Barnes v Toll Transport Pty Ltd - [2011] TASSC 25

[2011] TASSC 25

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Toll Transport Pty Ltd [2011] TASSC 25

PARTIES:  BARNES, Christopher Roderick Manuel
  v
  TOLL TRANSPORT PTY LIMITED
  STEELBRO AUSTRALIA PTY LTD

FILE NO/S:  32/2003
DELIVERED ON:  27 May 2011
DELIVERED AT:  Hobart
HEARING DATE:  25, 26 and 27 October 2010
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts – The law of torts generally – Joint or several tortfeasors – Contribution – Apportionment – Third party proceedings – Reasonableness of settlement determined on what was known or ought to have been known at the time of settlement.

Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333; Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72; Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540, referred to.
Wrongs Act (Tas) 1954, ss3, 4(1).
Aust Dig Torts [12]

REPRESENTATION:

Counsel:
             Plaintiff:  Not applicable
             Defendant:  P L Jackson
             Third Party:  K E Read
Solicitors:
             Plaintiff:  Not applicable
             Defendant:  Page Seager
             Third Party:  Hugh Murray

Judgment Number: [2011] TASSC 25
Number of paragraphs: 131

Serial No 25/2011
File No 32/2003

CHRISTOPHER RODERICK MANUEL BARNES v TOLL TRANSPORT PTY LTD, STEELBRO AUSTRALIA PTY LTD

REASONS FOR JUDGMENT EVANS J

27 May 2011

The plaintiff, Christopher Barnes, "Barnes", lost the four fingers on his right hand save for half of his index finger in an accident, on 20 April 2000. The accident occurred in the course of his employment with the defendant, Toll Transport Pty Ltd, "Toll". He recovered workers compensation for his injuries from Toll. He also sued Toll for common law damages on the basis that his injuries had been caused by its breach of a duty of care it owed to him. Toll agreed to pay Barnes damages and costs in settlement of this claim.
Barnes' injuries were suffered as he was extending the leg of a stabiliser on a truck trailer known as a sidelifter. Toll had purchased the sidelifter from the third party, Steelbro Australia Pty Ltd, "Steelbro". Toll instituted third party proceedings against Steelbro seeking indemnification against or a contribution towards its liability to Barnes on the basis that his injuries were caused by Steelbro's breach of a duty of care it owed as the designer and supplier of the sidelifter. Steelbro denied liability.
This decision deals only with the third party proceedings. However, the issues raised require that attention be given to the responsibility of all three parties for the accident, and the reasonableness of Toll's settlement of Barnes' claim for common law damages.
Barnes was employed by Toll as a truck driver. On occasions in the course of his employment, he was required to use a sidelifter. A sidelifter is a trailer designed for carting shipping containers. It is fitted with cranes and stabilisers that can be used to lift containers to and from its tray. The sidelifter Barnes was using when injured was supplied to Toll by Steelbro on 7 April 1999. The delivery docket describes it as a "Steelbro MK6 Sidelifter Special Purpose Vehicle". At each end of the sidelifter's tray there is a mobile unit comprised of a crane alongside a stabiliser. Each crane and each stabiliser can be operated independently. When not in use each crane and stabiliser is stowed in a compact closed position.
The diagrams to which I hereafter refer are at the end of this decision. Diagram 1 shows a sidelifter with each crane and stabiliser in the stowed position.
Diagram 2 shows a sidelifter with its cranes and stabilisers extended in much the same manner as they would be when moving a container either way between the tray of the sidelifter and the ground. When Barnes was injured, the rear crane and stabiliser were not in the position in which they appear in this diagram, but were at the end of the tray.
Diagram 3 shows a container in the course of being moved between the tray of a sidelifter and the ground.
Diagram 4 details the separate parts of a stabiliser. Of particular relevance are the leg, leg housing and opening at the top of the leg housing.
Diagram 5 shows the position of the footplate, leg and leg housing when stowed.
Before operating the cranes to lift a container to or from the tray of a sidelifter, each stabiliser must be put into place. This involves tilting the leg housing of the stabiliser and extending the leg from the housing until the footplate is in the desired position relative to the tray. The sidelifter has an engine which operates independently from the engine of the truck. Each stabiliser and each crane can be individually controlled from a remote control box. Ordinarily this control box is attached to a belt around the waist of the person controlling the lift. The controller is usually the driver of the truck towing the sidelifter.
As can be seen in diagram 4, the lower or under side of the leg and the leg housing are straight but their upper or top sides are not. The top side of the leg tapers from a peak at point B down to point A and then continues to taper down to a lesser degree. The top of the leg housing tapers down from the edge of a metal plate across the top of the housing at point C to the rear of the housing at point D. The top of the leg housing is open from point C to point D. In result, as can be seen in diagram 5, when the leg is fully contracted there is a gap between the peak at the commencement of the taper in the leg at point B, and the metal edge across the top of the housing at point C. I will refer to this as the gap. This gap is approximately 15 centimetres wide (the internal width of the leg housing) and 50 centimetres long, the distance between point B and point C. The gap closes as the leg is extended from the housing. Anything intruding into the gap when the peak on the leg at point B passes under the metal edge at the top of the housing at point C is likely to be crushed. In the course of the hearing this metal edge was referred to as the pinch point. I will on occasions do the same.

The accident

On the day of Barnes' accident, a container, 40 feet in length, was on the sidelifter attached to his truck. It was the sixth container lift he had performed that day in the course of moving containers between the Launceston depots of Amcor and Toll. He had positioned the sidelifter alongside the empty tray of a flat bed railway wagon ("the first railway wagon") to which the container on the sidelifter was to be moved. Another railway wagon ("the second railway wagon") was attached to the rear of the first railway wagon. A container was on the second wagon. The rear of the container to be moved from the sidelifter was basically in line with the rear of the first railway wagon. This was because the container was to be moved to a position on that wagon from where it could be secured to the wagon by devices referred to as twist locks.
In order to move the container from the sidelifter it was necessary to stabilise the sidelifter. This was done by extending each stabiliser leg the maximum possible distance from the tray of the sidelifter. The rear leg was extended to the ground between the two railway wagons. The front leg was extended onto the tray of the adjoining railway wagon. The railway wagons were connected to each other by a tow hitch, and a brake line ran between them. It was accordingly necessary to manoeuvre the rear leg and footplate as far as possible under the tow hitch and brake line without damaging them or either wagon. The first railway wagon being 60 feet in length, was longer than the combined length of the truck and sidelifter that were alongside it. In result, when Barnes alighted from the driver's side door of the truck he stepped straight onto the surface of the tray of the first railway wagon, the surface of which was in good condition. In order to position the rear stabiliser of the sidelifter Barnes walked along that wagon to a position about 300 millimetres or a foot from its rear end near the stabiliser. From this position he could see down between the railway wagons and ensure that the leg and footplate were moved into place without causing damage. Before starting the engine of the stabiliser Barnes had strapped the remote control to his waist. He used a joystick on the left side of the remote with his left hand to manoeuvre the stabiliser. He did not need to use his right hand, save for steadying the remote. Having tilted the leg housing, he began extending the leg. As the leg extended the gap at the top of the housing closed. Barnes' right fingers were in that gap when it closed. They were crushed.
In a witness statement signed by Barnes on 5 April 2006, he acknowledged that it was common sense that it would be risky to grab the stabiliser when it was operating, but said that he only grabbed it out of instinct to prevent himself from falling. He said his foot had slipped, he had lost balance and he had instinctively reached out and grabbed the stabiliser with his right hand when the gap on top of the leg housing was about level with his hips. As to slipping, he said he guessed that there might have been a small rock under the sole of his boot, and said there was some clay on his boots. In summary, he said he slipped because of dirty boots and possibly a stone caught in a boot. Barnes did not support this explanation for the presence of his fingers in the leg housing gap when he gave evidence in the third party proceedings. He said that the last thing he recalled before his injury was tilting the stabiliser and getting it ready to position the leg between the two railway wagons and that his next recall was of reversing the leg in order to free his hand. He said he had no recall of losing balance or falling, he had not had any difficulty maintaining his footing, the surface of the tray of the wagon was in good condition and he never got into his truck with dirty boots. He said that during normal operations of the stabiliser there was no reason for him to put his hand on it.
Photographs taken of the sidelifter on the day of Barnes' accident show the outer side of the extended front stabiliser leg. The decal, a copy of which is diagram 6, is affixed to the upper end of that leg. A photograph taken a month later of the other side of the extended rear stabiliser leg shows the same decal in much the same position. The decal depicts a hand with severed fingers. A stabiliser is a powerful piece of moving machinery. The decal is a visual warning to keep hands clear of the stabiliser. In the course of the evidence it was suggested that the decal in question was not affixed to the rear stabiliser leg on the day of Barnes' accident. I am satisfied that it was. In any event, I am satisfied that it was obvious to Barnes that his hand would be crushed if placed in the gap on top of the leg housing as the leg was extended. There is no suggestion that he deliberately flouted the warning contained in the decal or injured himself deliberately, and I am in no doubt that he did not do so. I conclude that in the course of extending the leg, Barnes, without thinking, placed his hand on the leg housing in a position where his fingers entered the gap and that it was this inadvertence that brought about his injuries.

The settlement of Barnes' claim against Toll

Barnes' claim against Toll was advanced in tort on the basis that his injuries were caused by Toll's breach of its duty of care to him. Toll owed Barnes a duty to take reasonable care not to expose him to unnecessary risks of injury; Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18, at 25. In his statement of claim Barnes provided particulars of 17 asserted breaches of Toll's duty to him. In substance, the first two asserted breaches were that Toll had failed to cover the gap in the leg housing
If the risk that the operator of a sidelifter might be injured in the manner in which Barnes was injured was foreseeable and the magnitude of that risk, its degree of probability and the ease of remedying it were such that it was reasonable to take steps to avoid it, then Toll was liable to Barnes. The risk posed by the leg housing gap was overcome a short time subsequent to Barnes' injury by enclosing the top of the housing on each unit with an appropriately configured steel plate attached by ten bolts. The estimated cost of doing so is $809 per unit. Plainly this was a reasonable step to take in order to alleviate the risk. Steelbro does not suggest otherwise, but does dispute that the risk was foreseeable.
Barnes' claim was settled by way of a release dated 22 May 2007, "the Release". Pursuant to the Release Toll did not admit liability to Barnes, but the parties agreed that his claim would be settled by Toll paying Barnes $300,000 plus costs, in addition to payments that had been made to him or in his interests under the Workers Rehabilitation and Compensation Act 1988.

Issues

Steelbro was not a party to the Release and is not bound by it. Accordingly, a number of issues referable to Barnes' claim against Toll remain open in the third party proceedings brought by Toll against Steelbro.
The following provisions of the Wrongs Act 1954 are relevant to the third party proceedings.
"3 Proceedings against, and contribution between, wrongdoers
(1) Where damage is suffered by a person as the result of a wrongful act –
…
(c) a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage … ;
(d) a person may recover contribution or indemnity from another person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage by settling with the person by whom the damage was suffered and thereafter commencing or continuing an action against the other person, in which case the first-mentioned person shall satisfy the court that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.
…
(2) In proceedings for contribution under this section, the amount of the contribution that is recoverable from a person shall be such amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage...
…
4 Apportionment of liability in case of contributory negligence
(1) Where a person suffers damage as the result partly of that person's wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage ..."
Consistent with these provisions and in consequence of Steelbro's denial of liability the following issues are raised.
(1)Was Toll liable to Barnes for damage suffered by him as a result of Toll's wrongful act, that is, an act or omission that gave rise to a liability in tort by Toll to Barnes? See s2, the definition of "wrongful act", and s3(1)(c).
(2)Has Toll satisfied the Court that the amount of its settlement with Barnes was reasonable? The determination of this issue raises subsidiary issues about Barnes' contributory negligence and the quantum of his damages. If the amount of the settlement was excessive, the Court may fix the amount at which the claim should have been settled. See s3(1)(d).
(3)Would Steelbro have been liable to Barnes in respect of the same damage had it been sued by him at the time when the cause of action arose? See s3(1)(c).
(4)If (1), (2) and (3) are established, what contribution by Steelbro is just and equitable having regard to the extent of its responsibility for the damage? See s3(2).
I note that even in the absence of s3(1)(d), the fact that Barnes' claim was settled would not bar Toll from pursuing third party proceedings against Steelbro. This is because the meaning of the word "liable" when first used in the Wrongs Act (Tas), s3(1)(c), is wide enough to cover a person's liability pursuant to a settlement with a plaintiff made without admission of liability, which is the nature of the settlement between Barnes and Toll in this case, see Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 at 657, 659 and 661 – 662.

The red area

Barnes was trained to use the sidelifter for the task he was performing by a co-employee, Neil Richardson. He and another co-employee, William Robinson, had been trained in the use of the sidelifter by a representative from Steelbro, Robert McIntyre. As part of their training they had been shown a manual prepared by Steelbro titled "Operator Training Manual" and that Manual was provided to Toll.
The Manual included a copy of a decal affixed to the side of the sidelifter. The decal includes a direction not to enter the red shaded area depicted on it while the motor is running. The decal also directs that the operator ensure that people remain clear of the yellow shaded area depicted on it during operation. Diagram 7 is a copy of the decal, save that in order to identify and distinguish its red and yellow shaded areas I have added crosshatching to the red shaded area. The yellow shaded area is the total hatched rectangular area. The red shaded area, "the red area", is the crosshatched rectangle in the upper centre of the yellow shaded area. I will refer to this decal as "the Warning".
Diagram 7 depicts a container alongside a sidelifter. Diagram 8 is based on diagram 7, but has been altered so as to roughly illustrate the situation at the time of the Barnes accident. The alterations to diagram 8 involve: omitting the measurements, omitting the hatching of the yellow area and the crosshatching of the red area, placing the container on the tray of the sidelifter, and adding the hatched outline of two railway wagons. I have marked, with an X, the approximate position where Barnes was standing on the first railway wagon at the time of his accident. At that time the rear crane and stabiliser and the rear of the container on the sidelifter were not in the position in which they appear in this diagram but were at the rear end of the tray of the sidelifter. As depicted, the rear of the container was aligned with the rear of the first railway wagon.

The dispute as to Toll's liability to Barnes

Toll says that it was liable to Barnes as it breached its duty of care to him by exposing him to the risk of a crushing injury in the leg housing gap and that this risk was foreseeable. Counsel for Steelbro disputes Toll's liability to Barnes on this basis as he contends that this risk was not foreseeable. He says that Toll was liable to Barnes in consequence of breaches unrelated to its failure to take steps to cover the leg housing gap. He contends that Toll's liability to Barnes arises from failures with regard to safety officers, training and enforcing compliance with the warning that during the operation of the sidelifter the operator should not enter the red area. Barnes was within that area when he was injured. These contentions need to be assessed against the background of the pleadings.
In its defence of Barnes' statement of claim Toll pleaded that his injuries were caused or alternatively contributed to by his own negligence in that he:
"(a)failed to keep sufficiently clear of the outrigger when it was being operated;
(b)failed to take any or any adequate regard to the warning shown on the outrigger of the dangers created during its operation;
(c)put his hand on or near the outrigger when it was being operated when he knew or ought to have known from his own knowledge and experience that it was unsafe for him to do so."

In response to a request for further and better particulars of the above particulars, Toll pleaded:
"1The warning consisted of a sticker located on the rear surface of the outrigger leg. The content of the warning consisted of a diagram depicting a hand with severed fingers inside a red triangle on a white background."
Diagram 6 is a copy of the abovementioned sticker.
In its statement of claim against Steelbro in the third party proceedings, Toll pleaded:
"The design, manufacture and/or construction of the said sidelifter was defective, inadequate or unsafe in that:
a     As the stabiliser legs are hydraulically extended an exposed aperture develops between the tapered outer surface of the upper section of the leg and the inner surface of the lower or sleeve section of the leg. As extension continues, the aperture closes as the inner surface of the lower section of the leg occludes with the outer surface of the upper section of the leg thereby creating a risk of injury
b     No guard or other device is fitted to the stabiliser legs such as would prevent an injury of the type alleged to have been sustained by Barnes as hereinafter set out.
c     No or no adequate warning label or similar notice was affixed to the stabiliser legs at or near the location of the said aperture so as to warn of the risk of injury either generally or of the type alleged to have been sustained by Barnes as hereinafter set out."
In Steelbro's defence to Toll's statement of claim, Steelbro pleaded that if it was negligent, which it denied, Toll was negligent and Barnes was contributorily negligent. The particulars of these pleas being:
Particulars of negligence of Toll
(a)       …
(b)      Failing to properly instruct Barnes.
(c)       Failing to properly train Barnes.
(d)      Filing to provide Barnes with the Operation Manual for the equipment.
(e)       Failing to supervise Barnes
(f)       Failing to fit a guard over the opening in the outer sleeve of the stabiliser leg.
(g)       Failed to cease to use the sidelifter.
(h)      Failed to contact Steelbro in respect of any danger presented by the use of the stabiliser legs.
[Particulars (f) (g) and (h) were added during the hearing]

Particulars of contributory negligence of Barnes
(a)       Failing to stand clear of the equipment.
(b)      Failing to follow instructions in the Operation Manual for the equipment.
(c)       Standing on a rail wagon while operating the equipment.
(d)      Touching the equipment during the course of its operation.
(e)       Failing to observe the warning signs on the equipment.
(f)       Failing to keep his hands clear of the equipment.

In response to a request for particulars of the above pleading, Steelbro, on 13 October 2008, delivered further and better particulars that included the following:
"1The plaintiff failed to follow the instructions in the operations manual to keep out of the operating area of the side-lifer when it was in use."
This plea is the first specific reference to the Warning contained in the decal depicted in diagram 7: "Do not enter the red shaded area while the motor is running". It is of note that the further and better particulars that contain this plea were not delivered until after Toll's settlement of Barnes' claim. So, in terms of the pleadings, it was not until eight years after Barnes' accident that it was first specifically asserted that this Warning should be construed as requiring that an operator not stand in the red area when positioning a stabiliser leg. There is nothing in the witness statement taken from Barnes dated 5 April 2006 to indicate that prior to him making the statement it had ever been suggested to him that being where he was when he was injured was prohibited by the Warning. His statement makes no reference to the Warning.
Counsel for Steelbro contends that asserted failures by Toll with regard to safety officers, training and enforcing compliance with the Warning go to the core of Barnes' accident. The significance, from Steelbro's point of view, of these bases for Toll's liability to Barnes are that, if established, it can be contended that they are breaches for which Toll bears sole responsibility. The same contention is unlikely to succeed in relation to a finding that Barnes' injuries resulted from Toll's failure to address the foreseeable risk of Barnes' fingers being crushed in the leg housing gap. In broad terms, it can be said that if that risk was foreseeable to Toll, it was also foreseeable by Steelbro.

Evidence relevant to particular issues

In addressing the issues, a distinction is to be drawn between evidence of what Toll and its legal advisers knew, or ought to have known, at the time of the Release, and the evidence at large. The assessment of the reasonableness of a settlement is based on that which was known, or ought reasonably to have been known at the time of the settlement. In Saccardo Constructions Pty Ltd v Gammon (No 2) (1994) 63 SASR 333, King CJ at 336, agreed with by Millhouse J, said the following with respect to a claim for contribution subsequent to the entry of a consent judgment. What he said is equally applicable to a claim for contribution subsequent to an agreement to settle a claim:
"Certain propositions as to the law applicable where a defendant seeks to recover contribution towards its liability on a consent judgment to which the third party did not consent, may be deduced from those authorities:
1The test as to whether the defendant can recover on the basis of the full amount of the consent judgment is the reasonableness of the settlement.
2There is no presumption of law that the settlement was reasonable and the onus is on the defendant seeking contribution to prove in the proceedings against the third party, the reasonableness of the settlement.
3The fact of the settlement is some evidence of its reasonableness and the defendant is not in all circumstances required to call witnesses to establish that the amount paid was reasonable.
4The circumstances in which the settlement was arrived at and any proper inferences therefrom may be evidence of the reasonableness of the same.
As the issue in the proceedings against the third party is the reasonableness of the settlement, it seems to me to follow that it must be assessed in the light of the facts which were known or ought to have been known by him and his legal representatives at the time of the settlement."
As to the assessment of the reasonableness of a settlement in a different but analogous context, see Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603, Brennan CJ, par[7], and Hayne J, pars[129] – [131].
Counsel for Toll and counsel for Steelbro have approached these proceedings on the basis that it is open to Steelbro to contend that the amount of the settlement was not reasonable as it failed to reflect any allowance for Barnes' contributory negligence. A similar approach was taken in Dowthwaite Holdings Pty Ltd v Saliba [2006] WASCA 72, McLure JA, at par[90], and see also Pullin JA, at pars[109], [129] and [133], and Murray AJA, at pars[145] – [150]. This approach is also consistent with the dissenting decision of Jenkins J in Woolworths (WA) Pty Ltd v Berkeley Challenge Pty Ltd (2004) 28 WAR 540 at pars[61] – [65], but inconsistent with the decision in that case of Murray J at par[37], agreed with by Malcolm CJ at par[2].
The decision in Saccardo Constructions Pty Ltd v Gammon (No 2) (supra) relates to the then titled Wrongs Act 1936 (SA), s25(1)(c), and s26. The decisions in Woolworths (supra) and Dowthwaite (supra) relate to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s7(1)(c) and (2). An earlier relevant High Court decision is Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212 – 213, which relates to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s5(1)(c) and (2). Whilst the statutory provisions to which those decisions relate are to the same effect as the Wrongs Act (Tas), s3(1)(c) and (2), the statutes referred to do not contain a provision similar to the Wrongs Act (Tas), s3(1)(d). So whilst those decisions are authoritative in relation to the Wrongs Act (Tas), s3(1)(c) and (2), they do not address s3(1)(d). Nonetheless, insofar as Barnes' contributory negligence and the quantum of his damages are relevant to the question of what is "just and equitable" for the purposes of the Wrongs Act (Tas), s3(2), and the question of whether "the amount of the settlement was reasonable" for the purposes of that Act, s3(1)(d), I am satisfied that I should address these matters in the light of what Toll and its legal representatives knew or ought to have known at the time of Toll's settlement with Barnes. The calculation of the amount of Toll's liability to Barnes takes into account the workers compensation Toll paid; see the Workers Rehabilitation and Compensation Act, s133. Similarly, the calculation of Toll's claim against Steelbro takes into account those payments. The parties have referred to that Act, s134, which deals with the entitlement of an employer to recover a contribution or indemnity for workers compensation paid referable to a worker from a third party liable to pay the worker damages in respect of the relevant injuries. It seems to me that regardless of that Act, s134, such entitlement as Toll can establish against Steelbro under the provision of the Wrongs Act must take into account those workers compensation payments. Accordingly, I can see no reason for taking a different approach to those payments than the approach that I have said I will take to the other aspects of the claim.
The issue as to whether Steelbro would have been liable to Barnes had it been sued by him when the cause of action arose is determined on the evidence at large. Similarly, if that issue is determined against Steelbro, the determination of what its just and equitable contribution should be is determined on the evidence at large, save for the determination of the reasonableness of the amount of Toll's settlement with Barnes. As already explained, the reasonableness of the amount of that settlement is determined on the basis of what Toll and its legal advisers knew, or ought to have known, at the time of the settlement.

Training in the use of a sidelifter

When Barnes was injured he was preparing to move the container from the tray of the sidelifter to the first railway wagon in the manner in which he had been trained to carry out that task. As mentioned, he had been so trained by a co-employee, Neil Richardson, who together with William Robinson were the two employees at Toll who most regularly used sidelifters.
The evidence of Mr Robinson included the following. His experience in the use of sidelifters began in about 1998 when he was employed in Launceston by TNT Seafast, which became Toll. At the outset he was initially given no training in operating a sidelifter as it was a most straightforward machine and it was just a matter of watching someone and then doing the same. The sidelifter he initially operated had manual controls that were attached to its driver's side near the rear back wheels. This was a dangerous system because of the position where the operator was required to stand in order to use the manual controls. Toll also had two sidelifters at Bell Bay which were controlled from a control panel connected to the vehicle by a cable, a tethered system. He never operated those sidelifters as they were permanently stationed at Bell Bay. He used the first sidelifter mentioned until a new one was purchased by Toll in April 1999. This is the sidelifter that Barnes was using when injured. The new sidelifter could lift 40 foot containers, whilst the former sidelifter could only lift 20 foot containers, and the new sidelifter was operated via a remote control box. Apart from these differences, the new sidelifter and the former sidelifter were operated in the same manner.
Mr Robinson said that he and Neil Richardson received approximately half a day's training in the use of the new sidelifter from a representative of Steelbro, Robert McIntyre, on 16 April 1999. That training involved moving containers between the sidelifter and the ground, but did not involve moving containers between the sidelifter and a railway wagon. He did not receive training in relation to railway wagons. In the course of the training session Mr McIntyre took Mr Robinson and Mr Richardson through the Manual provided to Toll by Steelbro. Mr Robinson and Mr Richardson also attended a similar training session for Toll employees who operated sidelifters at Bell Bay. He could not recall whether the Bell Bay session occurred before or after Barnes' accident.
Mr Robinson's evidence about the procedure he followed when preparing to move a container from the tray of a sidelifter to the tray of a railway wagon was to the effect that he used precisely the same procedure as that adopted by Barnes on the day of his accident. Mr Robinson said that when manoeuvring the rear stabiliser leg between railway wagons he always stood right at the rear end of the wagon as it was critically important to see what was happening between the wagons. He had observed Neil Richardson perform the same operation in exactly the same manner. Neither Mr McIntyre nor anyone else from Steelbro had told Mr Robinson not to perform the operation from that position or in that manner, and he had not found anything in the Manual to suggest that he should not do so. Mr Robinson had continued to carry out transfers between a sidelifter and a railway wagon for a year or so following the Barnes accident. During this period he had not changed the position from which, or manner in which he carried out that operation. At the time he generally worked full-time on sidelifters. The duration of the particular job performed by Toll that had involved using the new sidelifter to move containers to railway wagons was about one to two years.
Mr Robinson said that during his training session with Mr McIntyre his attention was drawn to the Warning on the decal in the Manual and the decal affixed to the sidelifter. He was taught by Mr McIntyre not to step into the red area when the engine was running.
Mr Robinson said that before moving a container the preparatory work he performed involved going into the red area in order to: undo the twist locks that secured the container to the sidelifter tray; attach the chains of the crane to each corner of the container, in those instances where they were not already attached; and, position the stabiliser legs.
On the first day of the hearing of these proceedings Mr Robinson carried out a demonstration of the extension of the rear stabiliser leg on the sidelifter. At the time, the sidelifter was alongside two railway carriages. Before the demonstration Mr Robinson had removed the steel plate that enclosed the top of the leg housing on the stabiliser. This is the steel plate that had been attached following the Barnes accident. When performing the demonstration Mr Robinson stood at the rear end of the adjacent railway wagon where he ordinarily stood when carrying out this task. His position was much the same as position X in diagram 8, it was in close proximity to the gap at the top of the housing. When cross-examined he agreed that he had chosen to stand in this position and the following questions and answers ensued:
"[Standing in that position] doesn't present a danger, does it?……Of course it does.
Well it doesn't, Mr Robinson, because you wouldn't have stood there if it was dangerous, would you?……No.
You wouldn't have stood there if there was any risk of injury to you, would you?……No.
But you stood there yesterday in contravention of the red zone, didn't you?……Yes.
And you stood there because there was no risk of injury to you at all in your estimation, didn't you?……Yes."
Mr Robinson also said that following Barnes' accident he had continued to use the sidelifter during the short time that passed before the opening at the top of each leg housing was enclosed. This evidence does not cause me to doubt the veracity and correctness of Mr Robinson's initial statement to the effect that, "of course" the opening at the top of the leg housing presented a danger to an operator standing on an adjacent railway wagon when positioning the rear stabiliser leg. When Mr Robinson worked on the sidelifter for the short time mentioned subsequent to Barnes' accident, and when he carried out the demonstration, he was well aware of the danger presented by the gap in the housing, and was no doubt very careful to avoid it.
Mr Robinson accepted that when he stood where he did in order to carry out the demonstration, he did so "in contravention of the red zone". I do not take this as an acknowledgement that he was contravening the Warning by being in that position when preparing to move a container. As already mentioned, at an earlier point in his evidence he said that he did not find anything in the Manual to suggest that he should not stand in that position when positioning the rear stabiliser leg. Whilst it is a matter to which I attach little weight, I note that in the diagram depicted on the Warning, the legs of the stabilisers have already been extended.
On balance I am satisfied that the intent of the Warning, or, at the very least, the commonsense understanding of Toll and its operators of the Warning, was that operators were not to enter the red area whilst moving a container, as distinct from preparing to move a container by positioning a stabiliser leg.
Mr Robinson said that Toll had a system of supervision and management that included the reporting of dangers in the workplace to a supervisor, in which case the danger would be dealt with. He acknowledged that whilst operating the sidelifter he had never noted any deficiencies with it.

Evidence of Barnes

My findings in pars[12] – [15] of these reasons, in relation to the circumstances of Barnes' accident, are substantially based on his evidence. Some other aspects of his evidence with reference to his experience and the accident include the following. He is a boilermaker/welder. Prior to the accident he had extensive experience in the trucking industry. In 1989 he commenced working as a sub-contractor with the business Hammond Palmer. That business went through a number of name changes before it was finally taken over by Toll in the mid-1990s. Barnes worked as a sub-contractor with the business until 7 January 2000 when he sold his truck to Toll and became a Toll employee.
In 1989 or 1990 he first used a sidelifter. The operation of a sidelifter can be fairly complex. He was given about four hours' training. He practised various aspects of using a sidelifter, including lining up the position of the sidelifter with the lugs on a railway wagon. The first sidelifter he used was different from the sidelifter he was using on the day of his accident in that the first sidelifter could only lift a 20 foot container and was controlled by levers attached to its rear driver's side. The unit that comprised the rear stabiliser and crane was not right at the rear end of the first sidelifter but forward of the control levers. A 20 foot container is considerably shorter than a railway wagon. Accordingly, when the first sidelifter was used to move a 20 foot container to a railway wagon it was not necessary to put a stabiliser leg between the wagons. The legs were placed on the tray of the wagon. Save for these differences, the principles for operating the first sidelifter and the sidelifter he was using when injured were basically the same.
The first sidelifter he used that was capable of lifting a 40 foot container was operated via a control panel attached to its rear by an extension cord ("a tethered control panel"). Subject only to the length of the extension cord and the need to avoid damaging the cord, the tethered control panel could be used from various positions, including standing on the tray of an adjacent railway wagon. He had used a tethered control panel to move a 40 foot container to an adjacent railway wagon on about half a dozen occasions. When he did so, he had used the tethered control panel in the same way that he had used the remote control panel on the day of his accident. He had extended the rear stabiliser leg from the same position at the rear of the adjacent railway wagon. He had never used a tethered control panel to operate the first sidelifter, which could only lift a 20 foot container.

Between 1989/1990 and the date of his accident, he probably worked on a sidelifter a day every couple of months. On those days when he worked on a sidelifter he performed about four or five lifts. He always worked on his own and was not really supervised until the new Mark 6 sidelifter was purchased in April 1999. He did not work with that machine as soon as it was acquired. Toll had set employees who normally operated the sidelifter. When the Mark 6 was acquired, those employees were David Robinson and Neil Richardson. Toll only worked one shift at its Launceston depot. At the time of his accident the only sidelifter in regular use in the Launceston depot was the Mark 6. It was only when David Robinson and Neil Richardson were not available to operate the sidelifter that Barnes or another driver was called on to operate it.
Some time after the Mark 6 sidelifter was acquired, Barnes received training in the use of its remote control panel from Neil Richardson. The operation of the switches and joysticks on the panel was a little different to the operation of the levers attached to the first sidelifter, but the principles were the same. His training began in the yard at Toll's Launceston depot and then moved to the Amcor site in Launceston. Toll regularly delivered and collected containers to and from that site. Mr Richardson showed him how to use the remote control and assisted him to load and unload a container or two. Mr Richardson showed him how to move a container to a railway wagon and position the rear stabiliser leg between the wagons without damaging the tow hitch and brake lines. When Mr Richardson demonstrated this manoeuvre he stood at the end of the railway wagon. When Barnes performed this task in the course of his work he stood in the same position as Mr Richardson had.
When positioning the leg of a stabiliser between railway wagons it was necessary to tilt the leg before extending it. If the leg had been fully extended before it was tilted it would have contacted the tow hitch between the wagons. Whilst the leg had to be placed on a level footing, the best location for the operator when he positioned the leg was not standing on the ground. If he stood on the ground on the far side of the coupling he could not adequately see the distance between the leg and the tow hitch, see the movement of the leg, or gauge how far or fast it was moving. The same would have been so had he had stood on the ground on the near side of the coupling. The best place for him when positioning a stabiliser leg between railway wagons was on top of a wagon looking down between them. In that position everything was in front of him, he was about 300 millimetres to a foot from the edge of the wagon and about two feet from the leg. This was the safest and best position from which to ensure that no damage was caused. At no time when so positioning a stabiliser leg had he damaged a coupling or hose.
Immediately before being trained by Mr Richardson, Barnes was handed the Manual. He thought he had browsed through it. It was in the truck when he was trained, and it was then returned to the office. Mr Richardson did not point out any warning signs on the sidelifter, or mention the Warning. He had never received any instruction about the Warning. Nonetheless, Barnes saw the Warning as he walked around the sidelifter. He could not recall signs like the Warning on the earlier sidelifters he used. As to the Warning he said that he had seen it but "was a bit confused" by it as:
"I can actually understand when you're swinging the container not to be in that area off the trailer. You've got to be in that area to undo and do your chains up on the container, there's no other way of doing it, you've got to go in that area to do the chains up and undo the chains … Otherwise the operation's not going to happen. I think that's probably what confused me about it a bit, but … I do know that you shouldn't be in that area when you're operating – swinging the container off and on."
When cross-examined he agreed that if it was necessary to move in and out of the red area to deal with the chains, the motor of the sidelifter could be turned off from the remote. He reiterated that the position in which he was standing at the time of his accident was the safest and best position from which to ensure no damage was caused when positioning the rear stabiliser leg between railway wagons. He agreed that the Warning was on the sidelifter on the day of his accident and had been there from the day he first saw the new sidelifter. The following questions and answers then ensued:
"Right. And at the time of your accident, not only was the engine of the truck running, but the motor operating the stabiliser leg was also running – correct?…….Yes.
And this [Warning] tells you that you are not to enter the red shaded area while the motor is running, doesn't it – that's what it says?…….Yes.
And the red shaded area includes the position you were standing, doesn't it?…….Yes.
So you were standing in a position that a sign on the truck told you, you were not to stand – that's so, isn't it?…….Yes."
At a later point in his evidence he said that his choice to stand in that position accorded with common practice.
The day of Barnes' accident was the first occasion on which he had, on his own, used the new sidelifter to transfer containers to railway wagons, although he had performed this task with earlier sidelifters. When he used the first sidelifter there had been no choice about where he stood during this operation, as he had to stand by the control levers that were attached to it. Prior to using the new sidelifter for this task he had seen Neil Richardson and other Toll employees using it for the same purpose. They stood on the wagon in the same place that he stood when positioning the rear stabiliser leg. He had never been told not to carry out that operation from that position.

Toll's liability to Barnes

Against the background of the foregoing the following are my findings on Toll's liability to Barnes and his contributory negligence. These findings are made in the light of what was known or ought to have been known by Toll or its advisers at the time of Toll's settlement with Barnes.
The gap in the top of the stabiliser leg housing presented a real danger to anyone working in proximity to it, as it closed when the leg was extended. An operator of the first sidelifter was not exposed to this danger as it was controlled from levers attached to its rear driver's side. Of necessity the operator stood on the ground when extending the leg. In that position there was no realistic prospect of the operator coming into proximity with the closing gap.
There were two important differences between the first sidelifter and the Mark 6 sidelifter. The Mark 6 was operated via a remote control, not levers attached to its side, and the Mark 6 could lift 40 foot containers whilst the first sidelifter could only lift 20 foot containers.
A 20 foot container was considerably shorter than a railway carriage and the unit comprised of the rear stabiliser and crane on the first sidelifter was not right at its rear end, but forward of the control levers affixed to its side. Accordingly, when a container was moved from the first sidelifter to a railway wagon, it was not necessary to position its rear stabiliser leg between the wagons. Both stabiliser legs could be placed on the wagon. When a 40 foot container was moved by the Mark 6 sidelifter, its rear stabiliser leg had to be placed between the wagons. A railway wagon is 60 feet long, which is longer than the combined length of a truck attached to a Mark 6 sidelifter. An operator who exited from the driver's side door of the truck cabin would step straight onto the tray of the adjoining wagon. In result, with the advent of a remote control, the obvious position from which to manoeuvre the rear stabiliser leg between railway wagons was at the end of one or other wagon. In either of those positions the operator overlooked the space between the wagons. However, in both positions, the operator was in close proximity to the gap in the top of the leg housing and was exposed to the risk of injury as it closed when the leg was extended.
So the significance of these changes were that the remote control enabled an operator to extend a stabiliser leg from a position in close proximity to it, and the need to position the rear leg between railway wagons provided an operator with good reason to work in that position.
I will refer to the method adopted by Messrs Richardson, Robinson and Barnes for extending the rear stabiliser leg between railway wagons and the position from which they performed that task as the work practice. The changes mentioned resulted in Toll's employees adopting this work practice in about April 1999 when the Mark 6 was purchased. Barnes' accident occurred about a year later. It was not until then that Toll focussed on the risks inherent in the work practice. When Toll did so, a comparatively inexpensive means of alleviating the risk was quickly devised and implemented. The opening in the leg housing was enclosed with an appropriately configured steel plate attached by ten bolts.
There is no question that the work practice exposed those employees of Toll who adopted it to a serious risk of injury. I am in no doubt that this risk of injury was reasonably foreseeable and was not so unlikely to occur as to justify ignoring it. The risk would have been patently obvious to anyone who considered the safety of standing in proximity to the gap in the leg housing as the leg was extended. The significance of the changes brought about by the purchase of the Mark 6, and the impact of those changes on the manner in which operators performed their work, went unnoticed by Toll. The safety of the work practice was simply not addressed. As the risk inherent in the work practice was serious, foreseeable, not remote, and easily and relatively inexpensively alleviated, I am in no doubt that Barnes' injuries can be attributed to Toll's breach of its duty of care to him.
Toll's failure to advert to this risk is central to its liability to Barnes. The particulars of negligence alleged by Steelbro against Toll referrable to Barnes' accident are detailed in par[31] of these reasons. All the particulars are subsidiary to Toll's failure to advert to the risk. Toll could only have properly instructed, trained or supervised Barnes if it was aware of the risk. Similarly, it was because Toll failed to appreciate the risk that it did not guard the opening, cease using the sidelifter or advise Steelbro of the danger in question. As to particular (d), which is not covered by what I have just written, Barnes was in fact provided with the Manual. In any event, it was of no assistance as the risk in question was not addressed in the Manual. In so concluding I have in mind what I say hereafter in relation to the Warning, a copy of which was in the Manual.

Barnes' contributory negligence

Turning to contributory negligence, I find that at the time of his accident Barnes was transferring containers in precisely the same manner in which that work had been performed for about a year by his co-employees, Mr Richardson and Mr Robinson. He was performing this work in the manner in which he had been trained to do so by Mr Richardson. More particularly he was standing in the position where he had been trained to stand, and this was the position in which he had seen Mr Richardson and Mr Robinson performing the task. Barnes had never been directed not to perform the task from that position and he had never been provided with any reason not to do so. Consistent with the approach taken in McLean v Tedman (1984) 155 CLR 306, I am unpersuaded that it is appropriate to criticise Barnes for complying with the work practice adopted by his employer.
Counsel for Steelbro contends that Barnes was contributorily negligent in that he was in the red area at the time of his accident and this contravened the Warning. It is to be remembered that contributory negligence is to be assessed in the light of what Toll and its advisers knew or ought to have known at the time of the settlement. Moreover, in relation to this issue, it is, in part, to be assessed in the light of what they then knew or ought to have known was Barnes' state of knowledge at the time of his accident. I find that at that time Barnes did not understand the Warning to be a direction not to be in the red area when extending a stabiliser leg and that this was known by Toll. I so find because of the matters referred to in the previous paragraph and for the following reasons.
In the course of Barnes' evidence Counsel for Steelbro put to him that at the time of his accident he was standing in the red area and that the Warning is a direction not to enter the red area when the motor is running. Barnes accepted that this was so but said that he was confused by the Warning. He said he could see why he should not be in the red area when swinging a container, but could not see why he should not be in that area when preparing to swing a container. His confusion is understandable. It is apparent that the Warning was not directed to the risk of preliminary activities such as extending a stabiliser leg. This is so because the border of the red area on the decal only extends about 25 cm beyond each stabiliser. This allows an operator to extend either leg when no more than 30 cm from its outer side, which is not within the red area but is in close proximity to the leg.
A further reason for concluding that the Warning was not intended to mean that an operator should not stand in proximity to a leg when extending it is that there was no express warning to that effect in the Manual. It contains ten warnings, coupled with diagrams, that warn against doing a number of obviously dangerous things. One example is not standing under a load and another is not reaching "into boom sections". Early stabiliser legs were constructed with lightening holes right through them. Most of the leg extensions depicted in the Manual contain two lightening holes. The holes were sufficiently large for a person to put an arm through the leg. There were no lightening holes in the legs of the sidelifter Barnes was using when injured.
Perhaps more significantly, as explained in par[32] of these reasons, the further and better particulars delivered by Steelbro on 13 October 2008 are the first specific indication in the pleadings that it was asserted that the Warning prohibited entry into the red area when extending a stabiliser leg. This suggests that the interpretation of the Warning now being advanced in the interests of Steelbro was not conjured up until some eight years after Barnes' accident and over a year after Toll's settlement of his claim.
The day of Barnes' accident was the first occasion on which he, working alone, had used the Mark 6 to transfer containers to a railway wagon. He had used an earlier sidelifter operated via a tethered control to perform this task on about six occasions. Clearly, the duration and frequency of his experience in using a sidelifter for this purpose was very modest compared to that of his co-employees Mr Richardson and Mr Robinson. It is not reasonable to hold against Barnes his failure to anticipate and avoid the risk in question when this had not been done by those in a far better position than him to do so. Toll had not done so and to Toll's knowledge nor had Steelbro.
Barnes was injured because of the proximity of the position in which he was working to the closing gap in the leg housing. It matters not whether his hand got into that gap because of thoughtlessness or inadvertence, as I have found on the basis of the evidence at large, or because as asserted in his witness statement, he slipped or lost balance. Thoughtlessness or inadvertence is not necessarily negligence. A distinction is to be drawn between an act done without reasonable regard for one's own safety, and an act done inadvertently or without thought. I am satisfied that insofar as Barnes either slipped or was inadvertent, his conduct was not such as to amount to a failure to take reasonable care for his own safety and he was not contributorily negligent. In so concluding I have regard to Sungravure Pty Ltd v Meani (1964) 110 CLR 24, Commissioner of Railways v Ruprecht (1979) 142 CLR 563, and McLean v Tedman (supra).

Steelbro's witnesses

The issue of Steelbro's liability to Barnes, had it been sued by him, is to be determined on the evidence at large. The evidence of Robert McIntyre and John Steel, two witnesses called by Steelbro, bears on this issue. A good deal of their evidence relates to details which were not known to Toll and its advisers at the time of the settlement, and of which it can not be said that Toll and its advisers ought to have known of it. Toll was however well aware of one significant aspect of the evidence of these witnesses at the time of its settlement with Barnes. Toll knew that Steelbro had not anticipated the risk that the leg housing gap presented to an operator.
Robert McIntyre
Robert McIntyre worked for a business that provided pre-delivery, delivery and training services referable to Steelbro sidelifters sold in Australia. He performed this work over a period of about ten years in the 1980s and 1990s. The business also carried out maintenance and repairs on sidelifters. He was involved with both the Mark 4 and Mark 6 sidelifters sold by Steelbro. During the 1990s he dealt with approximately 50 sidelifters per year. He was in the business at the time of the Barnes accident.
On 16 April 1999 he provided training in relation to the Mark 6 sidelifter sold to Toll for use at its Launceston depot. He provided further training subsequent to the Barnes accident, but does not specifically recall that training. He provided the training on three different occasions at three different locations. He cannot distinguish between the training sessions. One session was inside a warehouse with a group of between ten and twenty Toll employees. The sessions ran for three hours a day. He said that in the sessions he generally stopped after each point for questions and made sure that each person looked at, saw and understood what was going on.
There were three steps in a training session. In the course of the first step he pointed out the Warning attached to the side of the sidelifter and explained that it was for the safety of the operator and bystanders. The possibility of injuring a hand in any moving part of the machine formed part of his training, particularly by reference to the need to enforce the red zone requirement in the Warning. His training as to this had always been the same.
In the course of the second step he would have shown how to perform the basic lifting functions and had each trainee do the same.
The third step involved going through the operator's handbook, the Manual. He went through each individual line in the Manual and added any information that might assist that was derived from practical experience. Sidelifters are used in many different ways such as moving a container to and from the ground, rail transfers, and double stacking. Whilst he dealt with the generalities, if the intended use for a sidelifter was a particular operation he spent a little more time going through the performance of that operation. The practical training in the warehouse at Toll only involved moving a container to and from the ground. He had no recall of going to a rail depot to do rail transfers.
He said that, consistent with the Warning attached to the side of the sidelifter, no person was to be in the red zone when the engine was running. An operator who wanted to go into the red zone could use the remote control to stop the engine before doing so. The red zone was relevant to all of the operations of the unit. He said that the Warning was not directed to the process of transferring a container as distinct from positioning stabilisers prior to a transfer as it required that an operator not be in the red zone at any time when the engine was operating.

When cross-examined he initially accepted that in real life terms there was no specific danger in an operator standing in the footprint of the container in the red zone when positioning a stabiliser leg. However, having explained that a stabiliser is a very strong and powerful piece of moving equipment, and that an operator would be at risk if he stood in the red zone in very close proximity to it, he, in effect, said that in his eyes all of the red zone was in proximity to a stabiliser leg.
He agreed that the leg housing gap was a pinch point and the following ensued when he was questioned about it:
"And I suggest to you that that is an obvious place where one might catch one's hands or fingers?…….I never saw that aperture as a location that any operator should put his hands into.
No, that is an obvious place where one might get one's hands or fingers caught, isn't it?…….If an operator was standing in the red zone, it's possible that he could get his hand across there.
Well surely that can't be so, Mr McIntyre, if he was standing in the red zone, say, in the footprint of the container shown on the decal?…….No, he couldn't do it if he was standing in the footprint of the container, no.
But if he was -…….Because his arm couldn't reach to that point.
No. But if he was standing within an arm's length, or even a little more, perhaps, of that point, and for example, he were to stumble or fall, he may well get his fingers or hands caught in that pinch point, mightn't he?…….If he was just – if he was standing in the red zone and he fell on top of a other vehicle, yes, it's possible."
With regard to a video, identified by counsel for Toll as a demonstration video in relation to a sidelifter, he agreed that at one point it showed the operator, who was setting up the stabiliser leg walking from the red zone as the stabiliser leg was descending.
He said that from years of training operators on different rail heads around Australia he had some experience of positioning a stabiliser leg at the end of a railway wagon when transferring a 40 foot container onto a railway wagon. On those occasions he had positioned the leg from the ground or an elevated position. When positioning the leg from the ground, in some cases he had found the space between the wagons to be very limited and it took some concentration to place the leg in the correct position. Having looked at the photographs of the scene of the Barnes accident he said, "it would have been possible to" position the rear stabiliser leg from the ground.
He said that on those occasions when he had positioned a stabiliser leg at the end of a railway wagon from an elevated position, he had done so from the tray of a second wagon behind the wagon to which the container was being moved. He said that if at the time of Barnes' injury, there had been no container on the railway wagon attached to the wagon to which Barnes was making the move, Barnes could have stood at the end of that second wagon to position the stabiliser. However, he insisted that Barnes should not have done this from much the same position on the first wagon, as, "you can't do that because you are then standing in the red zone, and if your engine was running you can't stand there."
He agreed that by 1999/2000, it was expected, or at least known that it was possible to use sidelifters to move containers between their tray and an adjoining trailer or railway wagon. He acknowledged that it was possible that when such a move was performed the stabiliser leg would be placed on the tray of the adjoining trailer or railway wagon.
He was referred to the passage in the Manual which provides that: "When transferring containers to or from other vehicles the operator must not stand between those vehicles. He should operate from the end of the companion vehicle, or if it has excess deck length, from on top of the companion vehicle behind the loading area". As to the second sentence of this passage the following exchange ensued:
"But there is also an allowance there that the operator might stand on the companion vehicle during the transfer of a container?…….Yes, that's correct.
Yes. Now you would say, I suppose, that that means nevertheless that you've got to keep out of the red zone so far as that crosses onto the companion vehicle?……Absolutely correct.
But you may yet be right on the edge of that red zone, might you, on a companion vehicle?……As long as you're standing outward of the stabiliser leg in the yellow zone that is how the instruction is and that's how we use a training vehicle."
At a later point in his evidence he reiterated that it was dangerous for an operator to be in proximity to a stabiliser leg as it was lowered. Nonetheless, he said that a person standing on a railway wagon behind the wagon to which the container was to be lifted was not in proximity to that leg. He said that position "would be deemed an adequate distance away … from the stabiliser". He acknowledged, however, that if the leg was placed in the middle of the gap between the wagons, the person standing on the end of either of the wagons would be in precisely the same proximity to the leg.
John Steel
John Steel is the managing director of the Steelbro Group of Companies. He has been in that position since 2007. He began working with Steelbro in 1983. In April 2000 he had been the global sales manager for Steelbro for five years. Prior to this he had been the factory representative for the Australian market. As global sales manager he was responsible for the sale of Steelbro products world wide, and those products included sidelifters.
The Mark 6 sidelifter was developed in about 1990. Mr Steel was involved in the risk assessment of it and the manuals that were written referrable to it. Those manuals were reviewed by third party engineers, lawyers, and a number of people. In 1994, manuals and warning decals were reviewed, and it was at this time, on 13 October 1994, that the Warning decal was drafted.
In 1990 the first sales of Mark 6 sidelifters were made in Australia. Three units were sold in Melbourne and over a period of time they were sold throughout Australia. In order to sell them in some States they were required to be approved as a crane. In Victoria and Western Australia they had to be vetted by local engineers before they could be put into service. The vetting included checking for safety concerns. Their use was approved in Victoria and Western Australia. The sidelifter being used by Barnes when he was injured was the same as the Mark 6 sidelifters to which he was referring.
In 1993/1994, Mark 6 sidelifters were sold to a very large operator in the United States, GATX. Prior to that sale being concluded a substantial risk assessment was carried out by experts nominated by GATX. The units were approved without any design changes being required.
A responsibility of sidelifter owners that is set out in the Manual is to cease using a sidelifter and immediately contact Steelbro for advice if it is a hazard to health or safety. Between 1990 and 2000 more than 50 Mark 6 sidelifters were sold in Australia, and the total sales worldwide, including Australia, were over 100 per year. During this period he fielded complaints in relation to accidents and the like involving the Mark 6. Prior to Barnes' accident Steelbro had received no notifications or complaints referable to the leg housing gap.
Following the Barnes accident he, Mr Steel, was involved in senior management discussions concerning the accident: "We were trying to understand how it could happen". Mr Steel spoke to the then current managing director of Steelbro about it. As to that discussion, Mr Steel said:
"We were astonished as to how he could have got up there. So a large part of the discussion was trying to figure out how he managed to do it … Initially we asked if he had a ladder but [it was] explained … that he was standing up on top of the railway wagon".
Subsequent to the Barnes accident, to his knowledge, the only sidelifters to which guards were added in order to cover the leg housing opening were those owned by Toll in Tasmania. Of the units in service around the world, none were recalled in order to fit similar guards. Nonetheless, a design change was implemented by Steelbro. Thereafter the top plate on the leg housing of all new sidelifters produced was extended so as to cover the opening.

Steelbro's liability to Barnes

Steelbro, as the designer and manufacturer of the sidelifter, was subject to a duty to users to take reasonable care to avoid causing injury to them, Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, McHugh J at par[28] and Hayne and Callinan JJ at par[156]. In the particular circumstances of this case Steelbro owed a similar duty as the supplier of the sidelifter, Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 pars[78] – [82]. In the context of this duty the term "user" encompasses Toll and employees of Toll who used the sidelifter in the course of their employment, Sousaari v Steinhardt [1989] 2 Qd R 477, Cooper J, agreed with by Connolly and Ryan JJ at 487. In the same case Cooper J, again agreed with by Connolly and Ryan JJ, said at 489:
"Where the risk is real, although the incidence of it may be low, the designer is under a duty to minimise the risk by taking all reasonable steps to eliminate it, particularly where the alteration to the design is simple and inexpensive. … The manufacturer is under a duty to take care to reduce the risk of injury as far as he reasonably can, and to eliminate it, if reasonably possible, when the product is being used to perform its usual or foreseeable function."
In designing and manufacturing the sidelifter, Steelbro was required to pay regard to the possibility of inadvertence on the part of a user. As Dixon CJ observed in Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 324:
"It may well be true that in every case, some carelessness, inattention or folly on the part of the workman would explain the fact that he had become involved in the machine. But that is nothing to the point. By definition a machine is dangerous if it exposes persons guilty of inadvertence, inattention, carelessness or folly to danger."
The evidence of Mr McIntyre and Mr Steel confirms a number of the conclusions I expressed when dealing with Toll's liability to Barnes, and his contributory negligence. It is clear that Steelbro did not appreciate the significance of some of the changes that followed upon its introduction of the Mark 6 sidelifter. By reason of the remote control then introduced, it became possible for an operator to extend a stabiliser leg from an elevated position in close proximity to the gap in the top of the leg housing. Whilst it is obvious that an operator who performed that task from such a position was exposed to a very real risk of danger, Steelbro did not advert to it.
One explanation for Steelbro's failure to advert to the danger can be found in the evidence of Mr Steel. He was involved in senior management discussions about Barnes' accident. He said of those discussions that a large part of them involved trying to figure out how the accident could have happened, how Barnes had managed to do it. They were astonished that he could have got up to where he was. They asked Toll if Barnes had used a ladder and it was explained to them that he was standing on the adjoining railway wagon. This evidence shows that the senior management at Steelbro involved in these discussions were living in the past. Not only were they overlooking the fact that, by reason of the introduction of a remote control, operators could and were extending stabiliser legs from an elevated position, but they were apparently not cognisant of the fact that their Manual included a direction that operators should do so.
On the basis of Mr McIntyre's evidence Steelbro must have known that the Mark 6 stabiliser was used to move containers to or from the tray of an adjoining railway wagon or truck, and that on occasions, the operator performed this operation from an elevated position. The Manual includes the following direction: "When transferring containers to or from other vehicles the operator must not stand between those vehicles. He should operate from the end of the companion vehicle, or if it has excess deck length, from the top of the companion vehicle behind the loading area."This is a direction that when transferring a container to or from another vehicle with excess deck length, the operator should stand on top of that vehicle behind the loading area. Relating that direction to Barnes' accident, its effect is that if the tray of the second railway wagon had been empty, Barnes should have stood on it. When a stabiliser leg is positioned between two railway wagons it is likely to end up about midway between the wagons. That being so, had Barnes stood on the second wagon in a similar position to that in which he stood on the first wagon when extending and positioning the leg, he would have been in the just the same danger. Mr McIntyre was well aware that operators stood in such a position on the second railway wagon when performing a manoeuvre of the nature in question. He had done so himself when carrying out that task. It seems from his evidence that in some instances the space between the wagons was very limited. In those cases Mr McIntyre would have been in closer proximity to the risk presented by the closure of the leg housing gap than Barnes was at the time of his accident.
A similar risk arose in relation to the front stabiliser when moving a container to the tray of an adjoining railway wagon. The operator, having exited the truck cabin onto the tray of the adjoining wagon, was likely, whilst standing on that tray, to use the remote control to extend both stabiliser legs. The front leg is extended to the adjoining tray. When a leg is extended to an adjoining tray the height of its leg housing gap above the tray is greater than its height when the leg is extended to the ground. Nonetheless, the operator may be in close proximity to that gap when extending a leg to an adjoining tray.
The evidence establishes that the dangers referred to were not adverted to by Steelbro, Toll, or many others who assessed the safety of the Mark 6 sidelifter or used it. Notwithstanding that this is so, I have no hesitation in concluding that this danger was reasonably foreseeable. It was known that operators stood in an elevated position on a tray adjoining the sidelifter when extending sidelifter legs. Had anyone properly addressed the risk of the performance of that operation in that position relative to the closing leg housing gap, the danger thus presented would have been patently obvious. The danger was reasonably foreseeable and not so remote as to justify ignoring it. I am accordingly satisfied that had Steelbro been sued at the time when Barnes' cause of action arose, it would have been liable to him for the same damage as Toll.

A just and equitable apportionment between Toll and Steelbro

Apportioning responsibility for Barnes' injuries between Toll and Steelbro involves comparing both their culpability, that is the degree of their departure from the standard of care they owed, and the relative importance of their conduct to his injuries. The whole of their conduct in relation to the circumstances of the accident must be subjected to comparative examination.
As should be apparent, I conclude that in the case of both Toll and Steelbro, their crucial breach was to fail to appreciate the risks involved in an operator extending the leg of a sidelifter from an elevated position in close proximity to the leg. They were both well aware that this was being done. They both had ample opportunity to recognise the danger. Steelbro had this opportunity over a period of about ten years, and Toll had this opportunity over the period of about a year. This difference in the duration of the period of the opportunity for each to recognise the danger might suggest that Toll should bear the greatest portion of responsibility for Barnes' accident. However, in both cases the key failure was the failure to recognise the danger at the outset. Steelbro should have appreciated the danger when it first became aware that stabiliser legs of Mark 6 sidelifters were being extended from an elevated position by an operator in close proximity to the legs. Toll should have done likewise when its employees adopted a work practice that involved doing this. Both should also have recognised the danger in the course of the sort of regular safety assessments to be expected of them. In this regard, I consider that Toll's failure was more significant than Steelbro's. It is likely that Steelbro's assessments were influenced by the absence of any reports of a danger of the nature in question. In a sense it is reasonable that Steelbro's assessments were less specific and more detached than those of Toll. Steelbro's focus when reviewing the safety of the sidelifer would have been on every aspect of its operations. Toll's focus should have been directly on the way in which it was being operated by its employees. On balance, I consider that responsibility for Barnes' injuries should be apportioned equally between Toll and Steelbro.

In so concluding, I pay no regard to Steelbro's assertion that Toll failed to enforce compliance with the Warning that during the operation of the sidelifter the operator should not enter the red area. As explained, when I dealt with contributory negligence, I am not satisfied that the Warning was in fact intended to direct operators to remain out of the red area when extending a stabiliser leg or was so understood. After all, an operator who extended a leg in close proximity to it, but on its outer side, was not in the red area.

Barnes as a witness

Save for Barnes' evidence about how his accident occurred, I cannot bring to mind any evidence he gave in the course of the hearing that is of real significance to my findings on issues to be determined on the evidence at large. Nonetheless, I should say that in assessing his evidence, I have taken into account that he was such a co-operative witness that he was on occasions willing to agree to leading questions that were plainly wrong. An illustration of this is the following cross-examination referable to the witness statement he had provided to his lawyer:
"You recall that in '06 you had a lawyer, you had Mr Pearce looking after you?……Yes, yes.
Robert Pearce……Yes.
Yes. And you recall that he was interested around that time in the circumstances of your accident, how it happened and what had happened to you as a result of your accident……Yes.
And you recall that you gave him that sort of information…….Yes.
And obviously, I take it, when you did you told him the truth……Yes."
In fact, Robert Pearce was the lawyer acting for Toll and against Barnes.
Another instance of Barnes' willingness to accept that which was put to him relates to the time when he resumed running his own trucking business following his accident. His taxation returns show that he purchased an international truck and a low loader on 1 December 2001, which by 30 June 2002 had earned income from cartage totalling $2,291, and in respect of which $2,520 was owed to him by trade creditors. These tax records are consistent with a note made in Barnes' witness statement. They show that he re-entered the trucking business on 1 December 2001, some seven months prior to his receipt of a letter from Toll dated 9 July 2002. Nonetheless, when, in the course of the Barnes' cross-examination, it was put to him that it would have been a little bit of time after he received that letter from Toll before he was able set himself up with his own truck, Barnes agreed.

As Barnes gave evidence, I gave thought to the impression he would have made as the plaintiff in a defended hearing of his claim. In my experience, this is an important factor when advising a defendant on a settlement. My assessment is that Barnes was likely to come across as a straightforward decent man who was not a malingerer, and who, if anything, was inclined to understate the magnitude of his injuries and their impact on his capacities and prospects. He was well known to Toll. My expectation is that Toll and its advisers would have assessed Barnes' likely performance as a plaintiff in much the same way as I have. There was little prospect of diminishing the seriousness of his injuries, and it was unlikely that his performance as a witness would provide the Court with any reason to disbelieve him or discount the impact of his injuries upon him.

Is the quantum of Barnes' damages reasonable?

The reasonableness of the quantum of Toll's settlement of Barnes' claim is determined on the basis of what Toll and its advisors knew or ought to have known at the time of the settlement. I assume that Toll's legal adviser recommended that it settle for the amount in question, but do not have the assistance of any evidence of the reasoning in support of that recommendation. As observed in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (supra) by Hayne J, par[129], evidence that reveals why it was thought reasonable to compromise a claim is important. I infer that Toll thought it sensible to settle Barnes' claim because it was liable to him, and I also infer that Toll accepted that Barnes had not been contributorily negligent.

Barnes was 40 years of age when injured. He effectively lost all the fingers on his right hand, save for half of his index finger. He has the use of his thumb. He is right side dominant. Save insofar as his injuries affect his employability, I will not address them in any detail, as for the purposes of the hearing the parties agreed that the appropriate award for Barnes' general damages is $40,000.

The crucial element of Barnes' damages claim is the effect of his injuries on his earning capacity. In this regard, amongst the information before Toll, was Barnes' witness statement which included the following.

Barnes left school in 1973. He completed an apprenticeship as a boilermaker welder. In 1980 he worked for a year on maintenance crews servicing sawmills. In 1981 he worked for six months welding and fabricating. He then worked for a year maintaining trucks and trailers. Thereafter he worked as a freelance log truck driver for seven years until mid-1989. He had his own workshop. During this period he also worked as a relief truck driver and a relief bus driver for a number of different entities and performed maintenance repairs and fabrication work. In October 1989, he purchased a prime mover and sub-contracted as a driver for Hammond Palmer which became Freight Lines, then Interlinks and finally Toll. During this period he expanded his business to include two prime movers, four trailers and one tipper truck. In 2000 he sold his truck to Toll and became an employee truck driver with Toll on 7 January 2000. From late 1994 until Christmas of 1998, he was in a partnership that carted logs and did freelance work in addition to the work that he did for Toll. In about 1985 he began taking over his father's bussing business and, after 18 months, he assumed complete control of the business which he built up to include five buses The business did a Perth to Launceston run, a school run, charter trips and tours. His father drove the school run, and until 2000 the business employed a couple of casuals. In April 1999 he sold the Perth route service.
Barnes returned to work subsequent to his accident on 28 May 2001, and was placed in the depot to help out where needed. He helped out in the general groceries department and then transferred to the CUB store. After two weeks of lifting cartons of beer his hand swelled up. His doctor informed Toll that he could not perform those duties and he was placed in the office with the truck controller. He was not an office person and opted to return to his old job of truck driving. However, his hand began to close up and he suffered from more cramps and had to seek physio-therapy on a daily basis because of the effect of prolonged gripping of the steering wheel. He moved to operating a forklift and did yard duties which reduced his visits to the physiotherapist to twice a week. The cold weather caused poor circulation in his hand which in turn caused pain and increased cramping. When supervising in the yard in the winter, he approached Toll on a number of occasions requesting an office or inside job to get out of the weather. Nothing came of those requests, although his doctor had provided a certificate which stated that he needed to be rehabilitated in a different work area. Nothing was done and he remained away from work. He received a letter from Toll dated 9 July 2002, which he understood to be notice that his employment had been terminated. I have found that by this time he had purchased his own truck and was attempting to run his own trucking business.
In his witness statement he said that following his return to running a trucking business he lost confidence in his driving skills and the grip function of his right hand deteriorated. He suffered badly from cramps and arthritic type pains and needed prescription medication to ease the pain. His business steadily lost work and money. He sold the truck in September 2004 and was then unemployed. On 16 January 2006 he found work with Eugene McCarthy Transport, and he was in that employment at the time of his witness statement, dated 5 April 2006. He was employed by Eugene McCarthy as a controller, which was mainly an administrative job, and as a yard supervisor. His duties involved ensuring that the drivers had all the necessary paperwork, supervision of the men in the yard, ensuring that work was carried out properly, and ensuring that the drivers followed safety procedures. His then wage was $40,000 per year which included his superannuation.

Additional information that Toll had on Barnes' capacity to work was contained in reports provided to Toll's solicitors. Amongst them were the following reports.

A report dated 9 April 2002, from Mr C J Edwards, a surgeon, in which he assessed Barnes' permanent disability as in the order of a 45 to 50 per cent loss of function of his right hand as a whole.

A report dated 30 September 2002, from Dr A Sillcock, an occupational physician, who had interviewed and assessed Barnes. It included the following:

·     He had spent a few months working in the yard last summer, driving the forklift and hosing trucks, which was quite satisfactory. However, once the weather got colder his pain increased and he took time off work. He found that working outside in the summer was all right, but not in the winter.
·     He had intermittent pain in his right hand and it cramps up, especially in cold weather. It happens once or twice a week and if he does not go to physiotherapy, he gets the cramp every four hours.
·     He can do a little writing but struggles after about 50 words.
·     When he has done a day's work he is exhausted and feels as if he has done three days' work. He is not an "inside person" and does not wish to work in an office.
·     He has some pincer grip remaining between his thumb and the side of his index finger, but is unable to pick up very much using the end of the finger.
·     Advice that Barnes is not fit to undertake his pre-injury duties of truck driving, nor is he fit to undertake his previous employment as a boilermaker/welder. It is almost impossible for him to continue to work outside during the winter. Consideration needs to be given to the type of work he can perform inside. His capacity to earn an income has been severely impaired. He can probably do some yard or storeman-type duties, provided he is inside during the winter months, and he does not have to do anything requiring heavy lifting or gripping with his right hand. He has an extremely serious injury to his right hand and as he has always done physical-type work, he is in somewhat dire straits.

A report dated 26 January 2005 from Dr D C Burke, a consultant rehabilitation physician, who had interviewed and assessed Barnes. It included the following:

·     Following Barnes' unsuccessful efforts to return to work at Toll, he purchased a truck and struggled on working as a truck driver until September 2004, despite persistent and increasing hand pain. He is facing up to the fact that he is not able to continue working as either a truck driver or as a boilermaker, which are his particular work skills. He has not worked since September 2004.
·     He is able to drive a motor vehicle but is restricted to approximately 30 minutes at a time by the vibrations from the steering column transmitting through his injured hand, which he uses to help control the steering wheel.
·     He is left with a severe impairment to his dominant right hand with only a weak pinch grip between his thumb and the stump of his index finger available to him. His hand is also intermittently painful, particularly in cold weather. He experiences considerable swelling in his right hand if he uses his hand extensively.
·     Advice that Barnes has tried very hard to return to work despite his very disabling injury and that there is no way that he could return to work in his trade as a boilermaker and welder.
·     Advice that Barnes has worked in a self-employed capacity for some years, it should be possible for him to re-engage in some form of self-employment that does not require him to engage in heavy physical activities involving the use of his right hand, and particularly which would require him to work outdoors. While accepting that he has difficulty writing with his non-dominant hand (and would have great difficulty holding a pen in his right hand), and would have difficulty operating a computer, there is a significant possibility of obtaining employment in business. With his experience it should be possible for him to obtain employment more on the business side so that he employs people to do the work he can no longer perform.

Barnes' return to work on 16 January 2006 would have provided impetus for the early settlement of his claim. On the basis of his past efforts to return to work there was reason for concern that his return to work might be short-lived. If the return failed, the upper end of the range of Barnes' claim for loss of future earnings was in the area of $500,000. Experience suggests that the longer it takes to settle a claim, the greater the prospect of a claimant suffering a relapse or the like which increases the quantum of the claim.

Toll's solicitors had been provided with copies of taxation returns referrable to Barnes and his company up to the financial year which ended 30 June 2004. They were also provided with a witness statement from Barnes by his solicitors, dated 5 April 2006. When the statement was taken Barnes was employed with Eugene McCarthy. In his evidence before me Barnes said he thought that he had moved to another employer, RBA Transport, by the time of the settlement of his claim. If this was so, then Toll would have been aware of it, as RBA Transport was a sub-contractor to Toll. In any event, at the time of the settlement Barnes had been in employment for a period of 16 months and this would have been known by Toll.

The only detailed particulars of Barnes' claim that were then available were not up-to-date. They are dated 16 November 2004. Nonetheless, the particulars contained a considerable amount of information on Barnes' actual and projected earnings. It was open to Steelbro to adduce evidence to show that Toll knew or ought to have it known that the information contained in the particulars was not correct. Steelbro did not do so.

Figures extracted from the taxation returns provided to Toll, as detailed in the particulars of his claim, showed that over three years prior to 30 June 2000, Barnes' average net annual income was $50,845.87, that is, $977.81 per week. His earnings decreased when he ceased working as a Toll subcontractor and joined Toll as an employee on 7 January 2000. In the particulars, they are calculated as $758.93 net per week. On the basis of those particulars, his net weekly earnings would have increased to $1,057.21 by 30 June 2004. Again on the basis of those particulars, his past loss of earnings, less that which he had earned since his injury, was $137,259.31.

For the purposes of the settlement, Barnes' past loss of income continued beyond 30 June 2004 until 16 January 2006, when he took up employment with Eugene McCarthy, a period of 80 weeks. On this basis he had a further entitlement in respect of past loss of income of:

$1,057.21 x 80 = $84,577.

The above calculation does not take into account any income that Barnes may have earned during the period from 1 June 2004 to September 2004 when he sold his truck.

Barnes' evidence is that during the period before he obtained employment with Eugene McCarthy, he lived off his savings. From this, I conclude that he was not paid weekly compensation during this period. This conclusion is consistent with the modest total of the amount of weekly compensation paid to him. That he was not paid weekly compensation during this period would have been known to Toll.

On the basis of the above calculations, Barnes' entitlement for past loss of income to 16 January 2006, was:

$137,259.31 + $84,577.00 = $221,836.31.

In addition, Barnes had a potential claim for past loss of income from 16 January 2006 until the date of settlement, 22 May 2007. In his witness statement, he said that at Eugene McCarthy he was earning $40,000 per annum, which included superannuation. If that was a gross amount, which Barnes said it was in the course of his evidence, it was markedly less than that which, according to the particulars, he would have been earning had he continued in his employment with Toll. Barnes said his take home pay at Eugene McCarthy was about $500 to $600 per week. On the other hand, Barnes agreed in the course of his evidence that when he moved to RBA Transport he earned about what he would have earned had he stayed at Toll. I am quite unable to deduce from this what Toll knew, or ought to have known about Barnes' actual earnings between 16 January 2006 and 22 May 2007. What is clear is that Toll knew or ought to have known that Barnes was likely to substantiate a claim for past loss of income of not less than $220,000.

In May 2007, Barnes was just short of 48 years of age. Accepting that he was likely to work until the age of 65, he had a future working life of 17 years. The value of $1 per week for 17 years, subject to the statutory discount rate of seven per cent, is $527.

Accepting that Barnes' net earnings as at 30 June 2004, should have been $1,057.21 per week, that was a conservative estimate of what his earnings should have been as at May 2007. As already mentioned, there was reason for concern about the long-term prospects of Barnes' return to employment. If his employment had ceased, there was a risk that he could establish that his prospects of regaining employment were minimal. In that event, on the basis of the figures referred to, the upper end of the range of his claim for loss of future earnings, discounted by 15 per cent, was:

$1,057.21 x $527 x 85 per cent = $473,577.22.

I will not spend further time addressing what Barnes' award for loss of future earnings might have been had it been established that his future employment was reasonably secure. Even if, as suggested by counsel for Steelbro, it was no more than $50,000, his damages would have exceeded $300,000.

At the time of the settlement, loss of superannuation was commonly calculated to be nine per cent of the total award for lost income. Nine per cent of $270,000 is $24,300. So, ignoring the sort of lesser claims that are commonly developed before an action goes to trial, such as claims for future treatment and the like, the lower end of the range of damages that Barnes was likely to recover was:

General damages $40,000

Past loss of income $220,000

Future loss of income $50,000

Superannuation loss $24,300

Total

$334,300

Bearing in mind the reason for concern about the long-term prospects of Barnes' return to employment, I am in no doubt that the amount of the settlement was reasonable.

In settlement of Barnes' claim Toll has paid a lump sum of $300,000, costs of $25,000 and $73,907.59 for workers compensation, a total of $398,907.59. Judgment will be entered for Toll against Steelbro for 50 per cent of that amount, $199,453.80.

Diagram 1

Diagram 2

Diagram 3

Diagram 4

Diagram 5

Diagram 6

Diagram 7

Diagram 8

General damages	$40,000
Past loss of income	$220,000
Future loss of income	$50,000
Superannuation loss	$24,300
Total	$334,300