Boral Bricks Pty Ltd v Cosmidis

[2013] NSWCA 443

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Hearing dates:

25 November 2013

Decision date:

18 December 2013

Before:

McColl JA at [1];
Basten JA at [2];
Emmett JA at [105]

Decision:

In the indemnity proceedings CA 2012/300884:

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs.

In proceedings CA 2012/300879:

(1) If either party wishes to:

(a) submit that the issue of contributory negligence should be remitted to the District Court, and

(b) supplement its written submissions with respect to the proper finding with respect to of contributory negligence

he or it should file written submissions, not exceeding eight pages, no later than 24 January 2014.

(2) Each party has until 5 February 2014 to file submissions in response, not exceeding five pages.

(3) If either party seeks to have the Court reconvene for the purpose of further oral argument, that application should be contained in the submissions referred to above.

(4) A party seeking a retrial should nevertheless comply with order (1)(a).

(5) If there is a reason why the Court should not dispose of costs at this stage, that should be noted in the submissions; otherwise the submissions may include proposed orders as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - erroneous fact-finding - whether appeal court can substitute its own findings - whether substantial miscarriage warranting retrial

DAMAGES - torts - negligence - motor vehicle accidents - future economic loss - past domestic care - future domestic care - challenges to assessment at trial

EVIDENCE - admissibility - opinion; expert report - assumptions - opinions based on measurements and calculations

EVIDENCE - witnesses - cross-examination - objection - rejection of cross-examination - whether topic of cross-examination covered by particulars in pleading

PROCEDURE - inadequacy of pleading - failure to particularise - no request for particulars - no notice before trial of objection to pleading - objection by ambush at trial procedurally unfair - refusal to grant adjournment to address amendment

TORTS - negligence - contributory negligence - challenge to findings of fact at trial - failure to address key elements of the comparison of responsibility of plaintiff and defendant

Legislation Cited:

Evidence Act 1995 (NSW), ss 78, 79
Motor Accidents Compensation Act 1999 (NSW), ss 3, 128, 141B; Ch 5
Uniform Civil Procedure Rules 2005 (NSW), r 51.43
Workers Compensation Act 1987 (NSW), ss 151G, 151H, 151Z; Pt 5

Cases Cited:

Benton v Scott's Refrigerators Freightways [2008] NSWCA 143
Donaldson v Harris (1973) 4 SASR 299
Fox v Percy [2003] HCA 22; 214 CLR 118
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116
Percy v Fox [2001] NSWCA 100

Category:

Principal judgment

Parties:

Boral Bricks Pty Ltd (Appellant)
Orestis Cosmidis (Respondent in 2012/3300879)
DM & BP Wiskich Pty Ltd (Respondent in 2012/300884)

Representation:

Counsel:

Mr M T McCulloch SC/Mr N J Polin (Appellant)
Mr J Guihot (Respondent 2012/3300879)
Mr D Stanton (Respondent 2012/300884)
Solicitors:

Davidson Legal (Appellant)
Frisina Lawyers (Respondent 2012/3300879)
Sparke Helmore Lawyers (Respondent 2012/300884)

File Number(s):

CA 2012/300879; CA 2012/300884

 Decision under appeal 

Jurisdiction:

9101

Citation:

Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144

Date of Decision:

2012-09-13 00:00:00

Before:

Levy DCJ

File Number(s):

DC 2011/80368

Judgment

1. McCOLL JA: I agree with Basten JA.

1. BASTEN JA: On 18 April 2008 Orestis Cosmidis (who will be referred to below as "the plaintiff") delivered a tanker load of fuel to premises at Badgery's Creek where the appellant, Boral Bricks Pty Ltd, carried on a brick manufacture and supply business. Having completed the delivery, the plaintiff was walking from the office to his tanker when he was hit from behind by a forklift driven by Daniel Mohr. He brought proceedings for damages against the appellant both as occupier of the premises and as the employer of Mr Mohr. (Mr Mohr was named as the second defendant, but the proceedings against him were not pursued.)

Issues on damages appeal

1. The plaintiff obtained a judgment in his favour in the District Court in an amount of $1,174,892.90: Cosmidis v Boral Bricks Pty Ltd [2012] NSWDC 144. Boral Bricks appealed from that judgment, but did not challenge the finding of liability; it did challenge the finding that there was no contributory negligence on the part of the plaintiff.

1. Relevant to the question of contributory negligence was the content of a report obtained by the appellant from Mr Grant Johnston, a consulting engineer. In a brief judgment delivered at the conclusion of the oral evidence (on 27 April 2012) the judge rejected the tender of the report as having been based on "unproven facts, speculation and unwarranted assumptions that render the report of no probative value". The appellant challenged that ruling.

1. A third and separate basis of challenge arose out of the refusal by the trial judge to allow cross-examination of the plaintiff with respect to possible discussions he had had with his supervisor in relation to safety at the Boral site. Neither the plaintiff nor Boral Bricks had brought proceedings (either for damages or for contribution, respectively) against the plaintiff's employer, DM & BP Wiskich Pty Ltd ("Wiskich"). Nevertheless, to the extent that the accident resulted from a breach of the employer's duty of care owed to the plaintiff, Boral Bricks had available a defence with respect to the extent of its liability, pursuant to s 151Z(2) of the Workers Compensation Act 1987 (NSW). In its defence, the appellant had made a bald allegation of "negligence" on the part of the plaintiff's employer, without identifying any material facts which might support such an allegation. At trial, counsel for the plaintiff successfully objected to any questions being asked of the plaintiff which might support a claim of breach of duty by the plaintiff's employer as to which it had no notice by way of particulars. The appellant argued that such a line of questioning, which might also have been relevant to its separate defence of contributory negligence on the part of the plaintiff, ought not to have been foreclosed.

1. There was a further limb to this challenge: once the ruling that such cross-examination was inadmissible in the absence of a pleading containing particulars of negligence as against the plaintiff's employer, the appellant sought leave to amend its defence to include particulars and, if it were necessary, for an adjournment to allow the plaintiff to deal with the particulars. Both applications were refused: both decisions are challenged.

1. Finally, the appellant attacked a number of elements of the assessment of damages. Although the amended notice of appeal was more broadly drawn, the submissions were restricted to complaints as to the amounts allowed on account of domestic assistance (both past and future) and for future economic loss.

1. Given the range of issues raised by the appellant, there was a consequential question as to the nature of the relief, particularly if the appellant were to be successful with respect to some only of its grounds. The finding that there was no contributory negligence depended in part upon the acceptance by the trial judge of the account given by the plaintiff as to how the accident occurred. If the conclusion with respect to contributory negligence were to be set aside, that would necessarily entail a rejection of part of the plaintiff's evidence. The plaintiff's credibility was, the appellant submitted, of central significance with respect to the assessment of damages. Accordingly, the submission continued, if the finding with respect to the contributory negligence were found to be flawed, the matter would need to go back for a retrial, which must involve a reassessment of the plaintiff's evidence generally. In such circumstances, it would not be possible to quarantine, for example, the findings with respect to liability, so as to preserve the assessment of damages. Whether that submission should be accepted is contestable.

1. Before turning to consider the substance of the grounds identified above, it is convenient to note two procedural issues relating to questions of fairness in the conduct of the trial. Thus, with respect to the refusal to allow cross-examination as to unpleaded particulars of the liability of Wiskich, the appellant submitted that if its pleading were deficient (which it denied) that point should have been taken before the trial and not in the course of cross-examination of the plaintiff. Further, and in support of its denial that its pleading was deficient for failure to particularise the negligence of Wiskich, the appellant challenged a passage in the reasoning of this Court in Benton v Scott's Refrigerators Freightways [2008] NSWCA 143 at [33].

1. The second procedural issue was of a similar kind, but related to the objection taken to the report of Mr Johnston. Mr Johnston's report had, of course, been prepared before the oral testimony was given. However, Mr Johnston was available to give oral evidence, if required. Apart from submitting that his availability removed the validity of the objection based on unproven facts, the appellant submitted that it was unfair to allow the plaintiff to rely upon alleged defects in the expert's report, with which he had been served prior to trial, when no notice had been given of any such objection.

1. For the reasons given below, the appellant's submissions with respect to the finding of contributory negligence must be accepted, with the result that the judgment must at least be varied, or set aside and a retrial ordered. The precise consequences for the indemnity claim by Wiskich against the appellant are less clear, but Wiskich did not submit that it would be entitled to retain its judgment in any event: rather it conceded the importance to it of maintaining the finding that there had been no contributory negligence on the part of the plaintiff and that it had not been negligent.

Issues on indemnity appeal

1. Although not consolidated with the plaintiff's claim, there was a second proceeding heard concurrently, which involved a claim by the plaintiff's employer, Wiskich, against the appellant, seeking to recover an amount of some $250,000 paid to the plaintiff on account of worker's compensation, pursuant to s 151Z(1) of the Workers Compensation Act. The trial judge allowed this claim in full on the basis that, in the plaintiff's proceedings, he had found no contributory negligence, nor any negligence on the part of Wiskich. The appellant sought to repeat each of its challenges in the damages appeal, other than those relating to the assessment of damages. However, if the appellant were to succeed in reducing the amount of damages payable to the plaintiff, and if the employer were found partly responsible for the damages as finally assessed, the employer's right of indemnity would be limited, as it could only recover the amount by which compensation paid exceeded the contribution it was required to make to the appellant. The indemnity was also capped by the quantum of damages payable to the plaintiff.

Finding in relation to contributory negligence

1. The findings of the trial judge with respect to the mechanism by which the accident occurred were sparse. That was in part due to the fact that, having excluded Mr Johnston's report, there was little objective evidence as to distances, times, speed and lines of sight. For reasons which will be explained below, Mr Johnston's report contained vital information which, if not uncontestable, was at least directly relevant and necessary for an adequate appreciation of the circumstances in which the accident occurred. Nevertheless, it is convenient to deal with the facts by noting the findings of the trial judge and the evidence on which they were based.

1. The description of the physical events leading up to the accident were summarised by the trial judge in the following passages:

"35 At or about 2.00pm on Friday 18 April 2008, the plaintiff had entered the Boral premises ..., parked his truck in a position adjacent to the fuel tank, went to the office to obtain the key to the unloading tank, carried out his measurements of the fuel in the tank with the dipstick, completed the task of transferring the required 10,000 litres of fuel to the tank over the course of some 30 to 40 minutes, and then returned the keys to the office before preparing to return to his truck in order to leave the site. ...

36 During the time the plaintiff was on the site on the afternoon of the accident he had seen the forklift in question travelling around the site on a total of three occasions, whilst laden with bricks in its carrying compartment and also whilst unladen. ...

37 The plaintiff knew that the forklift was being used to transport bricks for stacking on the site. When the forklift was laden with bricks, the bottom bar of its carrying tray or cage was about 150mm from the ground. When it was unladen, the bottom bar of the carrying arms or grabs were located in a much higher position up the mast, and over a metre above the ground.

38 After completing the transfer of fuel and dealing with the resultant paperwork at the site office, the plaintiff left the office, after being there for about 30 seconds. He then left the office via the door through which he had earlier entered. He then looked to the right and to the left along the roadway immediately in front of him, and then proceeded to turn left and to then walk towards where his truck was parked. He was guided in his path of exit by a series of 3 red safety cones and safety tape which indicated by their placement, that he should not enter upon the road directly.

...

40 He said that as he left the office building, he looked to his right and then to his left for any signs of moving vehicles as he had seen the forklift moving about in the area earlier on, and did not see any forklift at that time so he proceeded to walk to his left.

41 The plaintiff walked on the inside of the row of taped red traffic safety cones .... He said that when he walked past the third and last cone, he continued to walk on in a straight line within and guided by the line of those cones, which was not far out from the side of the building. He denied that he had veered to the right of that line into the path of the forklift. I accept his denial, which was uncontradicted by other evidence. He said he had taken some three or four casual steps forward, after passing the third safety cone, and as he did so, he was hit from behind by the forklift truck which was travelling in the same direction of travel as he had been walking.

...

46 Immediately before the accident, the plaintiff's position on the roadway was about 1 metre to the right of an adjacent row of oxy-acetylene gas cylinder bottles at the side of the road to his left, and in line with the safety cones that he had passed those safety cones. The roadway in question was some 8 or 10 metres in width. The roadway covered a distance of about 4 to 6 metres in the plaintiff's general direction of travel. There was no marked walking path reserved for pedestrians beyond the position of the last of those safety cones.

47 The forklift approached the plaintiff from behind and the plaintiff had no notice of its approach. The forklift truck was not accompanied by a spotter, or if it was, that spotter was not identified in the evidence. The forklift truck did not stop within 3 metres of the plaintiff before the impact occurred.

48 In those circumstances, the forklift continued on its forward journey towards the plaintiff and it struck him from behind, in what to him was without doubt a terrifying incident. After the forklift struck the plaintiff it continued moving on, dragging the plaintiff along with it for several metres under a part of the grab bar of the forklift. The plaintiff's evidence on this event was at T44.6 to T44.32, as follows:

'Q. .... What happened from then?

A. As I was walking, I was hit from behind. I fell down on the ground and I rolled onto my back and I seen the cage coming over my head and I looked at the truck. It was coming closer and I seen the wheel coming towards me and the front of the truck hit me and my face was very close to the wheel and I thought I was going to die.

Q. Did you say anything?

A. I was - at that time I started to scream.

Q. And did the movement of the vehicle continue or did it stop?

A. No, sir. It kept on approaching.

Q. And you were still underneath?

A. Yes, sir.

Q. Were you holding onto something?

A. At that time, no. When it hit me at the front and I seen the wheel coming, I pushed off and I kicked off and I managed to grab - I had to reach up and managed to grab the bottom of that bar of the cage.

Q. And are you able to say how far you travelled in that position underneath the vehicle before it came to a stop?

A. I would have been half way between the door and the corner of the building, which is probably about 15 metres. So I'd say several metres.'"

1. In order to understand the description of the incident it is necessary to have reference to some of a set of photographs which were admitted as Ex C. It is also helpful to locate the area by reference to an aerial image which was extracted by Mr Johnston from Google Maps and included in his report. A selection of the photographs, together with the aerial image are annexed to this judgment.

1. The source of the photographs was not revealed in the evidence, but it is clear from the date marked on each that they were taken on the afternoon of the accident. (Photograph 3 includes a police officer, suggesting that the photographs were taken very soon after the accident, as the police were called immediately.) Importantly, the trial was run on the basis that the forklift which appears in the photographs had not been moved from the point at which the driver stopped the machine upon hearing the plaintiff scream.

1. Photograph 12 shows the door to the office out of which the plaintiff came, turning to his left, walking inside the area marked by the three safety cones and the striped safety tape. Photograph 8 shows the pavement along which he walked, with the forklift in the position where it came to rest. Beyond the forklift a flat roof can be seen which covered the fuel depot. The plaintiff's truck, to which he was returning, was placed somewhere in the area of the fuel depot, though not visible in the photograph. (The structure appears more clearly in photograph 11, with the safety tape visible in that photograph having been placed around the forklift after the accident.)

1. A separate photograph (identified as Ex 2) shows the view of the paved area with bricks stacked on pallets, taken from inside the doorway through which the plaintiff left the office. Photograph 2 is a view looking in the same direction as Ex 2, but taken from just outside the door. It shows, immediately opposite the doorway, a stack of pallets with paved areas accessible by forklift on either side. On the far right of the photo is the corner of a roofed area which was part of a large undercover section of the works. One of the assumptions made by Mr Johnston in his report was that the forklift in question had come from under that roofed area, travelling straight across the front of the doorway. In fact, it is probable on the basis of the evidence given of the plaintiff who had watched the forklift operating while he was delivering fuel, that the forklift in fact came down the right hand open area shown in photograph 2, between the stack of bricks immediately opposite the door and the edge of the covered area. The forklift then turned to its right, across the front of the doorway, travelled the length of the building parallel to the plaintiff's walkway and commenced to turn left at the end of the building, as indicated by the angle at which it came to rest.

1. Photograph 13 provides a view of the forklift from the front. The yellow metal vertical tines, with a bar across the bottom, were used to hold several pallets of bricks. At the time of the accident, the forklift was returning, unladen, to collect further pallets. The plaintiff was struck in the back by the yellow bars, presumably towards the left hand side, as indicated by the X on the lower "grab bar" marked on photograph 10.

1. There were a number of mysteries surrounding the incident which were neither resolved nor referred to by the trial judge. Two may be noted but must be put aside without being resolved: the third is of critical importance.

1. The first issue concerns the manner in which the plaintiff suffered his injuries. As noted in the extract at [48], the plaintiff described being hit from behind, falling to the ground and rolling onto his back, at which point he saw the cage coming over his head. He then said "the front of the truck hit me and my face was very close to the wheel". The injuries suffered were primarily to the plaintiff's left chest and flank. He suffered fractures of several of his left ribs both anteriorly and laterally: Judgment at [61]. It is possible that these injuries, which did not require him to stay in hospital overnight, were caused after he had been thrown to the ground, and perhaps whilst he was dragged by the forklift, after catching hold of the grab bar to avoid being run over by the wheels.

1. The plaintiff's description of the forklift being driven whilst unladen (as seen by him on two previous occasions) was that the cage was lifted approximately one metre off the ground, whereas, when loaded, it was lower, leaving only approximately 150mm between the bottom of the grab bar and the ground. If the bar had been one metre above the ground when it hit the plaintiff, it seems unlikely that he would have been able to catch hold of it in order to save himself from being run over. On the other hand, the bar must have been high enough for the front bar to pass over him (he was a bulky man) so that he ended up under the cage. Again, the height cannot have been great because the driver, once he realised what had happened, stated that he lifted the cage in order to release the plaintiff. It is not possible to identify the precise events involved in the sequence of the accident.

1. The second issue, which also cannot be resolved, is whether the driver saw the plaintiff before he hit him and, if so, why he failed to avoid him. Mr Mohr, the driver of the forklift, was not called to give evidence. However, the plaintiff tendered a statement signed by him in a notebook of the attending police officer. The statement was dated the day of the accident, at 4.30pm. Although Mr Mohr did not say that he did not see the plaintiff before the accident, that may be inferred from his description of the accident, the relevant passage from which is set out in the judgment at [50].

1. Mr Mohr stated that he had been travelling at approximately 10km/h (although the trial judge translated the handwriting as an "estricted speed", the preferable reading was "at an estimated speed"). Mr Mohr said that he had gone approximately 10-15 metres past the door to the workshop when he heard the scream.

1. At that speed, the forklift would have covered approximately three metres per second. It would therefore have taken 3-4 seconds to cover the distance from the doorway out of which the plaintiff came until the point of impact. It is likely that the plaintiff would have been in view before the forklift passed the doorway. However, as demonstrated by photograph 6, taken from inside the forklift looking in the direction of travel, the driver's vision was somewhat restricted. In any event, there is no issue as to the negligence of the driver for the purposes of the appeal and the question of when he first saw the plaintiff (if he did) need not be pursued further.

1. The third issue is central to the case. The issue is where the plaintiff was at various points and why, as he asserted, he did not see the forklift before it hit him. However, before considering that question, it is convenient to note the acceptance by the trial judge of his evidence that he did not hear the forklift. The trial judge found that the plaintiff was wearing earplugs, and that the noise of the pumping equipment on his truck in "high idle mode" would have made it unlikely that he would have heard the engine of the forklift: at [43]. Those findings were not challenged. The case for the appellant was run on the basis of what he saw, not what he heard or should have heard.

1. At the point at which he came out of the office doorway, he said that he looked both to right and left, but did not see the forklift which he had earlier noticed operating in the area. With the assistance of the photographs, the plaintiff gave extensive evidence as to the three occasions on which, whilst unloading his fuel, he saw the forklift operating: Tcpt, 23/04/12, pp 30-38. On the first (and third) occasions, the forklift, carrying a load of bricks, came from the area into which it appears to have been travelling at the time that it hit him. Thus, viewed from his position at the fuel depot, whilst facing the doorway of the office, the forklift when laden came from his right; the driver then turned the forklift to its right so as to travel towards the doorway. When it passed the doorway, it made a left hand turn between two stacks of bricks, which the plaintiff indicated by marking an X on photograph 9: Tcpt, p 33. Because the forklift undoubtedly came past the office doorway and hit the plaintiff from behind, there were, as it appeared from the photographs, only two courses the driver could have taken. One was to come out from the pavement to the right of the large stack of pallets visible when looking out from the doorway (see photograph 2), or from the covered area further to the right looking out from the doorway (as shown in photograph 9). As will be seen shortly, Mr Johnston estimated a time lapse of 10 seconds from when the plaintiff came out of the doorway until the point of impact. However, even without that evidence, a similar calculation could readily be made, using the speed at which Mr Mohr estimated he was travelling. It is difficult to see how the forklift could not have been within the visual field of the plaintiff, had he indeed looked to the right (as he said he did) when he came out of the door. He did not need to be warned to lookout for forklifts: he knew there was a large forklift operating in the area and had observed its operations during the half hour he had been unloading fuel.

1. These considerations were directly relevant to any assessment of contributory negligence on the part of the plaintiff. They were not addressed by the trial judge.

1. There was a further implausibility about the findings made. As appears from the photographs, the line of three safety cones ended well before the corner of the building along the side of which the plaintiff was walking. The plaintiff said that he was hit after taking some three or four steps past the third cone and without stepping to the right of the line of the cones.

1. That description is implausible for a number of reasons. First, it would place the left hand extremity of the cage in front of the forklift within a metre of the oxyacetylene cylinders beside which the plaintiff was walking. It would also mean that the forklift would have come close to knocking over the safety cones. Each of those propositions is highly implausible. Further, it is clear from the position of the forklift (as shown, for example, in photograph 1), first, that the point of impact must have been well beyond the area of the safety cones and, secondly, that the course taken by the forklift, before it started to turn to its left, must have placed it (as might be expected) in the middle of the paved area along which it was travelling. Again, these difficulties were not addressed by the trial judge.

1. It is clear that, in order to return to his truck, the plaintiff was required to walk down the line of the building (no doubt inside the safety tape for as far as it extended) and then cross over the paved area in the direction of the fuel depot. It seems likely that he had already commenced to make that crossing when he was struck, given the angle of the forklift, which had already started to turn to the left to round the corner of the building. Accordingly, at that point the plaintiff must have been in an open area in which he knew a large forklift was operating. Assuming (in his favour) that he could not expect to hear the forklift approaching, taking reasonable care for his safety would have required that he look both behind him and to his left before crossing the open area. Had he done so, he would inevitably have seen the forklift approaching and could have stepped out of the way. Again, this consideration was not addressed by the trial judge.

1. For these reasons, the assessment of contributory negligence miscarried and the finding that there was none must be set aside.

Rejection of expert report

1. The assessment of the finding with respect to contributory negligence, as set out above, has been undertaken generally by reference to the exhibits admitted at trial and with only minor reference to the material in Mr Johnston's report. However, it is far easier to address the issues which were ignored by the trial judge if one has Mr Johnston's report than if one does not. It is thus quite possible that the rejection of the report contributed to the failure to assess the plaintiff's evidence against the objective circumstances surrounding the accident.

1. Before addressing the judge's reasons for rejecting the report, it is necessary to give some indication of its content. Broadly speaking, the report was in a standard form for a motor accident report. The first section set out the material with which the author had been briefed, critical parts of which, relating to the circumstances of the accident, were extracted in section 2. Section 3 was a "description of the physical environment" which included the aerial image from Google Maps and details of measurements taken by Mr Johnston on the ground. He stated at paragraph 3.12:

"I have also been provided a number of contemporaneous images showing the apparent rest position of the involved forklift post incident. While this is not the exact point of impact as it [seems] that the pedestrian was dragged for a short distance it provides a guide to the approximate point of impact as being on a trajectory probably a few metres back from this rest position."

1. Section 4 described the forklift, the author noting that neither the actual forklift nor one of the same model was operating at the site at the time of his inspection. He stated at paragraph 4.4 that he had conducted a "speed assessment" on an available forklift. Section 5 was described as "incident analysis". It provided calculations of the time it would have taken the plaintiff to walk from the doorway to the point of impact and the distance the forklift would have covered in the same time. As will be seen from figure 5.1 (set out in the appendix) Mr Johnston estimated that the plaintiff would have taken 10 seconds to walk from the doorway to the point of impact at the corner of the building. He assumed in that figure that the forklift which hit the plaintiff was coming out from under the covered area, indicating by his diagram that it would have been at the edge of the covered area at the time the plaintiff came out of the doorway. As has been noted above, the description given by the plaintiff indicated that on its prior trips, the forklift had not entered the covered area, but had turned into or out of the open area between the covered walkway and the line of pallets immediate across from the doorway. Figure 5.1 does not describe such a route, but it may readily be inferred that, in order to reach the point of impact at the time that the plaintiff reached that point, the forklift would probably already have been moving in the general direction of the doorway down the open area. In combination with photograph 2 taken on the day of the accident, it is highly implausible that, had he looked in the direction from which he might have expected the forklift to be coming, he would not have seen it (as Mr Johnston said in a passage set out below) .

1. Mr Johnston also considered whether there may have been difficulties for the driver to see a pedestrian. At paragraphs 5.18-5.20, he considered the visibility of a pedestrian, both in high contrast yellow or wearing more subdued colouring. (The trial judge accepted that the plaintiff was wearing a high visibility safety vest.)

1. Section 7 provided the response to specific questions. These were largely statements of inferences which could be readily be drawn from the descriptive material in the incident analysis. However, relevantly for present purposes, it is convenient to set out question 6 and the answer:

"6 If you apply the Worker's version of events and the Forklift came from between brick stacks directly in front of the workshop door, where would that place the forklift at the time the Worker came out of the workshop, having regard to where the Worker was eventually struck?

Immediately in front of the pedestrian probably no more than about 15 metres away."

1. The brief reasons of the trial judge provided little explanation as to why this report was not admissible. As the plaintiff's counsel submitted to this Court, the substance of the reasons were to be found in the judge's adoption by reference of the arguments advanced in support of the objection. That discussion covered a number of pages in the transcript: Tcpt, 27/04/12, pp 243-250.

1. The first objection identified the following "unproven assumptions", namely (a) the forklift emerging from under the covered section, (b) the speed achieved by the forklift involved in the accident would have been the same as that achieved by "an entirely different forklift", (c) the absence of evidence that the road surface was the same (raised by the trial judge). Secondly, the trial judge said he did not need assistance of the kind which purported to be provided by Mr Johnston. Thirdly, there was said to be "speculation", the examples being references in the report to assumptions as to how particular statements would be read. Counsel for Wiskich submitted that there was speculation as to "the exact point of impact" (Report, paragraph 3.12, referred to at Tcpt 249), whilst the trial judge described as "speculation" the assumed typical walking pace of an adult male.

1. Each of these criticisms was without substance and should have been rejected. The correct starting point, as noted by counsel for the plaintiff, was the purpose of the report, namely "to show the time and location of the forklift relative to Mr Cosmidis' movements": Tcpt, p 243(25). To the extent that the report included measurements and stated its assumptions as to speed, it should have been of considerable assistance to the trial judge (as it is to this Court). It would no doubt have been appropriate to exclude evidence of the "speed testing" with a different vehicle, but that aspect was irrelevant. Mr Johnston used a speed of 10km/h which was the speed indicated by Mr Mohr in his statement, which was tendered by the plaintiff. Paragraph 4.4 of the report, which dealt with the "speed assessment" could properly have been rejected.

1. Whether or not the forklift came from the direction indicated by the plaintiff or from the covered area was a fact to be found by the trial judge at the end of the case. As noted above, the report dealt with both possible lines of travel. As the trial judge did not find it necessary to chose between the possible journeys of the forklift immediately prior to the accident, nothing should have turned on this objection. In any event, the provision of alternatives within an expert report is an entirely appropriate way to deal with underlying facts which are in contest.

1. The trial judge referred to an assumption that the road surface had not changed. That was indeed an assumption, but an entirely reasonable one. No party suggested that there had been any material change in the road surface nor was there any indication as to what a material change would have been or how it would have affected any fact in issue.

1. The trial judge was clearly concerned that the evidence relied upon by Mr Johnston placed the point of impact beyond the corner of the building, subject to some allowance for the distance the plaintiff was dragged after he was hit. The trial judge appears to have realised that the use in the report of the position of the forklift demonstrated that the collision cannot have occurred at the point described by the plaintiff although he described "the evidence" as being "quite clear": Tcpt, p 246(20). Further, despite the evidence of a Mr Roditis, who said that the plaintiff had admitted to him immediately following the accident that he had seen the forklift, the judge said that it was "quite clear the plaintiff didn't see the forklift just prior to the impact": Tcpt, p 246(42). When counsel for the present appellant noted that the trial judge appeared to have already rejected the evidence of Mr Roditis, he denied it.

1. As to the matters of speculation, no doubt Mr Johnston could have been cross-examined as to his estimation of distance between the doorway and the point of impact and could have been cross-examined as to the basis for a typical adult male walking pace of about 1.6 metres per second. To dismiss these matters as "speculation" was to trivialise significant evidence relevant to an understanding of the accident.

1. It is not necessary for present purposes to refer to other aspects of the report which related primarily to the potential negligence of the appellant and its driver. With the exception of paragraph 4.4 (the speed assessment) the material discussed above was all relevant, should have been helpful to the trial judge, and was admissible, either under s 78 or s 79 of the Evidence Act 1995 (NSW). The objections were largely tendentious and should have been dismissed as such.

1. In the course of submissions, the appellant noted that, as with the rejected cross-examination discussed below, no prior warning had been given of an intention to object to any part of Mr Johnston's report, let alone the whole of it. It was accepted, however, that there was no requirement in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") as applicable in the District Court, or in the District Court's own practice notes or standard directions, to giving notice of objections to expert reports in advance of a trial.

1. Although courts often take a bleak view of the value of expert reports, especially those which relate to mundane matters, the report in the present case was valuable because it provided aerial images which assisted in understanding the physical environment in which the accident occurred (assuming that such material required to be tendered) and measurements of time, distance and speed which allowed some greater insight into the reasonableness of the behaviour of each party. For the most part, the author's assumptions were clearly stated, as was his expertise. To the extent that he expressed opinions which were either not supported by the assumptions or calculations or were beyond his expertise, objection to particular parts of the report could readily have been taken. Sometimes objection may be taken to the whole of a report on the basis of a lack of expertise on the part of the author, but that was not this case. In the event, it is unclear whether forewarning would have assisted in a more rational assessment of the objections taken: generally speaking, however, forewarning of objection should be given, particularly in circumstances where, if the objection were meritorious, there might be an opportunity to rectify the deficiency, prior to trial, so that a valid objection does not cause the objector to suffer from further evidence being called at trial of which the objector has no warning. At least in some cases, the failure to give timely warning of valid objections to an expert report may form the basis of a successful adjournment application, at the expense of the objector.

Rejection of cross-examination

1. Restrictions are imposed by the Workers Compensation Act on claims for damages brought by a worker against his or her employer. Thus, damages may only be awarded for past and future economic loss (s 151G) and only if the injury results in at least 15% permanent impairment (s 151H). Thus, assuming the plaintiff would have passed the latter threshold, he would not have recovered the significant amounts for non-economic loss and domestic assistance which were awarded by the trial judge. That circumstance was no doubt a consideration in the decision by the plaintiff not to sue his employer.

1. The appellant, on the other hand, was a third party tortfeasor. Although it was accepted that the damages recoverable by the plaintiff from the appellant were regulated by Ch 5 of the Motor Accidents Compensation Act 1999 (NSW), as long as certain thresholds were passed, the plaintiff was entitled to recover a larger amount, including damages for non-economic loss and for past and future domestic care.

1. Where both the employer and the third party tortfeasor are jointly liable, but the worker sues only the third party tortfeasor, the Workers Compensation Act provides for the likely consequence of the separate bases of assessment, so as to prevent the employer being required to pay a contribution greater than that which would have been applicable if damages had been assessed under Pt 5 of the Workers Compensation Act, but also ensuring that the third party tortfeasor is not prejudiced by obtaining a reduced contribution from the employer, assessed as a proportion of the damages calculated under Pt 5 of the Workers Compensation Act. The course taken is to allow the third party tortfeasor to recover from the employer a contribution calculated at the lower rate, but to reduce the liability of the third party tortfeasor to the plaintiff by the difference between the full amount of contribution and the lower amount recoverable. That effect is seen to be fair to the worker, who does not avoid the limitation on damages recoverable under Pt 5 of the Workers Compensation Act by seeking to recover from the third party tortfeasor that share which should properly be the responsibility of the employer. However, that mechanism provides a significant incentive for the worker to minimise the apparent liability of his or her employer.

1. In accordance with this scheme, the appellant pleaded in its defence to the proceedings brought by the plaintiff that any damages awarded should be reduced according to the statutory formula in s 151Z(2) of the Workers Compensation Act. The relevant pleading was in the following terms (Defence, par 7):

"Further, and in the alternative, the First Defendant [the appellant] says that in the event it is liable to the Plaintiff (which is denied) then any damages so payable should be reduced by the Plaintiff's employer's negligence and the First Defendant relies upon s 151Z of the Workers Compensation Act 1987 (NSW) as a defence to the Plaintiff's claim for damages."

1. Against this background, it is convenient to turn to the issue raised in the appeal with respect to the cross-examination of the plaintiff. Early in the cross-examination, counsel asked about a visitor's pass which the plaintiff had to sign in order to obtain access to the appellant's site. The purpose of the cross-examination, as revealed by its later progress and by submissions made by the appellant at trial, was to establish that the plaintiff knew that there were conditions of entry which were recorded on the visitor's pass and which included a statement that "Forklifts have right of way". Nothing turned on that line of cross-examination for present purposes but, having obtained an acknowledgment that the statement was contained on the document, the cross-examination then took a different direction (Tcpt, p 79(38)):

"Q. After the first occasion when you went to the site with your boss -

A. Yes.

Q. - did you ever have any discussions with him about the fact that, on this Boral site, forklifts have right of way."

1. At that point objection was taken by counsel for the plaintiff in the following terms:

"Your Honour, there is, in the defence, a general reliance on 151Z(2); however there are no particulars alleged in that document going to anything that might be regarded as an allegation of negligence on the part of Mr Cosmidis' employer and, in the absence of any particulars of such negligence, I object to any evidence that's specifically led or that might go to any notional, in my case, negligence on the part of the employer for the purpose of 151Z(2)."

1. Following considerable discussion, the objection was upheld; that in turn led to an application by the appellant to be permitted to amend the defence to provide particulars of negligence on the part of the employer. That application was rejected on the basis that it would have required an adjournment, which the judge was not prepared to grant.

1. The appellant challenged this series of decisions on the basis that the overall effect was to cause it unfair prejudice. The challenge involved a number of separate steps. Chronologically, the first complaint was that at no point between the filing and service of the defence (on 1 July 2011) and the commencement of the cross-examination of the plaintiff (on 24 April 2012) was any point taken as to the inadequacy of the pleading with respect to s 151Z(2). The failure to forewarn the appellant of the intention to take the point should either have resulted in the objection being dismissed or, if particulars were to be required, warranting an adjournment, it would provide support for the grant of the adjournment, despite potential prejudice to the plaintiff.

1. Secondly, the appellant challenged the contention that particulars were required of the basis on which it alleged negligence on the part of the employer. It pointed out that s 151Z(2) outlined a mechanism for adjustment of damages, as explained above, which operated where there had been no claim made by a worker or the defendant against the worker's employer and was not, in its terms, expressed to be a defence, as compared with contributory negligence (which was a defence and had been particularised).

1. This last submission, as the appellant recognised, was inconsistent with the reasoning of this Court in Benton v Scott's Refrigerated Freightways. In that case, Campbell JA stated, with the agreement of Bell JA and McDougall J, at [33]:

"The material facts that would need to be established for a claim under section 151Z(2)(c) would include identification of the person alleged to be the employer, the material facts by virtue of which that relationship of employment was alleged to exist, the material facts which showed that the worker had taken or was entitled to take proceedings independently of the Act to recover damages from the employer, and any material facts that entered into the quantification of the reduction that was sought in section 151Z(2)(c). As ... the contribution that the non-employer tortfeasor could recover from the employer but for Part 5 of the Workers Compensation Act, and the contribution that the non-employer tortfeasor is entitled to recover from the employer under section 151Z(2)(d) both depend upon the relative causal efficacy and culpability of the actions of the employer and the non-employer tortfeasor, the facts material to those matters, and any special facts, that if not pleaded could take the other party by surprise, would need to be pleaded."

1. The appellant submitted that this passage was not central to the reasoning in the case and did not affect the outcome. Thus, although the appellant gave notice of its intention to challenge the correctness of that passage, it also invited the Court to depart from it in circumstances where it was not binding.

1. There is no small irony involved in the respective positions of the parties in relation to this issue. Thus, on the one hand, the appellant objected to the suggestion that it should have given particulars of its allegation against the employer, whilst submitting that the respondent should have given notice of their objection to the inadequacy of the pleading. The respondent's position was the obverse in both respects: he denied any obligation to give notice of his objection, but asserted that the appellant should have given notice of the particulars alleged. There is substance in the complaints on both sides. Dealing first with the inadequacy of the pleading, whether or not it was part of the operative reasoning in Benton, there can be little basis for disparaging the proposition that, if the defendant wishes to rely upon the benefits it may derive from s 151Z(2) of the Workers Compensation Act, it should identify the material facts relied upon which, if not pleaded, could take the other party by surprise. What those material facts may be in a particular case will depend upon all the circumstances. Those stated in the first sentence of [33] in Benton should be understood as exemplifying the kind of facts which may be material, rather than as a checklist applicable to every case. For example, there will often be no doubt as to the identity of the employer. In Benton itself there was doubt as to the identity of employer, but it was held not to matter: at [50].

1. Further, in Benton, there was no doubt as to the alleged breach of duty (namely that the step on the side of the truck from which the plaintiff fell was defective) but only as to which of a number of related companies was responsible for it. The present case is rather different: the plaintiff was a driver who attended various premises to deliver fuel. His employer had no control over those premises. This was not a case involving defective equipment supplied by the employer (or a related party) to the worker; nor was it a case where the worker was employed by a labour hire firm to work at a particular site. The real problem for the appellant in the present case was that it had no information on which to base any allegation of a breach of duty by the worker's employer.

1. On the other side, the appellant's complaint that it was ambushed through the failure of the plaintiff to give prior notice that it objected to any reliance upon s 151Z(2) has substance. It constituted a contravention of the principles stated in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116. Nowlan involved an application by a person injured in a motor accident to commence proceedings out of time. The critical issue on which the applicant had failed before the primary judge was that the delay had caused prejudice to the defendant which would not be able adequately to separate the potential non-tortious causes of the applicant's medical conditions. The applicant claimed that he had been ambushed by the question of prejudice being raised at the hearing, in the absence of any medical evidence served by the defendant prior to the hearing. Of some importance to the outcome of the appeal was the tender of a medical report for the applicant indicating that a causal connection between the accident and the current disabilities could still be established. The applicant suggested that it should have been for the defendant to establish prejudice, a submission which Heydon JA (with whom Mason P and Young CJ in Eq agreed) described as almost certainly not correct: at [7] and [15]. Despite that, Heydon JA referred to attitudes reflected in "the forensic system of an earlier age" colourfully described by Wells J in Donaldson v Harris (1973) 4 SASR 299 at 302 as involving "the treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial (or contest) in the presence of the judicial umpire": Nowlan at [21]. Heydon JA remarked such an approach to the conduct of applications to extend time, or to be excused for delay, should cease: at [22]. The reasons which followed, at [23]-[31] have cogency beyond applications to extend time. That reasoning need not be repeated: suffice it to say that the appellant's complaint in the present case was justified.

1. Accepting that the conduct of both parties was at fault, it is necessary to consider what consequences flow in the present case. The particular line of cross-examination in fact had a dual purpose: if the appellant could establish that the plaintiff had been given relevant instructions by his employer which he had not followed, that would augment its case on contributory negligence; if it could establish that the employer had given no useful instruction, that might ground a claim for breach of duty on the part of the employer. That the questioning might be relevant to contributory negligence was not clearly articulated, nor appreciated by the trial judge when the matter was first debated. (The judge referred, somewhat confusingly, to "contributory negligence under 151Z": Tcpt, p 81(34).) Later in the cross-examination, a similar question with respect to instructions given by the employer was asked and again objection was taken: Tcpt, pp 154-155. On that occasion, counsel for the appellant emphasised its potential relevance to contributory negligence, which had been pleaded and particularised. The particulars included failure to keep a proper lookout for the forklift, failure to take care for his own safety and failure to mark his vehicle so that others could keep a specific lookout for him. Perhaps surprisingly, the question was again rejected: Tcpt, p 156(20).

1. If it will be necessary to remit the matter for a further hearing, it will be unnecessary to determine the correctness of the rulings with respect to the cross-examination. Before any retrial, it is possible that the appellant may seek and be granted leave to amend its defence; even without that step, it is possible that the judge at a rehearing would take a more flexible view with respect to the permissible scope of cross-examination. If, on the other hand, a retrial is not a necessary consequence of setting aside the finding with respect to the absence of contributory negligence, because this Court could substitute its own finding, it is necessary to consider whether there are other reasons to remit the case to the District Court.

Relief with respect to liability grounds

1. The conduct of the trial having miscarried, both with respect to the assessment of the evidence relevant to contributory negligence and the rejection of Mr Johnson's report, so far as it was relevant to contributory negligence, the question is what relief should be granted. This question has two aspects: first, there is an issue as to whether it is necessary to remit the matter for a further trial, or whether this Court can make the necessary findings of fact. Secondly, if it is necessary to remit for a retrial, there is a separate question as to whether the whole matter should be remitted or whether the assessment of damages should be allowed to stand on the basis that it is unaffected by the errors with respect to contributory negligence.

The conclusions reached with respect to contributory negligence

1. This case falls within the category identified in Fox v Percy [2003] HCA 22; 214 CLR 118 at [29] as involving findings contrary to compelling inferences based on uncontested or objectively verifiable factors. Although the evidence of the plaintiff tended to support the findings made by the primary judge, the position of the forklift, the apparent point of initial impact and the implausibility of the suggestion that the plaintiff had looked to right and to left after he came out of the office but did not see the offending forklift anywhere, strongly favour a different conclusion. The finding of the primary judge reflected a failure to come to terms with the conflicting and credible evidence favouring a different conclusion. There are two courses open. One is that this Court may substitute its view as to an appropriate finding with respect to contributory negligence; the alternative is that there must be a retrial. In Fox v Percy itself the Court found it unnecessary to remit the matter for retrial: Percy v Fox [2001] NSWCA 100.

1. The appellant, in oral submissions, did not invite this Court to form its own view, apparently because it sought to cross-examine the plaintiff further on the basis of Mr Johnston's report. That is an unattractive proposition. As has been noted, the substantial assistance proffered by Mr Johnston was not so much his opinions as the underlying measurements and calculations on which they were based. Not only could the plaintiff properly have been cross-examined on the basis of this material whether or not the report was admitted in evidence, but his cross-examination had been completed before the report was tendered.

1. The plaintiff did not indicate that, if this Court considered the rejection of the report to be erroneous, he would have wished to cross-examine Mr Johnston. There are two reasons for thinking that no cross-examination would have eventuated. The first was that Mr Johnston had not been required for cross-examination, a step which should have been taken if cross-examination were intended in the event that the report was admitted. Further, there was no material presented by the plaintiff which suggested any contest in relation to the underlying measurements and calculations undertaken by Mr Johnston. Thirdly, as will be shortly noted, the plaintiff did not seek to obtain the presence of the appellant's medical experts for cross-examination, but was content to leave the conflicting reports to the trial judge to be resolved by him as best he could. In short, the plaintiff having placed all his eggs in the basket of inadmissibility at trial, justice does not necessarily require that he be given the chance to cross-examine Mr Johnston if the report is to be admitted.

1. There remains a difficulty in the way of this Court determining the question of contributory negligence. Although the appellant made relatively extensive written submissions on the issue, neither party addressed orally on the appropriate result, no doubt because the appellant did not seek to have this Court determine that issue. That difficulty could be resolved by allowing the parties an opportunity to present short further submissions in relation to the question of apportionment of responsibility for the accident. There remains a question, however, as to whether the appellant should have the opportunity to pursue the line of cross-examination as to what instructions the plaintiff had been given by his employer, assuming it was wrongly foreclosed.

1. The appellant's case is that, broadly speaking, the question could have received two kinds of answer. First, the plaintiff might have said that his employer gave him reasonable instructions in relation to the dangers associated with moving around the appellant's site where forklifts were operating, rendering it essential to comply with safety warnings and look in all directions before crossing open areas of pavement. Such a direction might exonerate the employer, but leave open a submission as to contributory negligence on the basis that the direction had not been complied with. On the other hand, if the answer was that no significant instructions had been given with respect to safety at the site, the case in contributory negligence would not have been advanced, but a case against the employer might be.

1. It appears not to have been the plaintiff's case at any stage that he was unaware, either of the dangers associated with forklifts or that there was a forklift operating in the area on the afternoon in question. Accordingly, the proposed line of cross-examination was unlikely to improve greatly the strength of the objective case on contributory negligence. Therefore, the refusal to allow such questions did not occasion, in relation to the issue of contributory negligence, a substantial wrong or miscarriage sufficient to justify an order for a new trial, pursuant to UCPR 51.53(1).

1. Admission of specific parts of the Johnston Report might have had a bearing on forensic decisions that Mr Cosmidis made as to the calling of evidence in reply. If parts of the Johnston Report had been admitted, as they ought to have been, counsel for Mr Cosmidis would then have had the opportunity to make a forensic decision as to whether to call evidence in reply, so as to rebut, or respond to, whatever had been admitted from the Johnston Report. That was particularly so where the Johnston Report and Mr Cosmidis' evidence were at odds as to how the accident actually happened. In any event, the material contained in the Johnston Report could affect the question of Mr Cosmidis' credit. That question of credit could in turn affect findings as to how the accident occurred and thereby the question of contributory negligence.

1. Having regard to the way in which the appeals have been conducted, the appropriate course now would be for the parties to be given an opportunity to supplement their submissions on contributory negligence and, if they think appropriate, to seek a further hearing on that issue. When making submissions as to a further hearing on the question of contributory negligence, the parties should also make submissions as to whether there should be further hearing on the question of Wiskich's negligence.

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Amendments

07 March 2014 - Typographical error in catchwords

Amended paragraphs: Coversheet

Decision last updated: 07 March 2014