAR’s submissions as to credit based on Mr Bailey’s living circumstances for the relevant period and his incapacity, in detail, below.

Difficulty recalling surnames

KMAR took particular issue with the fact that Mr Bailey only identified persons by their first name, with the inference being that Mr Bailey was either deliberately concealing or omitting the surnames of persons who could have given evidence relevant to the proof and quantum of his claim.
However, the fact that some of those details, as was submitted by KMAR, were available in other documentary evidence, must be contrary to the suggestion that Mr Bailey was deliberately concealing that information. Further, there was no suggestion that at any time did KMAR submit a request for those details, despite having concerns that Mr Bailey may be deliberately concealing information since, at least, 14 May 2021 (the date of Mr Bailey’s Evidentiary Statement).

Failure to call witnesses

KMAR submitted that “Craig, Shane and Sheriee” are “each said to have provided [Mr Bailey] care, relevant to his claims” and “no explanation about their absence as witnesses” was provided by Mr Bailey. It was submitted that the Court should infer that their evidence would not assist Mr Bailey.
The principles discussed in Jones v Dunkel(1959) 101 CLR 298, [1959] HCA 8 are concerned with a party’s unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence.
In RHG Mortgage Limited v Ianni [2015] NSWCA 56 at [75] to [96] (per McColl JA, with whom Emmett JA and Sackville AJA agreed) the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.
I accept the submission made by counsel for Mr Bailey, that no aspect of Mr Bailey’s account of the need for domestic assistance was challenged, including no cross-examination in respect of Mr Bailey’s claim for domestic assistance and care. Hence, no inference with respect to the failure to call Mr Bailey’s friends may be made, in circumstances where the only evidence that could have been given by those persons, with respect to Mr Bailey’s claim, was in relation to domestic assistance and care. In those circumstances, no adverse inference should be drawn with respect to the failure to call evidence from ‘Craig’, ‘Shane’ and ‘Sheree’.

Failure to include Mr Stagliar’s address in the 12 March letter

The 12 March letter set out four different addresses where Mr Bailey had resided from 1 June 2022 to 12 March 2025. The 12 March letter was in response to an order of Justice Chen dated 2 March 2025, which directed that “[Mr Bailey] provide the defendants within 7 days the location of where he has resided and the periods of time at which he has resided since 1 January 2022 to date.”
KMAR took issue with the fact that Mr Bailey omitted Mr Stagljar’s address in the 12 March letter, despite the fact that Mr Bailey readily accepted having stayed at Mr Stagljar's address in 2023 and 2024.
Mr Bailey gave evidence, which I accept, that he was homeless, had no fixed address and lived between a number of different addresses across NSW. He was reliant on the “gratuity of…friends” and would “couch surf” between their houses. When he felt he had overstayed his welcome, he would move to another location. On the evidence before this Court, Mr Bailey identified at least six different addresses where he had resided temporarily since the breakdown of his relationship with his ex-partner Karen in or around August 2020.
In my view, it is not inconceivable that someone in Mr Bailey’s circumstances, that is, someone who is homeless and living between multiple different and temporary locations, would not recall the exact addresses where they have resided throughout a three-year period. KMAR’s attack on Mr Bailey’s credit, in this regard, is unwarranted.
Further, KMAR’s submission that the Court should be critical of the nature and extent of Mr Bailey’s homelessness is, on the evidence, unwarranted, and I do not accept it.

Mr Bailey would retort rather than answer questions

In support of its submission that Mr Bailey would retort rather than answer questions which he disliked, KMAR referenced the following extract of cross-examination:

“Q. There's no images in your material of inside the shipping container, is there?
A. Do you have photos of the inside of your house that I can see?
Q. I'm simply asking.
A. No, there's not. Or I don't believe so, no. It's not exactly something that I'm proud of.”

While KMAR’s contention is plainly a reference to the first answer which Mr Bailey gives, it ignores the fact that Mr Bailey immediately goes on to answer the question in very direct terms.
I accept that Mr Bailey occasionally became frustrated and responded to questions forcefully or, on limited occasions, defensively. However, in my observation, this was often in response to inflammatory or confusing questions, and in all circumstances, Mr Bailey ultimately, and in close proximity to the question asked, gave both direct and frank evidence. I do not agree with the submission that Mr Bailey’s evidence was evasive or non-responsive.
Another example, while not referenced by KMAR, is as follows:

“Q. You're not exaggerating your pain are you?
A. I was hit by your client with the equivalent of two four-wheel drives worth of weight. Swinging.
Q. Did you hear my question, Mr Bailey?
A. No, I'm not.”

Again, while Mr Bailey is initially defensive, this is immediately followed by a direct and frank answer to counsel’s question. Whilst the initial answer may deploy annoyance at the proposition, it was not intended to be evasive.

Mr Bailey was dismissive of inconsistencies

KMAR submitted that Mr Bailey was “dismissive” when asked about inconsistencies between his evidence and what was apparently reported to various independent examiners. KMAR referenced the following extract of Mr Bailey’s cross-examination:

“Q. And you told Ms Mullens that you had owned the Collie property before you were injured?
A. I don't - no, she must have misunderstood me if she said that.
Q. Can I ask you to look at page 292?
A. Okay.
Q. Could I ask you to read paragraph - looking at the numbers on the left, it's 4.4.
…
WITNESS: That's incorrect.
NOAKHTAR
Q. That's incorrect?
A. The last sentence of that is incorrect.
Q. You didn't say that to Ms Mullens?
A. That's incorrect.”

Paragraph 4.4 of the occupational therapy care report dated 5 July 2021 (“Ms Mullen’s 2021 report”), which appears under the heading “PRE-INJURY FAMILY, WORK AND LIVING ARRANGEMENT”, is as follows:

“He enjoyed spending time with family and friends, riding motorbikes, 4WDing, working on car and motorbike engines, boating and fishing. He owns a 1 acre property at Dubbo with a converted shipping container that he would stay in when he could get away. He would mow the property with a ride on mower and planned to renovate the 150 year old house there.”

It is entirely unclear how Mr Bailey’s response (as set out above) could be perceived as dismissive. In my view, Mr Bailey was communicating to counsel for KMAR that Ms Mullens must have misunderstood what he had communicated to her, and as such, was simply correcting an error in her report. The point that Mr Bailey was making was that he only acquired the property after his injury, which is factually correct.
KMAR also submitted that Mr Bailey told three different examiners that he was living in a shipping container during 2023, whereas his Further Evidentiary Statement (2024) indicated that after late 2022 he stayed there irregularly and the 12 March letter indicated that he had not stayed at the Collie property “for some time”. The inference which KMAR wished the Court to draw, was that Mr Bailey must have been lying about his living arrangements, either to independent examiners or in his evidentiary statement.
It was Mr Bailey’s evidence that he stayed “at the Collie property irregularly and sporadically, depending on which of my friends’ houses are available to me at the time”.
The joint report of Dr Mitchell, Dr Tyler and Dr Nohra dated 19 June 2023 (date of assessment: 4 April 2023) and the report of Dr Dalton dated 26 October 2023 (date of assessment: 15 August 2023) both refer to Mr Bailey’s “current living arrangement” or where he was “currently residing”. Hence, the fact that Mr Bailey may have been residing at the Collie property on 4 April and 15 August 2023, is not inconsistent with his evidence that he stayed there irregularly and sporadically.
The report of Dr Anthony Smith dated 16 November 2023 (date of examination: 2 November 2023) included the following details:

“DOCUMENTATION REVIEWED
The documentation which has been reviewed for the purposes of providing this report is as follows:
• Letter of instruction from Mills Oakley dated 20 October 2023.
This man was seen on 02 November 2023. He is 46 years old and right handed. He lives at 15 Bundemar Street, Collie, near Dubbo. He has lived there for some two years by himself. It is about one acre of land that he owns, and he lives in a shipping container. The house there is in ruin. He said he was injured on 21 October 2018.”

During cross-examination Mr Bailey rejected that he had told Dr Smith that he had lived at Collie for two years consecutively. I accept Mr Bailey’s evidence in this regard, noting that the report as to Mr Bailey’s living arrangements appears under the heading “documentation reviewed” and it is therefore plausible that the information as to Mr Bailey’s living arrangements may have been obtained from the letter of instruction, rather than Mr Bailey’s himself. In this regard, I note that Dr Smith specifically references having been told by Mr Bailey that he was injured on 21 October 2018, while the balance of the paragraph as to Mr Bailey’s living arrangements does not contain a similar statement.
Further, given the 12 March letter is dated 12 March 2025, Mr Bailey’s statement that he had not stayed at the Collie property “for some time” is not inconsistent with the fact that he may have stayed there at times during 2023 – being “some time” since 12 March 2025.

Evidence regarding Mr Baileys’ use of crutches

KMAR submitted that Mr Bailey’s evidence, that no medical person had ever told him not to use crutches, was inconsistent with Mr Bailey’s later cross-examination on the same point, as well as the contemporaneous documents of Axis Injury Management dated 7 June 2021 and 10 August 2021, and the report of Dr Harrington dated 23 July 2021.
Mr Bailey’s evidence during examination-in-chief, was as follows:

“Q. Did somebody recommend to you that you should use the crutches?
A. Dr Burton. And the physiotherapist.
Q. Can you recall the name or names of the physiotherapist?
A. One of them was Josh, but that was - he wasn't the one who originally recommended it. The original guy, I can't remember his name.
Q. Who paid for the services provided by Dr Burton?
A. Workers comp.
Q. Have you seen him recently?
A. No.
Q. Why not?
A. Because workers comp stopped me from seeing him, basically.
Q. Has any medical person ever told you not to do this?
A. No.”

Mr Bailey’s evidence during cross-examination, was as follows:

“Q. Yesterday you answered some question from your counsel about your crutches.
A. Yeah.
Q. Do you remember that? In the morning. Do you remember Axis Injury Management raising with you concerns about the long duration that you were utilising the knee brace and crutches?
A. I do recall being told that - nothing about the knee brace, but I do believe - do believe that I was told that if I continue to use crutches that it will destroy the rest of my body.”

In my view, there is a clear difference between a medical practitioner telling Mr Bailey not to use crutches and raising concerns with Mr Bailey as to his reliance on crutches. Hence, I do not consider there to be an inconsistency between Mr Bailey’s evidence-in-chief and later evidence given during cross-examination.
I also do not consider that the contemporaneous medical reports of Dr Harrington and Axis Injury Management express an unequivocal opinion or recommendation that Mr Bailey cease using crutches.
The report of Dr Harrington dated 23 July 2021 recommended that Mr Bailey concentrate on dispensing with crutches, noting that the use of crutches has become an ingrained way of life rather than a necessary mobility aid. Dr Harrington also reported that "[Mr Bailey] should participate in a strengthening program and dispense with his crutches however this is unlikely to affect the permanent impairment therefore he has reached maximum medical improvement for the purpose of assessment".
The Axis Injury Management report dated 7 June 2021 recommended further investigation around the use of a knee brace and crutches for weight bearing.
While it may be implicit that those medical practitioners were advising Mr Bailey that he should stop using crutches by expressing a concern with the continued use of crutches by Mr Bailey, in my view, Mr Bailey’s evidence that no one advised him to stop using crutches is neither unreliable nor deliberately dishonest. In my observation, Mr Bailey has most likely misunderstood the subtleness of the recommendations given by doctors, and as such, his evidence demonstrates a genuine confusion rather than a real inconsistency.

Evidence regarding the saphenous nerve injection

KMAR submitted that Mr Bailey’s course of conduct with regard to the saphenous nerve injection, namely, that Mr Bailey chose not to take up this treatment, may support various inferences being drawn about the extent of Mr Bailey’s pain. Plainly, the inference which KMAR sought the Court draw was that Mr Bailey must not have been in as much pain as he attested to if he refused a treatment which could have assisted.
KMAR also submitted that Mr Bailey’s position, that it was Dr Tame who insisted on the saphenous nerve injection being postponed, reflected Mr Bailey’s refusal to concede what was plain on the face of various letters from treating practitioners, presumably meaning, that it was Mr Bailey alone who decided not to undertake the saphenous nerve injection. It is useful, in this regard, to set out the letters of Dr Volschenka and Dr Tame:

Report of Dr Volschenka dated 19 February 2019:

"If he has persistent neuropathic pain in the saphenous nerve distribution in spite of physical rehabilitation and initiation of an antineuropathic medication then we would proceed with a pulsed radiofrequency neurotomy of his saphenous nerve to provide him a reduction in pain of between nine to fifteen months."

Report of Dr Tame dated 31 July 2019:

"Today we discussed procedural treatments that could be useful for neuropathic pain. The simplest treatment that might help reduce Justin's symptoms is a local anaesthetic and steroid injection around the saphenous nerve combined with a pulse radiofrequency treatment. Justin's neuropathic symptoms are clearly in a saphenous nerve distribution. The procedure could provide some relatively sustained improvements in neuropathic pain symptoms for Justin. We will consider proceeding this injection next time we meet.
…
Justin might benefit from a local injection to the saphenous nerve combined with pulse radiofrequency treatment. This very simple injection could potentially provide improvements in pain for an extended period. Justin may also wish to consider spinal cord stimulation therapy in the future if his neuropathic pain fails to improve with other strategies."

Report of Dr Tame dated 3 April 2020:

“Justin has ongoing neuropathic pain symptoms most likely related to the saphenous nerve. We have approval in place to proceed with a saphenous nerve injection and pulse radiofrequency treatment when Justin wishes to proceed. At this stage he is keen to hold off. He remains concerned about potential side effects and complications related to the procedure which whilst rare, certainly can occur.”

Report of Dr Tame dated 19 August 2020:

“Justin is planning on having nerve conduction studies in October. He is keen to have a review following his nerve conduction studies which I have arranged for him. At that time, we will consider proceeding with a saphenous nerve injection and pulsed radiofrequency treatment if Justin wishes.”

On the face of those documents, in particular the report of Dr Tame dated 3 April 2020, it is clear that Mr Bailey was concerned about certain side effects and complications of the saphenous nerve injection, which Dr Tame conceded were real concerns, despite those side effects and complications being rare.

Regular consultations with a psychologist at a frequency of once per month for the next 2 years at an average cost of $205.90 per consultation. The total cost was calculated as $4,941.60.

Regular consultations with a psychiatrist at a frequency of once per month for the next 2 years at an average cost of $385.00 per consultation. The total cost was calculated as $9,240.00.

Ongoing adherence with medications as prescribed at a cost of $50.00 per month for Mr Bailey’s life expectancy. The total cost was calculated as $10,104.42.

The sum of the figures listed above is $57,090.04. The SOD noted that the claim for $80,000.00 was a “buffer claim” in respect of future medical treatment as well as travel expenses.
KMAR’s position was that, if the report of Dr Saboor is accepted, damages for future out of pocket expenses should be $14,181.60. This position was set out in Exhibit 3 but contained no calculations or submissions in support of the figure. However, given that the cost of consultations with a psychologist and psychiatrist, when added together, equals $14,181.60, I accept that this is likely how KMAR arrived at this figure.
As I have noted above, as to future therapeutic treatments, Dr Negus recommended physiotherapy for a period of 6 to 12 weeks and Dr Bosanquet recommended 6 sessions with a “rehab provider”.
Given the findings made above with respect to the existence of ongoing nerve damage, which is unlikely to improve significantly, as well as Dr Saboor’s diagnosis and recommendations, I accept that Mr Bailey will require ongoing medical treatment as a result of the incident. I will address each claim, sequentially, below:

I accept that Mr Bailey will require regular appointments with his general practitioner. However, in my view, the claim for appointments every 4 weeks for Mr Bailey’s life expectancy is excessive. While Dr Saboor opined that Mr Bailey will require to see his general practitioner, he did not provide an opinion as to the frequency or length of time this should continue. Given that the longest duration of any ongoing future medical treatment is 5 years (for pain consultations with a pain specialist), I will make provision for regular appointments with the general practitioner for the same period, at a frequency of once a month. I note, in this regard, that it does appear (on the medical records before this Court) that Mr Bailey was visiting his general practitioner at least once a month. Damages in the amount of $5,340 will be awarded (60 sessions in total over 5 years at $89.00 per session).

I accept that Mr Bailey will require regular consultations with a pain specialist, and that in accordance with Dr Porteous’ report this should occur between two to four times a year in the long term. Damages in the amount of $3,000 will be awarded for twice yearly appointments with a pain specialist for the next 5 years.

Based on the joint orthopaedic report, I accept that Mr Bailey requires physiotherapy. However, I do not agree that the expert evidence supports the need for physiotherapy for the next 2 years. Rather, Dr Negus recommended one session of physiotherapy weekly for a maximum of 12 weeks, and similarly, the recommendation given by Dr Bosanquet was for a maximum of six sessions. Hence, damages in the amount of $1,017.60 will be awarded for the cost of physiotherapy (12 sessions at $84.80 per session). I also note, in passing, that one session of physiotherapy every 4 weeks for the next 2 years (i.e. 24 sessions in total) does not equate to a cost of $8,819.20, as claimed by counsel for Mr Bailey.

I accept that, on the evidence of Dr Saboor, Mr Bailey will need to see a psychologist on a regular basis and a psychiatrist on a monthly basis. Given that KMAR also accepted that these costs were accepted by them (in the event that Dr Saboor’s report was accepted), damages in the amount of $14,181.60 will be awarded for the cost of a psychologist and psychiatrist for the next 2 years.

I accept that Mr Bailey will require ongoing medications, for ongoing pain relief as well as a prescription for anti-depressants. However, in my view, the claim for ongoing medications for Mr Bailey’s life expectancy is excessive. In this regard, I note that while Dr Saboor did recommend the provision of anti-depressant medication, the claim for psychiatrist services is only for 2 years (as was recommended by Dr Saboor). As such, in my view, there is no reason for the provision of anti-depressant medication past this time period. Further, while Dr Porteous recommend ongoing pain relief “in the long term”, I do not consider this to mean for life. The same phrase “in the long term” was used by Dr Porteous to describe Mr Bailey’s need to see a pain specialist. In this context, Mr Bailey clearly interpreted “in the long term” to mean 5 years. Hence, I will make provision for ongoing medications for the same period. Damages in the amount of $3,000 will be awarded for ongoing medications (60 months at a cost of $50 per month).

Hence, the total amount payable for future out of pocket expenses will be $26,539.20. While counsel for Mr Bailey submitted that Mr Bailey should be awarded a “buffer” of approximately $23,000, no submissions were made to substantiate the reason for this buffer. I do not accept that this is an appropriate case for a buffer given the precision with which counsel for Mr Bailey has been able to calculate the future treatment expenses. There was no suggestion that the future treatment needs of Mr Bailey were difficult to assess with any certainty, and in my view, this is especially so given the time that has elapsed since the incident.

Future economic loss and superannuation

Mr Bailey claimed a total of $988,516.28 in respect of future economic loss and loss of superannuation. This figure was calculated as follows:

Loss of future income in the sum of $862,454.90 based on a retirement age of 67 years of age, being 19 years future loss of anticipated earnings less 15% for vicissitudes.

Loss of future superannuation in the sum of $126,162.38 based on 14.63% of Mr Bailey’s net loss of future earnings.

KMAR’s position was that damages for future economic loss and superannuation should be $100,000.00, based on a 10% loss of earning capacity.
In my view, Mr Bailey’s claim with respect to future economic loss and superannuation hinges on my determination of whether, in my view, Mr Bailey could undertake a type of work which conforms with the restrictions on his capacity.
In this respect, it is useful to set out some of the evidence that is relied upon as to Mr Bailey’s capacity to work:

Dr Smith and Dr Bosanquet both believed that Mr Bailey was fit to work, so long as he does not have to engage in repetitive kneeling or squatting, use of long or repetitive flights of stairs and ladders, or prolonged walking.

Dr Bosanquet further opined that the only suitable employment option for Mr Bailey would be sitting at a desk. He reported that Mr Bailey’s prognosis for returning to work in the future was poor.

Dr Negus believed that Mr Bailey would need support to get back to working.

Dr Harrington opined that while Mr Bailey is not fit for pre-injury duties, he did not identify a significant musculoskeletal injury which would cause a permanent incapacity for work.

Dr Porteous concluded that Mr Bailey’s injury resulted in him being incapacitated or unfit for any work, including that which he has training, expertise and qualifications in and that Mr Bailey was totally incapacitated for any work “now” and “in the long term”.

Whilst the joint orthopaedic report was produced in 2025, the other reports to which I have referred above were all produced in the period 2020 – 2024. As I have further identified, the reports sustained, on the balance of probabilities, that Mr Bailey continues to suffer nerve damage. There being no other form of future incapacity identified in the expert reports, the sole basis for finding future incapacity (underpinning future economic loss) is the fact of that nerve damage.
The difficulty for claims of total incapacity for Mr Bailey for the balance of his life expectancy are, in part, affected by that limitation. The reason for that is that there is no claim for Mr Bailey’s treatment for nerve pain extending beyond a period of 5 years. It is difficult to conceive then, how any benefit for future economic loss for Mr Bailey should extend beyond that period.
Further, while Dr Saboor was of the opinion that Mr Bailey was totally incapacitated for any type of gainful employment, including his pre-injury employment or any other employment, his recommendation for treatment was limited to “two years or longer”. I note that, on that basis, there was no claim for Mr Bailey’s psychological and psychiatric treatment extending beyond a period of 2 years. Hence, I consider that Dr Saboor’s opinion as to incapacity is not stated to be for Mr Bailey’s life expectancy but should be considered in the context of the other recommendations made as to Mr Bailey’s treatment for the next two years. In any event, it is difficult to conceive that Dr Saboor would be able to express a view as to incapacity beyond this time period.
There is a second and related consideration, and that is whether Mr Bailey would have a capacity in the future to engage in an administrative or sedentary role.
On the basis of the evidence, including the restrictions set out by Dr Smith and Dr Bosanquet, and the evidence of Dr Negus that Mr Bailey would need support to return to work, I accept that the only work for which Mr Bailey would have capacity in the future is an administrative or sedentary role. However, it is my impression that Mr Bailey would experience difficulties in adjusting to this type of work, for the following reasons:

Mr Bailey is not trained, qualified or experienced in this type of work.

Mr Bailey’s own evidence was that he was “not suitable for office work”. I do not accept that this demonstrated a disinclination to return to work but accept that this is the truth as to Mr Bailey’s honest belief as to whether he could hold down a job in this field.

However, it appears to me that there would be an opportunity for Mr Bailey to retrain for work other than his former duties of an administrative kind over the 5-year period I will allow for future economic loss.
I do not accept the submission made by counsel for Mr Bailey, that when one examines the evidence in context, there is no single job which Mr Bailey could actually perform in the long term, having regard to his occupational history and the functional limitations on his capacity if that submission were intended to convey that Mr Bailey was permanently incapacitated.
It follows, in my view, that Mr Bailey should have a sum for loss of future income and loss of future superannuation, calculated over a period of 5 years.
Hence, the total damages payable with respect to future economic loss will be $363,455, based upon $1,570.00 net per week multiplied by the 5% statutory multiplier for 5 years.
In his calculations, Mr Bailey allowed an amount of 15% for vicissitudes. I will make a deduction in the same way, resulting in damages being reduced to $308,936.75.
There should also be a provision for superannuation, calculated on the basis of 14.63% of Mr Bailey’s net loss of future earnings. That amount is $45,197.45.
The total sum for future economic loss and superannuation is $353,134.20.

Future domestic assistance and care

Mr Bailey claimed a total of $482,017.80 in respect of future domestic assistance and care.
Mr Bailey’s claim was based on Ms Mullen’s 2021 report and was particularised as follows:

$1,680.00 for an OT assessment.

Domestic assistance for 7.48 hours per week for Mr Bailey’s life expectancy at a cost of $52.00 per hour. The total cost was calculated as $340,573.38.

Outdoor assistance for 1.73 hours per week for Mr Bailey’s life expectancy at a cost of $75.00 per hour. The total cost was calculated as $113,609.10.

Car cleaning once a month for Mr Bailey’s life expectancy at a cost of $60.00 per month. The total cost was calculated as $12,092.04.

In addition, Mr Bailey claimed future domestic assistance and care costs in relation to the following equipment’s and aid which were recommended by Ms Mullen:

Electric recliner chair at an annual cost of $129.99.

Shower chair at an annual cost of $23.99.

Long handled sponge at an annual cost of $39.98.

Long handled easi-reacher at an annual cost of $21.66

Elbow crutches at an annual cost of $26.40.

Electric Mobility scooter at an annual cost of $479.80.

Robotic vacuum cleaner at an annual cost of $179.60.

Perch kitchen stool at an annual cost of $29.54.

Laundry trolley and basket at an annual cost of $4.00,

(collectively, “the equipment and aids”).

The cost of the equipment and aids was calculated for Mr Bailey’s life expectancy. The total cost was calculated as $15,743.28.
KMAR’s position was that damages for future domestic assistance and care should be nil.
On the basis of Ms Mullen’s 2021 report, I accept that the allowance proposed for the OT assessment, domestic assistance, outdoor assistance and car cleaning should be applied in assessing future domestic assistance and care, save that the benefit would be confined, having regard to my earlier assessments with respect to future economic loss, to a period of 5 years. Hence, the amounts will be as follows:

$1,680.00 for an OT assessment.

$90,044.24 for domestic assistance.

$30,037.13 for outdoor assistance.

$3,197.02 for car cleaning.

Further, I accept Ms Mullens estimate for equipment and aids, save for those estimates extending beyond 5 years and for elbow crutches.
I do not consider, on the basis of the medical evidence (including the joint orthopaedic report), that Mr Bailey requires elbow crutches on an ongoing basis. Rather, I accept that the use of crutches by Mr Bailey has become an ingrained way of life rather than a necessary mobility aid.
Hence, the amount of the equipment and aids, for a period of 5 years, will be $4,044.31.
The total damages payable to Mr Bailey for future domestic care and assistance will therefore be $129,002.70.

Non-economic loss

Mr Bailey claimed a total non-economic loss of $495,000.00, being 65% of the most extreme case in accordance with s 16(2) of the CLA.
KMAR’s position was that damages for non-economic loss should be $34,500.00, being 22% of the most extreme case. However, KMAR made no other submission to substantiate its position, in this respect.
In relation to non-economic loss, Mr Bailey made the following submissions:

Mr Bailey has suffered great difficulties and great decline in his qualify of life as a result of the physical and psychological pain caused by the incident. There has been a complete breakdown of what was his family position, and he is now effectively homeless. It was submitted that this “is a pretty grim picture, compared to the provider and family man that he was, when he was a hard-working truck driver”.

It was reported in the Dr Ting 2021 report that Mr Bailey now binges on alcohol, has gained weight and on the self-rating depression scale is in the extremely severe range for depression, moderate range for anxiety and severe range for stress. While those rating are not diagnostic, it was submitted that they are relevant to illustrate how Mr Bailey feels as a result of the incident.

Mr Bailey has developed consequential psychological injuries as a result of the incident, as diagnosed by Dr Saboor.

Mr Bailey also experiences ongoing anxiety that his knee is unstable and a fear that his knee will buckle or that he will fall over and get hurt again. Mr Bailey gave the following evidence, in this respect:

“Q. And how did you get from Springwood to the city?
A. By train.
Q. And what was that like?
A. Scary. Really, not the most fun thing I've ever done.
Q. What was scary about it?
A. The jostling of the train, I'm really scared that I'm going to fall over and get hurt again.
Q. What's your concern in relation to falling over?
A. Well I've fallen over a number of times. My knee gives out sometimes, and without warning, and I - even with the crutches, it's - like the trains aren't a - the train's moving, the train's jiggling around.
Q. How do you feel emotionally about those issues?
A. I feel like my manhood's been taken from me, to be honest.”

In the absence of any submissions to the contrary, I accept that Mr Bailey has suffered considerably in the aftermath of the incident and continues to suffer from the breakdown of his relationship, ongoing capacity issues, ongoing pain, and an inability to engage in certain activities which he enjoyed prior to the incident.
While I accept that some damages for non-economic loss should be awarded, I consider that the claim for 65% of the most extreme case is excessive. In my view, non-economic loss should be calculated at 30% of the most extreme case.

Contributory negligence

KMAR submitted that Mr Bailey contributed to the injury and loss, and the damages awarded should, therefore, be reduced by one third on the basis of contributory negligence. KMAR referred to the authority of De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 in this regard.
Counsel for Mr Bailey submitted that no sum should be deducted on the basis of contributory negligence.
KMAR relied upon the following particulars in pleading that Mr Bailey was contributory negligent:

At all material times, the beam was in the care, control and possession of Mr Bailey and/or his employer and/or the contracting party.

At all material times, Mr Bailey was in charge of indicating when it was safe to lift the beam.

At all material times, the beam was in Mr Bailey’s line of sight.

Failing to take due care in all the circumstances.

Failing to implement his own safety procedures which he considered reasonable.

Failing to exercise his duties as the person responsible for safety of workers on site.

Devising and implementing an unsafe system of work.

Failing to notify the crane operator he had not cleared the area.

Failing to take steps to ensure his own safety.

Failing to seek assistance when assistance was available.

Failing to have regard for the condition of the area

For the reasons which I have already given, I do not accept that there should be any reduction for contributory negligence.
I agree with the submission made by counsel for Mr Bailey, that given the mechanism of injury was Mr Learmonth operating the crane without warning, it is difficult to see how KMAR’s argument as to contributory negligence can be maintained.
For the reasons which I have already given in my discussion of Mr Learmonth’s credibility, I do not accept that:

Mr Bailey was in a rush to drive to Queensland and as a result hurried his work in a manner which impacted the safe unloading of the beams.

Mr Learmonth was not responsible for unloading deliveries and only operated the crane at the direction of Mr Bailey.

Mr Learmonth and Mr Bailey continued chatting to each other during the operation of the crane.

Mr Bailey gave Mr Learmonth a direction to lift the beams (whether by using the words “OK” or otherwise).

Rather, as I have found earlier in this judgment:

Mr Bailey was acting under Mr Learmonth’s direction; and

was required to stand between the beams in order to reach the chains and wrap the load; and

did not have time to take any action, before Mr Learmonth began operating the crane, which may have avoided the injury.

It follows that items (1), (2), (4), (5), (6), (8) and (10) of the above-mentioned summary of the particulars may be rejected on the above bases.
As to item (3) of the summary of particulars, the contention is irrelevant to the risk I have found on the cause of the incident. So to is the contention in items (7) and (9). As to item (8), I emphasise that it would have been impossible to provide the advice claimed in the item of the particular as the circumstances had not arisen to do so; the steel beams were safe when lying on the truck bed under their own weight.

In those circumstances, KMAR’s claim for contributory negligence cannot be upheld.

Apportionment

As earlier discussed, the risk in this matter was created by the fact that Mr Learmonth operated the crane without any warning or without giving Mr Bailey an opportunity to move to a safe area, despite knowing that Mr Bailey was crouched between the two bundles of steel.
Hence, in my view, there is nothing that Haworth could have done or precautions or policy it could have implemented, to guard against this specific risk. The mechanism of injury was, in fact, unavoidable on Haworth’s part given the unexpected and abrupt actions of Mr Learmonth.
For example, no amount of policy or safety precautions, including the use of safety and exclusion zones while operating machinery, would have prevented the incident occurring given the speed and manner with which Mr Learmonth operated the gantry crane, regardless of Mr Bailey’s location.
In the result, I find that there is no apportionment.
In this respect, I acknowledge the notice of position received by the Court on 4 September 2025, which stated that Haworth did not oppose the Court determining the apportionment of liability between Haworth and KMSR pursuant to s 151Z(2) of the WC Act, in the absence of the employer, and that Haworth did not consider that doing so would result in any procedural unfairness to it.
As earlier mentioned, KMAR and Haworth advised that the Court was not required to rule on the cross-claims bought by them as against each other. Mr Bailey did not wish to be heard in that respect.

CONCLUSION

As I have previously concluded, KMAR is liable for the acts of Mr Learmonth in negligence.
The total damages payable to Mr Bailey shall be based upon the following two classes:

Claims determined by the Court as follows:

$122,008.61 for past out of pocket expenses.

$26,539.20 for future out of pocket expenses.

$31,673.73 for past domestic care and assistance.

$576,796.00 for past economic loss and superannuation.

$241,200.00 for non-economic loss.

Claims determined by the Court, subject to verification of calculations by the parties:

$129,002.70 for future domestic care and assistance.

$353,134.20 for future economic loss and superannuation.

Should any party propose any variation to the calculations for future domestic care and assistance and future economic loss and superannuation in paragraph [420(2)], they should provide a short written submission accompanying the Short Minutes of Order I will direct be filed, demonstrating the basis for the alternative amount and the calculation of the same. It should be emphasised that this leave does not invite any submissions as to the merit of the particular claim, but only that the Court’s calculations of damages in accordance with the parameters set in this judgment are in all respects, accurate.
In the light of my decision in this matter, my preliminary view is that KMAR should pay Mr Bailey’s costs on an ordinary basis. If the parties accept that preliminary view, that should be reflected in the draft orders directed to be filed below. If not, the directions shall provide that the parties file their respective applications for costs and submissions as to costs within 7 days of the publication of this judgment.

ORDERS

The plaintiff is directed to file and serve Short Minutes of Order reflecting this judgment within 48 hours of the publication of this judgment.

**********

Endnotes

Decision last updated: 28 October 2025

Medium Neutral Citation:	Bailey v Kmar Engineering Pty Ltd [2025] NSWSC 1266
Hearing dates:	19, 20, 21 and 25 August 2025
Date of orders:	28 October 2025
Decision date:	28 October 2025
Jurisdiction:	Common Law
Before:	Walton J
Decision:	(1) The plaintiff is directed to file and serve Short Minutes of Order reflecting this judgment within 48 hours of the publication of this judgment.
Catchwords:	TORTS – negligence – liability for crush injury at work – whether occupier breached duty of care – vicarious liability – defendant failed to establish the defence of contributory negligence TORTS – negligence – identification of risk of harm – whether risk of injury was an obvious risk – precautions which a reasonable person would have taken in the circumstances – precautions including safe zones, exclusion zones and hand signals – whether adequate precautions taken DAMAGES – quantum of damages – out of pocket expenses – economic loss – non-economic loss and superannuation – domestic assistance and care – apportionment – s 151Z Workers Compensation Act 1987 (NSW)
Legislation Cited:	Civil Liability Act 2005 (NSW), ss 5B, 5C, 5D(1), 5F, 16(2), 33 Work Health and Safety Regulation 2017 Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	5 Boroughs NY Pty Ltd v State of Victoria; Roberts v State of Victoria [2021] VSC 785 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, [2009] HCA 48 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, [1990] HCA 11 Bird v DP (a pseudonym) [2024] HCA 41 Burton v Brooks [2011] NSWCA 175 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [2011] HCA 21 De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Garzo v Liverpool/Campbel/town Christian School [2012] NSWCA 151 Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Liu v Lam [2024] NSWSC 1306 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 Pavlis v Pavlis [2021] NSWSC 1117 Pavlis v Pavlis [2021] NSWSC 1117 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Sangha v Baxter [2009] NSWCA 78 Shoalhaven City Council v Pender [2013] NSWCA 210 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62 Vairy v Wyong Shore Council (2005) 223 CLR 422; [2005] HCA 62
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr Justin Bailey (Plaintiff) Kmar Engineering Pty Ltd (First Defendant) MMM LOGISTICS PTY LTD (Second Defendant) Haworth Transport Services Pty Ltd (Third Defendant)
Representation:	Counsel: L Robison with D Gray (Plaintiff) M Noakhtar (First Defendant) W Reynolds (Second Defendant) D Kelly (Third Defendant) Solicitors: Santone Lawyers (Plaintiff) Mills Oakley (First Defendant) Hall & Willcox (Second Defendant) Rankin Ellison Lawyers (Third Defendant)
File Number(s):	2021/71170
Publication restriction:	Nil