Griffiths v Kerkemeyer (1977) 139 CLR 161
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newman v Nugent (1992) 12 WAR 119
Sutherland Shire Council v Heyman (1985) 59 ALJR 564; 60 ALR 1
Van Gervan v Fenton (1992) 175 CLR 327
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Astley v Austrust Ltd (1999) 197 CLR 1
Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118
Chandler & Ors v Water Corporation [2001] WASC 166
Chappel v Hart (1998) 195 CLR 232
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
F v R (1983) 33 SASR 189
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6
General Cleaning Contractors Ltd v Christmas [1953] AC 180
Graham Barclay Oysters Pty Ltd v Ryan (2003) Aust Torts Reports 81-681
Graham v Baker (1961) 106 CLR 340
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Kondis v State Transport Authority (1984) 154 CLR 16
McLean v Tedman (1984) 155 CLR 306
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
New South Wales v Lepore (2003) Aust Torts Reports 81-684
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
O'Connor v SP Bray Ltd (1937) 56 CLR 464
Pyrenees Shire Council v Day (1998) HCA 3
Rogers v Whitaker (1992) Aust Torts Reports 81-189
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board (1985) AC 871
Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wylie v South Metropolitan College of TAFE [2003] WASCA 34

JENKINS DCJ: The plaintiff, Trevor Paul Cavanagh, seeks damages for personal injuries that he allegedly suffered on 13 December 1995 when he fell from a sheep crate whilst employed by the defendant, Syd Matthews & Co Pty Ltd ("the fall").
The plaintiff's action is in negligence, breach of statutory duty and contract.
The particulars of negligence that are alleged against the defendant are as follows:
"5The Defendant its servants and/or agents were negligent in that it or they:
(a)failed to provide a safe system of work;
(b)exposed the Plaintiff to risk or damage or injury which it knew or ought to have known;
(c)required, allowed or permitted the Plaintiff to off load from the trailer of the truck without a safety harness;
(d)failed to supervise and/or instruct or train the Plaintiff in a safe system of unloading sheep from the trailer of the truck;
(e)failed to warn the Plaintiff of the dangers of injury arising from unloading sheep from the trailer of the truck;
(f)failed to provide the Plaintiff with adequate manpower to assist him unloading the sheep from the truck;
(g)failed to provide the Plaintiff with a suitable scaffold, ladder, platform, walkway or lift to facilitate the safe unloading of sheep from the four decks of the truck."
As I have not found it necessary to consider the claims for breach of statutory duty or contract I will not state their particulars.
The defendant does not admit the accident. It denies that the plaintiff suffered injuries, as alleged, and says further that if Mr Cavanagh did suffer injuries as a result of the fall it was through his own negligence. There is a further plea that any current injuries or disabilities are as a consequence of the plaintiff's pre‑existing, degenerative or other medical condition of his spine, right heel, right ankle and left shoulder and not due to the fall.

Facts

I find the following facts proven unless otherwise stated.
The plaintiff was born in 1960 and accordingly is 43 years of age. He was born and raised in Kojonup and is one of seven children. He has three brothers from whom he is estranged. After completing year eight at high school he entered the work force and up until 1994 he was employed in the Kojonup area. At various times he was a stock manager, shearer, truck driver and sheep carter. He learnt to shear sheep in 1978‑9. In the early 1980's he worked for the defendant as a truck driver carting livestock, grain and fertiliser. He resigned from that employment in 1982 due to a dispute with Neville Matthews, one of the defendant's principals. In 1985 he returned to shearing, which he did up to 1993.
By 1994, as a consequence of his employment history and his upbringing as the son of a truck driver, he had extensive experience and knowledge of the usual procedures for carting sheep in South Western Australia. His father had been employed by the defendant as a truck driver carting livestock and the plaintiff had learnt some of the procedures from him. He gained further knowledge and experience as a consequence of his own employment in the industry. However, he had not been directly employed in the industry since 1982. When, in this judgment, I use the word "industry" I am referring to the business of sheep carting or transporting by road in Western Australia.
In 1988 Mr Cavanagh married his wife, Fauna, and they subsequently had two children who are now 14 and 11.
The plaintiff enjoyed some sporting activities, including squash and occasional polocrosse. Other sporting activities were curtailed because of previous injuries. The issue of the plaintiff's previous injuries will be dealt with in more detail later in this judgment.
In 1994 the plaintiff recommenced work with the defendant as a truck driver, carting livestock (including sheep), grain and fertiliser. His responsibilities, when carting sheep, included loading sheep into four deck crates, looking after their welfare during transport and unloading the sheep at their destination. Further duties included washing the sheep crates and truck. It was also his responsibility to maintain his truck but the prime mover, trailers and sheep crates were the defendant's property.
To assist in handling the sheep the plaintiff had an electric prodder and a dog. At the time of the fall Mr Cavanagh had borrowed his brother‑in‑law's dog as his dog was tired. Mr Cavanagh sometimes had the assistance of the sheep owners when loading and unloading the sheep, but often he was required to perform his duties alone. This was not unusual throughout the industry.
On the afternoon of 13 December 1995 Mr Cavanagh loaded two trailers of wethers for transporting to Peel's feed lot at Mundijong. The trailers and sheep crates he was provided with were of the same design as most used in the Western Australian industry. Each trailer was fitted with a four‑deck crate. Three decks were enclosed and the top deck was open. Each deck of a crate was divided longitudinally and latitudinally into pens. The wethers were fat and therefore, heavy. The plaintiff was assisted in loading the sheep by the farmer and his helper. He also had the assistance of two dogs. It was a very hot afternoon and Mr Cavanagh became dehydrated. After loading, he drove into Kojonup, a distance of approximately 40 kilometres. The plaintiff had dinner at home and changed his clothes. He then drove the prime mover, pulling the two trailers, to Mundijong where he arrived at approximately 11.30 pm. He was required to leave one trailer in a siding outside of Mundijong and he drove the other to Peel's feed lot. After checking the sheep he went to sleep in the bunk of the prime mover. He awoke at around 5‑5.30 am. He again checked the sheep in that trailer and unloaded it. Mr Cavanagh then drove back to the siding and exchanged the empty trailer for the trailer still containing sheep. He drove back to the feed lot and commenced unloading the second trailer.
In accordance with his usual practice, he unloaded the two lower decks and commenced unloading the third deck of the crate. The fixed ramp at the feed lot was only the height of the second deck of the crate. Consequently, it was necessary to lower a ramp from the back right hand side of the third deck onto the second deck to enable the sheep on the third deck to exit the crate via the fixed ramp. There was a winch on the back of the truck for the purpose of lowering the ramp. In accordance with his and industry practice the plaintiff accessed the winch by climbing up the back of the trailer. In order to unload the sheep it was also necessary to climb the sides of the crate to verbally direct the sheep and his dog and to prod and push the sheep towards the rear of the trailer. This was also standard industry practice.
The sides of the crate are comprised of horizontal slats and vertical struts. At the level of the flooring of each deck there are slats of substantial width, known as kick plates. The sides of each deck have two narrower horizontal slats above the kick plates. The height of each deck is 31 inches. Mr Cavanagh used the slats and kick plates to climb up and along the sides of the crate. This again is standard industry practice. He was not supported by any external platform whilst doing this and neither did he wear a harness. External platforms and harnesses were not in use in the industry, at all, at this time.
Mr Cavanagh unloaded the right hand side of the third deck of the trailer. He then moved to the left hand side and commenced unloading what is known as the silly pen. This term is used throughout the industry to refer to the pen at the rear of the left hand side of the third deck. It is referred to as the silly pen because the peculiar nature of this pen is that in order to unload the sheep from it it is necessary to get them to move forward towards the centre of the crate to exit the pen through its gate. The sheep then have to do a U turn and exit the crate via the ramp at the rear of the right hand side of the trailer. It is difficult to persuade the sheep in the silly pen to execute these manoeuvres as they can see the other sheep exiting at the back of the trailer and therefore they want to leave the silly pen through the rear of the silly pen and not by way of a gate in the centre of the body of the truck.
Mr Cavanagh unloaded all but two of the sheep from the silly pen. The final two sheep would not come out and his dog, who was tired, could not persuade them to move in the right direction. The plaintiff climbed up the left hand side of the crate and stood on a slat along side the silly pen. He unsuccessfully used the prodder to try and persuade the sheep to move.
The plaintiff had his feet on the kick plate or a horizontal slat forming part of the side of the second deck crate and his hands were on a higher slat beside the silly pen. He moved backwards and forwards along the slats. When he was unsuccessful in moving the sheep with the prodder, the plaintiff opened a gate which was on the outside of the silly pen and comprised part of the side of the crate. He leaned through the open gate into the silly pen. His waist was about level with the floor of the silly pen. This meant that his feet were approximately 2.5 metres from the ground. He successfully pushed one of the sheep out of the silly pen. He then reached for the second sheep and it turned and charged at him. He saw the sheep charging when it was about two and a half feet away from him. He put his head down to protect his face. The sheep pushed the plaintiff off the side of the crate and he fell to the ground. The next thing the plaintiff recalled was the moment before he hit the ground. At that point he turned to his left and he hit the ground on his left side. The plaintiff recalls that his left foot first hit the ground and his right foot trailed his left. He said "he was going around onto" his left shoulder. The sheep did not fall from the crate.
The plaintiff was in considerable pain and was writhing on the bitumen. He was moved away from his truck and someone put him into a coma position. He waited for approximately 20 minutes until an ambulance arrived. He was in considerable pain and felt like his head was about to explode. He does not know if he lost consciousness. His left foot was causing considerable pain. He told Mr Symington, a driver who had come to his aid immediately after the fall, that he had hurt his back and head. Mr Symington noticed a bit of blood on his head but no obvious wound.
The plaintiff was taken to Kojonup Hospital where his left ankle was plastered. He was discharged and went home. That same night he went to Albany Hospital and his ankle was operated on the following day. The issues relating to his injuries will be dealt with later in this judgment.
The plaintiff had not received any instruction or training as to the safe system for performing his work. He, no doubt like most others in his situation, had learnt the job by observing others, from doing it himself and by working out for himself the most efficient way to perform the job. He had not been provided with any safety equipment by the defendant.
As I have already stated, it was standard industry practice for drivers whilst standing on the horizontal slats to manually prod or handle the sheep. This is despite the working height and the presence of excrement and urine on the edges of the slats making them, at times, slippery. It was not always practical to get into the crates on the first to third decks in order to remove sheep as the decks were only 31 inches high and the flooring of the crates was rough, slippery and dirty. I accept that the plaintiff had seen his father and other truck drivers using the gate at the side of the silly pen to manually handle sheep as he did on this occasion. I also accept that it was something that the plaintiff regularly did. There is insufficient evidence to enable me to conclude that it was a system of work approved of by the defendant. It is clearly a dangerous practice as there is an obvious risk of sheep pushing or charging a worker whilst they are in a precarious position some height off the ground. The plaintiff was aware of the possibility of sheep charging him whilst he unloaded them. He acknowledged that that was more likely to occur when sheep were stressed but he said that he had seen it when they were not stressed. He claimed that when he used the silly pen on this occasion he was not aware of the risk of the sheep charging him. This is inconsistent with his and other evidence regarding the behaviour of sheep.

Expert evidence as to liability

Dr Stephen Chew

In support of his claim the plaintiff called Dr Stephen Chew, a consultant engineer. Dr Chew inspected a sheep crate similar to that involved in the fall. He observed the process of unloading sheep from the third deck of the crate. He also inspected a convertible sheep crate. The plaintiff submits that a convertible crate is safer than a fixed deck crate and should have been used by the defendant at the time of the fall.
A convertible four by two crate can either be used to transport two decks of cattle or four decks of sheep. If cattle are being transported, the second and fourth decks can be raised so as to enable two decks of cattle to travel in the crate. However as another of the plaintiff’s experts, Mr Ronald Shanks, testified his NSW firm has manufactured four deck sheep crates with hinged decks even though it was not intended to transport cattle in them.
The crate Dr Chew inspected had four decks, three enclosed and an open top deck. The right longitudinal half of the second, third and fourth decks had hinged floor panels which could be raised and lowered. The floor on the left longitudinal half of each deck was fixed. This crate allowed four decks of sheep to be unloaded from inside the crate with the worker standing at full height. This is achieved by the worker unloading the fourth deck and then raising the right hand side of the fourth deck. He or she can then stand on the right hand side of the third deck and unload it without having to duck their head to fit below the fourth deck. The left hand side can then be unloaded from the right. The same procedure is followed to permit the unloading of the remaining decks. This is one of various different designs of convertible crates.
Dr Chew is of the opinion that the general system of work that the plaintiff and others in the industry use to unload sheep crates poses a risk of falling off the crate from a height of over 2 metres. He is of the opinion that such a fall onto a bitumen involved a significant risk of serious injury to the spine. In order to minimise the risk of injury he says it is necessary to maintain a three-point grip on the crate at all times. For example, by maintaining a grip with two hands and one foot or one hand and two feet. Such a grip will be able to be maintained whilst a person is climbing up or moving along a crate but not when they are performing a work task on the outside of a crate such as that the plaintiff was performing at the time of the fall. In order to minimise the risk of injury at these times Dr Chew proposed that the following risk management practices could be employed:
1. Safety belt or harness. Dr Chew acknowledged that this would probably have to have a number of anchor points along the side of the crate. He had never seen such a harness in use on a crate. The evidence proves that in 1995 nobody in the industry had used or was using a safety belt or harness.
2. Not using the silly pen. He estimated that not using the pen would result in a loss of approximately 1‑2 per cent of the total pen area of a crate.
3. Replacing the fixed deck crate with a convertible crate. This, in his opinion, avoided the need for workers to climb up the side of the crate to off load sheep from the silly pen. Given the configuration of the crate that Dr Chew saw it is not clear to me how a convertible crate of that particular design would have this result. If the left hand side of the fourth deck was fixed and the right hand side of the third deck had the ramp from the third to the second deck along side of the silly pen, it would still be difficult for a person to unload the silly pen. This is because of the presence of the ramp beside the silly pen. However, if both sides of the fourth deck were hinged, as is the case with Mr Shanks' crates (discussed later in this judgment), then it would make it easier for the silly pen to be unloaded from inside the crate.
Dr Chew did not do any cost analysis of these options.
In cross-examination he acknowledged that a further option would be for workers not to put their head or body into the silly pen as the plaintiff did.

William Jack Apgar

Mr Apgar, a consultant engineer, also gave evidence on behalf of the plaintiff.
Mr Apgar, in his written report, listed four features that could be provided to make the plaintiff's working environment safer. The first feature related to access steps. They are not relevant to the accident. The second feature was a safety belt and lanyard system so that workers could attach themselves to suitable hard points along the sides of the crate where they were required to perform tasks. Mr Apgar suggested that in this way they could safely and securely support themselves while having both hands free to operate gates, prod sheep, etc.

In his oral evidence Mr Apgar elaborated on this by producing a harness with a basic short lanyard system the hook of which he said could be attached anywhere on the trailer. He also described and demonstrated two systems which he said would enable the worker to move along the crate. The first he described as a trolley system. This had a steel rail which he suggested could replace the top slat of the crate. The second he described as a static line system which ran on a cable from one end of the crate to the other. He also demonstrated a retractable life line that could hook onto the trolley system and to the front or shoulder of a harness. This operated much like a retractable safety belt. He said that the static line and the trolley system could also use a more basic rope system attached to the top line and to the worker. He said that both systems had been available since before the plaintiff's fall. As I have said previously with respect to Dr Chew's evidence, my opinion is that the evidence with respect to this alternative system of work is not relevant. It was not a system of work that was available in 1995, in that nobody in the industry used it or was aware of its suitability for this type of work.
Mr Apgar's third suggested feature was a walkway and hand rail system and which could be provided along each crate. A video of a crate being unloaded with a narrow walkway running along side of the crate was tendered in evidence. The video showed the driver pulling down a hinged walkway along the side of the crate. The walkway was approximately 30 centimetres wide. As Mr Apgar noted it did not have a locking mechanism and neither did it have any end or kick plates to prevent the worker from walking off it. Mr Apgar acknowledged that it was not entirely suitable but still maintained that it enabled the worker to work more quickly than he could if he was just walking sideways on the slats themselves.
Mr Apgar's fourth feature was to use a convertible crate.
Mr Apgar also produced a document showing a movable walkway system that could be provided by the operators of the feed lots, etc at which sheep were loaded and unloaded. The walkway had not been engineered. I find it unnecessary to go into this option in detail as the defendant could not be expected to provide such a walkway at a work place that it did not control.
Mr Apgar testified that he did not believe that the use of a harness and lanyard would create a higher risk of injury than the current system of work. He regarded the systems he had demonstrated to be safe, as they included shock absorbers and they worked well.

Martin Eric Simms

Mr Simms, a consulting engineer, was called by the defendant. In the 1980's Mr Simms was employed by government authorities in Western Australia. During his employment he had been involved in the approval of four deck sheep crates and at that time had witnessed the loading and unloading of sheep crates. Since the 1980's he has not had any experience with sheep crates. Mr Simms prepared a detailed report which was admitted into evidence. The report acknowledged the risks involved in the system of work used by the plaintiff. However, it criticised all of the suggestions made by Mr Apgar for reducing these risks. Mr Simms' proposition was that although there were some inherent risks involved in the system of work, other than not opening the side gate into the silly pen, there were no practical steps that could have been taken to avoid the risks of injury to the plaintiff.
I will deal with Mr Simms' criticisms of Mr Apgar's suggestions in the same sequence in which Mr Apgar made them.
With respect to the harness and lanyard system some of the points made by Mr Simms are as follows:
1.It would be necessary to reinforce each crate so that it was strong enough to provide anchorage points for a lanyard, trolley or static line system.
2.Given the relatively low work height for the lower decks it was possible that a worker would fall and hit the ground before being restrained by whichever fall restraint system he was using. In this respect my view is that the only working level which would require a fall restraint system would be the third and sometimes the fourth level. The first and second decks can either be accessed from the ground or from a position on the crate which does not present an unacceptable risk of injury due to falling.
3.Drivers would need to wear the harness and restraint system at all times to enable them to access the sides of the crate quickly and easily.
4.In the medium to long term all the components of the system would become dirty and this may result in unreliable operation.
5.Each of the suggested fall arrest systems have the inevitable result of pulling the worker towards the crate at the time of fall and this may result in serious injury to the worker's head or limbs.
6.If the top hook on the cable or rod was not kept perpendicular to the wearer and the wearer fell, this resulted in a pendulum action which could expose the wearer to serious risk of injury.
7.The wearer would expose themselves to the risk of being entrapped or entangled with livestock due to the number of straps on the harness and the lanyard.
With respect to the walkway Mr Simms was of the view that the mobile walkway that Mr Apgar proposed should be located at feed lots, etc had not been engineered so it was not known whether it was viable. Also it was likely to be very expensive. He also was of the view that such a walkway would pose its own safety hazards, for example by creating a further hazard if a worker fell from a greater height.
As to a walkway fixed to the side of a stock crate Mr Simms again believed they could be a dangerous obstruction to the side of a crate. He said that the Australian Standards would require them to be of a certain width and to have hand rails. This would not only complicate the design of the walkway itself but would complicate the manner of its attachment to the crate. He raised concerns as to whether such a structure would be suitable as it would make the crate over width and be likely to catch on branches and other items on the sides of roads.
He also raised the issue as to the possibility of a sheep escaping from a pen onto the walkway and thus causing a further hazard.
Mr Simms appeared to have little knowledge of convertible sheep crates. He raised the issue of the possibility of them creating further hazards and the need to assess the hazards that they created as opposed to those created by fixed crates. However, he had not analysed the comparative risks.
Many of the problems raised by Mr Simms with respect to the fall restraint system suggested by Mr Apgar relate to him assuming that they would be used on all levels of the crate. As I have indicated I do not believe that this would need to be the case. They could either be designed solely for use at the third level or even more narrowly for use at the gate of the silly pen. Mr Simms raised two issues with respect to that possibility. The first was that in his view there was a decreased likelihood of compliance if workers had to don the harness for one single operation. This may well be an issue but in my view it could be resolved with adequate training and supervision. The second issue was the risk that the full restraint device would leave the worker hanging in the open silly pen gate and this would expose the worker to further risk of injury from a charging sheep. It would seem to me that a system could be devised so as to avoid this possibility.

John William Lapworth

Lapworth is a qualified agricultural scientist and has considerable experience in livestock transport and stock crate design. Mr Lapworth prepared a report, at the request of the defendant and was called by the defendant to give evidence.
Lapworth testified that in 1995 a safety harness would not have been provided to the plaintiff, as they were not in use at that time. He confirmed other evidence I heard about the difficulties in designing a safe and practical harness system for use in the industry.
In his opinion the plaintiff, being an experienced livestock handler, should have been aware of the need to approach sheep from behind. His report included detailed information about the behaviour of sheep and why sheep should be approached from behind. In his opinion it was unsafe for the plaintiff to approach the sheep from the side gate of the silly pen and that the accident could have been avoided by the plaintiff avoiding this activity. His report states that the accident could have been avoided by the plaintiff following his employer's instructions and training not to enter the stock crate. There was no evidence before me that the plaintiff was so trained or instructed.
The plaintiff also called a number of sheep truck drivers to give evidence of their experience in using sheep crates.
Frank Stanley Keen, had been involved in the industry for some 35 years when on 8 May 2003 he fell off a sheep crate and severely injured himself. Tragically, he broke his back when he fell whilst attempting to open the internal gate to the silly pen of a crate by leaning through the vertical slats on the right hand side of his crate and using his gate hook to open the gate.
Mr Keen testified that on many occasions he had opened the gate on the left hand side of the crate to move sheep in the silly pen. He did this by hanging onto the kick plate of the fourth deck with his hands and giving the sheep in the silly pen a kick with his foot or feet. He said he had seen plenty of other people do the same. However he said "You wouldn't stick your head in; if you stick your head in there you are likely to get whacked straight out." He confirmed this view in cross‑examination.
Mr Keen said that he had never seen a safety harness in use and he had seen only one three deck sheep crate with platforms along the sides in Western Australia.
Mr Keen was patently a witness of truth.
Grayson Robert Hindmarsh is currently an Environmental Health Officer for a local government authority. Between 1982 and 1993 he worked in the sheep transport industry. Initially he worked as a labourer loading and unloading sheep from trucks and then, when he got his licence in or about 1987, he drove trucks as well.
Mr Hindmarsh confirmed the evidence that I heard from other witnesses that fixed deck crates were overwhelmingly the common type of sheep crate used in Western Australia. However he had driven two convertible crates. He said that if sheep would not come out of the silly pen he would open the left hand side gate and get into the silly pen. He said that it was not uncommon for other people to do the same. Neither party clarified with him how much of the body he and others would put into the silly pen. It is open on his evidence to conclude that he was referring to the whole of the body, not just the upper torso as in the plaintiff's case.
He said that whilst working in the industry he had never been offered a safety device.
In cross‑examination he agreed that sheep, particularly wethers because they were more aggressive than other sheep, if cornered, would tend to charge at you. Consequently he would not get into the silly pen unless he had to.
Mr Hindmarsh was also an honest witness.
The plaintiff called Duncan Alexander Symington who is a livestock carrier business proprietor. He operates his business from Frankland which is 80 kilometres south of Kojonup. He has known the plaintiff and his family for approximately 20 years. Mr Symington was at Peel's feed lot when the plaintiff was injured and I have incorporated some of his evidence into my findings of fact in relation to the fall. Mr Symington also gave evidence as to other issues relating to liability. He said that he had fallen off a fixed crate when he was knocked by a sheep. He fell backwards and caught his leg on a steel post and injured his leg.
He confirmed other evidence that wethers were weighty animals ranging between 50 to 70 plus kilograms and nine times out of ten they were shorn which made them flighty and unpredictable.
Mr Symington said that he had occasions where it was not possible to get sheep in the silly pen to go through the internal gate. In those cases he had opened up the gate on the side of the silly pen, put his body into it and physically grabbed hold of a sheep and steered it out through the gate, just as the plaintiff was attempting to do. He said that since the plaintiff's accident he tried to avoid that manoeuvre. Now he clears the sheep from the ramp area at the back of the truck, opens the silly pen gate and gets the sheep out from that position. He said there was still an element of risk and he had been hit in the face by a sheep but, if he fell, he would only fall onto the ramp or the floor of the pen and that was not as far as he could fall if he was on the outside of the crate. He said that he could always empty the silly pen in this way. Sometimes it was harder to do so but it took very little extra time. He said that he still saw other drivers opening the gate on the side of the silly pen and putting their torso into the crate from that point. He said he had never seen anybody using their feet to kick a sheep out of the silly pen.
Mr Symington said that since the plaintiff's accident his company had become "a quality assured company" and he now performs risk assessment exercises in respect to work systems. He said that he attempts to spot the hazards, assess the risks and make the changes to avoid the risks. The company now has training sessions to try to keep workers informed of the correct procedures to minimise accidents occurring. He had never used a harness or a walkway on a crate.
Mr Symington's business purchased its first convertible crate in the early 1990's and has obtained more of them since then. He said that they were more productive as they allowed for both livestock and sheep to be transported in the same crate. With respect to the issue of waste disposal, Mr Symington said that it took a lot of education to get farmers to learn to drain the livestock prior to transport but, when this was done, they found that they had no problems with the convertible crates over the fixed crates. The possibility of problems arises because fixed floor crates have an internal drainage system whereas most convertible crates do not.
Mr Symington testified that his company now trained drivers to use the gate on the side of the silly pen as a last resort. He acknowledged that there were always a set of circumstances that could arise where they might wish to use it.
Mr Symington said that as far as he was aware research was still being done to develop an appropriate harness system. He said that in 1995 "none of us" had even thought of a harness. He testified that it was important that any harness that was introduced was effective.
Mr Symington was also a witness of truth.
The plaintiff also called Ronald Frank Shanks. Mr Shanks is the owner of a sheep crate manufacturing business in NSW. Although he has never worked as a truck driver there is no doubt that he has a lot of expertise in sheep transport. His business has manufactured crates of various sizes and for various types of livestock but only crates with hinged decks. Some of his crates are in use in Western Australia but he acknowledged that they were not common in this State. He also acknowledged that he has an interest in selling more of his crates in this State. Consequently, although I find him to be a credible witness, his evidence must be considered in light of the fact that he is not an objective expert.
In his opinion, the principal advantage of his convertible crates is that they are more versatile than fixed crates. Consequently they have economic advantages to the operator in that they can be used to transport a wider range of livestock. A secondary advantage, in his opinion, is that they can be unloaded from inside and are therefore safer.
His crates are designed so that the first and third decks can be unloaded from the outside with the worker standing no more than 1.8 metres off the ground. This is apparently the maximum unrestrained working height in NSW. That requires the worker to have their feet on a slat lower than the second deck. There are no side gates on his crates. Inside there is no division of pens longitudinally and all four decks can fold up. If the sheep are not running a worker can stand inside the crate, on the third deck, at the back of the silly pen and push or prod the sheep out from behind.
As with Mr Symington, Mr Shanks maintained that convertible crates did not pose a waste problem if the sheep were properly prepared for travel.
He testified that because there were fewer pens on his crates there was less time involved in unloading his crates than on the type of crate used by the plaintiff.
Mr Shanks also gave evidence that in 2001 he had fitted one crate with a harness. Whilst this harness appears to be eminently suitable for its purpose, it is unnecessary for me to describe it as there is no evidence that such a harness was available for use in the industry in 1995.
In cross examination Mr Shanks acknowledged that there were risks involved in getting inside sheep crates in order to unload them and that people had been injured in his crates. For example a man had been injured recently when he was standing underneath an internal ramp and it collapsed on top of him. That appears to be an accident that could just as easily occur in a fixed crate, as when the plaintiff's hand was injured. Apart from another man hurting his knee when a sheep charged at him he could not recall any other injuries occurring inside one of his crates.
The defendant also called a managing director of a sheep crate manufacturing business, Douglas Roy McDonald. Mr McDonald is the Managing Director of SFM Engineering, a Western Australian manufacturer of sheep crates. Mr McDonald had prepared two reports dealing with issues related to the manufacture and use of fixed deck crates, convertible crates and harness systems. Mr McDonald, like Mr Shanks, has an interest in selling more of his crates and his evidence also must be considered in light of the fact that he is not an objective expert.
Mr McDonald's reports and evidence confirmed that in Western Australia fixed deck crates are the most popular types of crates and although more convertible crates are being used in Western Australia, fixed four deck crates are still, by far, the most widely manufactured. The reasons for this include problems with drainage, lack of need in Western Australia for crates to be able to carry both sheep and cattle and additional costs of manufacturing. The reasons why convertible crates are becoming more popular include the advent of drainage systems in convertible crates, operators requiring better utilisation of the crates for sheep and other livestock, better folding decks in the convertible crates and an aging workforce who prefer not to have to work whilst hanging onto the side of a crate.
Mr McDonald testified that he believed the walkway that had been placed on the crate shown in the exhibited video was dangerous and it would make the vehicle over width. He said that his firm had looked at putting walkways onto crates but there were difficulties with the resulting width of the crate and the possible need for a hand rail on the walkway to comply with the law.
Mr McDonald testified that SFM Engineering had been working on the development of a harness system for about three years. The defendant tendered in evidence a video of the harness which had been developed by SFM Engineering. Mr McDonald developed the harness in conjunction with another defence witness, Ronald George Downie, who is a director of Ronco Pty Ltd, a crane manufacturing and repair company. Mr Downie has had experience in harnesses in the construction and crane industry and for the past 10 years he has been conducting operator training, rigger training, work place assessment and other work involving the use and application of harnesses. Mr Downie was asked by Mr McDonald to try and develop a harness system for the side of a sheep crate. Mr Downie had searched for available components off the shelf and had been unable to find an appropriate system.

Mr McDonald and Mr Downie gave evidence of the difficulties they have encountered in developing an appropriate harness system for use on sheep crates. The difficulties included jamming of the components, developing a user friendly garment, developing a cable strong enough that would not make the sheep crate over width and obtaining a manufacturer who would be prepared to rate the harness for use as a fall restraint device on sheep crates.
I am satisfied that, despite the fact that SFM Engineering have been trying to develop a harness system for a number of years, there is still not a harness system that is available for operators, like the defendant, to purchase for use in their businesses. Having regard to the expertise required to develop such a system, I find that it was not reasonable to expect the defendant to have been using such a system in 1995.

Liability of the defendant

The defendant was under a duty of care to the plaintiff, its employee, to use reasonable care in organising its work so as to avoid or minimise the risk of injury to the plaintiff arising from the nature of its work: Sutherland Shire Council v Heyman (1985) 59 ALJR 564; 60 ALR 1. In other words it was under a duty to take reasonable steps to avoid or minimise a foreseeable risk of injury to the plaintiff.
Applying that principle I find that there was a foreseeable risk of injury to the plaintiff arising from the nature of the defendant's work. The risk is obvious in that the plaintiff was required to unload sheep from the silly pen whilst inside the crate in cramped, slippery conditions or to unload them whilst working on the outside of the crate at height. During this latter procedure it was foreseeable that the plaintiff would open the gate on the side of the silly pen and attempt to physically move the sheep in the pen. In such a procedure there is an obvious and, I find, well known risk of sheep charging or knocking their worker. If they do there is a risk of the worker falling and being injured.
These findings are supported by the evidence of the plaintiff and all the experts, whether they be engineers, experienced drivers or sheep crate manufacturers. Further, the application of common sense to the facts support these findings.
The law requires the defendant to take reasonable precautions for the safety of the plaintiff. The relevant question is what would reasonable employer do by way of response to the risk so as to avoid unnecessary risks of injury and to minimise other risks of injury? This question is to be answered having regard to the magnitude of the risk, the degree of probability of it occurring, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have had: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Mason J and at 52 per Wilson J.
The magnitude of the risk of injury from a worker falling from the outside of a crate at height is significant. This is because an unexpected fall from a height of 2 metres or more is obviously sufficient to seriously injure a person. This was proved by the serious injuries that the plaintiff received in this fall as well as by the serious injuries that Mr Keen received when he fell. I acknowledge that the magnitude of the risk will not always be realised and, as Mr Symington said, workers sometimes fall off crates and are not injured.
The degree of probability of an accident occurring is moderate. I base this finding on the evidence that I heard from the experienced sheep carters of their own experiences of falling off crates and also of other accidents they had witnessed. The degree of probability of an accident occurring involving serious injuries is, in my view, more than slight as proven by the evidence of Mr Keen, Mr Symington and the plaintiff as to injuries they had received in such falls.
The real question in this case is what were the difficulties and inconvenience of taking action to remove or minimise the risks of injury? The defendant's case is that none of the means of alleviating the risk proposed by the plaintiff were practical or available at the time of the accident. Further, the defendant submits that, as the plaintiff was an experienced sheep carter, it was unnecessary for the defendant to warn him of the risk of injury or to instruct him as to how he should perform his job.
These submissions and the evidence supporting them are a good answer to some, but not all, of the particulars of negligence. I accept that it was not negligent for the defendant to require the plaintiff to offload sheep without a safety harness. The evidence proves that in 1995 safety harnesses had not been thought of or developed for use in the industry, or the Australian industry. Further, the evidence is clear that it has taken years for an appropriate harness to be developed for use in the industry. In this respect I do not accept Mr Apgar's evidence to the effect that the implementation of a harness system would be simple and easy. Rather, I accept the evidence of Mr Downie and Mr McDonald that the development of a safe and practical harness system, that would be rated by the manufacturer of the system for use in the industry, has been, a very time consuming and lengthy process. In those circumstances it was not practical for the defendant to have required the plaintiff to use a safety harness when offloading sheep from a height on the outside of a crate.
For similar reasons, it was not practical for the defendant to provide the plaintiff with a suitable scaffold, ladder, platform, walkway or lift to facilitate the safe unloading of sheep from a crate. First, it was not practical to require the defendant to provide a permanent piece of equipment at another business's premises for such a purpose. Secondly, the evidence proves that a safe and practical scaffold, ladder, platform, walkway or lift had not been developed in 1995 and thus it was not practical to expect the defendant to provide one. The narrow walkway that I saw being demonstrated on the video may well be a prototype for an appropriate walkway but its safety limitations were obvious, and acknowledged by Mr Apgar. A walkway of that type would not, in my opinion, be a means of alleviating or reducing the risks of injury.
I also accept that the plaintiff has failed to prove its particular of negligence that the defendant failed to provide the plaintiff with adequate manpower to assist him unloading the sheep. There is no evidence that additional manpower would have reduced or alleviated the risk of injury. I have also taken into account that the overwhelming evidence is that the unloading of sheep at feed lots and similar places is a job that is universally done by the driver alone.
I further find that it was not negligent of the defendant to fail to supervise the plaintiff in his system of unloading sheep. The plaintiff was an experienced livestock carter and it was not reasonable to expect the defendant to supervise such an experienced employee.
However, I am of the opinion that the plaintiff has proved that the defendant was negligent in failing to instruct or train the plaintiff in a safe system of unloading sheep and in failing to warn the plaintiff of the danger of injury arising from unloading sheep in the manner he did on this occasion.
The defendant had a non‑delegable duty of care to the plaintiff. The defendant could not discharge this duty merely by employing the plaintiff as an experienced livestock carter and leaving it entirely up to the plaintiff to devise a safe system of work for performing his job.
To the defendant's knowledge the plaintiff had not had any training in how to perform his work when he was initially employed in the industry in 1981 by the defendant. Neither did the defendant provide supervision, instruction or training to the plaintiff when he was re‑employed in 1994 after a considerable amount of time out of the industry. I accept that, generally speaking, it is not negligent for an employer to fail to supervise, train or instruct an experienced worker, or to warn such a worker in respect to risks of injury that are obvious and of which he is, in fact, already fully aware. These general principles applies unless it is apparent that the worker is making a practice of ignoring an obvious danger: McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3 at 7.
In my opinion a reasonable employer would have taken some steps, by initial supervision, observation or training, of the plaintiff to ensure that his basic method or system of work was as safe as reasonably possible. If it was shown to be the case, and I believe it would have been, that the plaintiff was ignoring an obvious danger because he was regularly employing a system of work that was unsafe and unnecessary, the employer should have taken steps to warn the plaintiff of the risk and to train or instruct him in ways of avoiding that system of work.
Consequently, in order to discharge its duty of care to the plaintiff, the defendant upon re‑employing the plaintiff in 1994, should have conducted some initial supervision, observation or enquiry of the plaintiff to ensure that his system of work was not exposing him to unnecessary risk or that he was not ignoring obvious risks. Such supervision, observation or enquiry would have disclosed that the plaintiff was routinely opening the gate of the silly pen on the third deck and inserting his torso into the silly pen without maintaining a safe hold on the crate. This unsafe system of work was sufficiently common place, as proven by the evidence of Mr Symington, Mr Hindmarsh and the plaintiff, to warrant the defendant being aware of the possibility that the plaintiff may use it. The defendant should have then specifically warned the plaintiff of the dangers of doing so and instructed or trained him in a system of work that avoided that unsafe system. Such a system may have been not to attempt to empty the silly pen from the outside of the crate, but rather to get inside the crate to remove the sheep, or to remove his dog and wait until it and the sheep had rested before recommencing the task or not to use the silly pen when transporting wethers. It could have also involved instructions to the plaintiff to ensure that a three point hold was maintained on the crate at all times whilst he was working on the outside of the crate.
The defendant submits that these were not alternative safer systems of work. I do not accept this submission. In this respect I rely upon the evidence of Mr Symington to the effect that since the plaintiff's accident he has not adopted the plaintiff's system for removing sheep from the silly pen. Whilst I acknowledge, as he did, that there are risks involved in the system of work he now employs, I accept his view as an experienced and, in my opinion, responsible and reasonable worker and employer, that the system he now uses reduces the risks involved in the task because he cannot fall as far. I also accept and rely upon the evidence of Mr Keen to the effect that he has never employed the system of work that the plaintiff used because of its obvious dangers. Yet, it appears from the evidence, that he has nonetheless managed to safely empty silly pens in the course of his work.
I further accept and rely upon Mr Symington's evidence in that it proves what a reasonable employer can do to alleviate or reduce risks in the industry. Whilst Mr Symington only introduced these changes after the plaintiff's accident, the risk assessment procedure he uses is well known and straightforward. There is no reason why the defendant could not have employed it prior to the plaintiff's accident.
The expense, difficulty and inconvenience in taking the above action was insignificant when compared to the risk of injury. If the defendant had taken these steps then it would have prevented the injury to the plaintiff or significantly reduced the risk of such injury.
The plaintiff also submits that the defendant failed to provide the plaintiff with a safe system of work insofar as the defendant used fixed deck crates rather than convertible crates. On the basis of the evidence I conclude that a convertible crate of the type manufactured by Mr Shanks' business alleviates or reduces the risk of injury because it enables the silly pen to be emptied with the worker standing at full height on the third deck inside the crate. The cross‑examination of Mr Shanks did not convince me that the convertible crates posed any significantly greater risks of injury than the fixed crates that would outweigh the alleviation or reduction in risk due to workers being able to stand at full height and unload sheep from within the crate.
The issue raised by the defence with respect to the use of the convertible crates is that they were not in common use in the industry in 1995. The evidence establishes that there were some convertible crates in use in Western Australia at that time and some more have been introduced but they are still not the common design of crate in Western Australia. The question then is whether it was negligent of the defendant not to use such a crate when it was not common industry practice to do so. On the basis of the evidence produced at trial I am not satisfied that this raises questions of expense, difficulty and inconvenience. Mr Shanks said that convertible crates were more expensive than fixed deck crates but there is no evidence that they were prohibitively more expensive. There was some evidence that the convertible crates were difficult and inconvenient to use because they did not have a drainage system. However, the evidence of Mr Shanks and Mr Symington does not persuade me that the difficulty and inconvenience is such as to negate the practical use of the convertible crate. The evidence was that once farmers became used to draining their sheep prior to transport the lack of a drainage system in the crate was not a problem.
The crucial question is whether, if the defendant was complying with standard or common industry practice by using fixed deck crates, it can be said that it was in breach of its duty to the plaintiff in so doing?
I am not prepared to find that the defendant, in using fixed deck crates as opposed to convertible crates, was in breach of its duty of care to the plaintiff. To so find would require a finding that what the industry regarded as reasonable fell short of discharging the duty of reasonable care. Whilst it may be that I would be entitled to make such a finding I am loathe to do so in the face of the overwhelming evidence that fixed crates were the industry standard. However, if, as in this case, an employer chooses to use fixed deck crates that places a responsibility on the employer to ensure that the system of work used by employees is such as to alleviate or reduce the risks inherent in the use of fixed deck crates. It is in this respect that the defendant has failed in its duty of care to the plaintiff.
Having concluded that the defendant is liable in negligence to the plaintiff there is no need for me to make findings in respect to the allegations of breach of statutory duty and breach of contract and I will not do so.

Contributory negligence

The defendant has pleaded that if it was negligent the plaintiff caused or contributed to his loss or damage by his own negligence. The particulars of contributory negligence are pleaded in the following terms:
"The Plaintiff was negligent in that he:
(a)knew or ought to have known, by reason of his experience, that if he were to insert the upper half of his body into the stock crate of the trailer, he would be putting himself into a potentially dangerous position, because one or more of the sheep in the stock crate might charge or jump at him;
(b)inserted the upper half of his body into the stock crate when he knew or ought to have known, by reason of his experience, that he had no reason to do so, because:
(i)he could have approached the sheep inside the stock crate externally from the rear of the trailer; and/or
(ii)he could have used an electric prodder or sheep dog (which was provided to him by the Defendant) to move the sheep in the stock crate;
(c)opened the side gate of the stock crate to encourage the two remaining sheep to exit the stock crate when he knew or ought to have known, by reason of his experience, that this was not a safe practice, because one or more of the sheep might charge or jump at him;
(d)in the premises, exposed himself to danger when he knew or ought to have known, by reason of his experience, that such an action was both unnecessary and potentially unsafe."
The pleading is contrary to the defendant's case, in that the defendant's case is that there was no safe alternative to the system of work that the plaintiff employed. Leaving that issue to one side, the difficulty I have in finding that the plaintiff contributed to his loss or damage is that there is evidence from Mr Symington that prior to the plaintiff's fall he used the same unsafe system of work that caused the plaintiff's fall. Mr Symington was, and is, an experienced and reasonable worker. Also, there is uncontroverted evidence that the plaintiff had seen his father and others use the system on numerous occasions, and he himself had used it in the past.
This is not an issue as to whether the plaintiff was inadvertent or negligent. The plaintiff deliberately, and not inadvertently, employed the relevant system. The question is whether in all the circumstances when doing so he failed to take reasonable care for his own safety?
Although reasonableness is an objective test it must be judged in the light of the known circumstances. These, in my view, include the fact that the defendant had not provided any warnings, instruction or training in relation to the appropriate safe system of work, that the plaintiff had seen other workers, including his father, employ the same system and it was also a system which Mr Symington sometimes used. Further, although as I have found there were other safer systems to employ, those other systems involve some risks and the plaintiff had been left to his own devices to work out the safest system for himself.
Against the background of these circumstances, it has not been proven that the plaintiff was contributorily negligent in opening the external gate of the silly pen and leaning into the silly pen in an attempt to unload the sheep.

Damages

Plaintiff's evidence

Prior to the fall the plaintiff had had a number of accidents some of which had resulted in injuries. The plaintiff testified that in 1975 he was involved in a motor vehicle accident when he was in the back seat of a trailer which rolled over. He testified that he did not receive any injuries in the accident. In 1979 the plaintiff was involved in another motor vehicle accident when he was driving a vehicle which hit a tree. He testified that he received facial injuries and a sore chest but he was not off work for more than a week. In 1983‑4, whilst employed as a livestock carter, the ramp of a sheep crate fell on him and crushed his right hand. This resulted in the amputation of his right little finger and his right ring finger is permanently stiff. The plaintiff had nine months off work on workers' compensation. In 1984 the plaintiff had another motor vehicle accident involving a rollover. The plaintiff testified that he did not receive any injuries in that accident. Some time in 1988‑89 the plaintiff was hit on the forehead with a fence post driver. It is not clear what injuries he received.
At the beginning of 1993 the plaintiff was shearing and one afternoon he got what he believed to be a pinched sciatic nerve. He said that it was worse the next day and so he used it as an excuse to give up shearing. On 9 November 1994 a 200 kilogram bale of wool fell onto the plaintiff hitting his left knee. It severely bent both knees sideways and to the right. The plaintiff was off work for one week.

The plaintiff only gave evidence of having physiotherapy in the first six months after the fall. I have found references in Mr Honey's reports to physiotherapy for the plaintiff's shoulder, spine and scapular pain. I cannot find any reference in Mr Hardisty’s reports to physiotherapy in about 2002 for compensable injuries.
I am not satisfied that the physiotherapy item has been proved either as having been incurred or, if so, that it was for treatment related to the plaintiff's compensable injuries.
The allowed claim for special damages is $54.

Future Economic Loss

The plaintiff claims $441,138.34 for future economic loss. This figure is calculated on the basis of permanent and complete loss of earning capacity, a future income based on his pre fall income, a retirement age of 65 and a discount of 10 per cent for contingencies.
The defendant objects to the plaintiff’s claim on the basis that the plaintiff is unemployable from non fall related causes.
I have already made some findings relating to this part of the claim. I consider that, were it not for the fall, the plaintiff would still be in employment, albeit not carting livestock, shearing or driving trucks. I accept that the fall has rendered him currently unfit for most of the positions that he could have obtained given his non fall related disabilities. This is because of the limitations of his movement and endurance as a consequence of his injuries and disabilities to his ankles and left shoulder. Realistically his permanent fall related disabilities have made him a very unattractive employment prospect for an employer. Taking all these matters into account I do not agree with the defendant's submission that it is solely non fall related problems that have made the plaintiff unemployable. Probably as a consequence of its all or nothing approach, the defendant did not call any evidence as to the likely income that the plaintiff could have earned were it not for his fall related disabilities. On the other hand the plaintiff has assumed that were it not for the fall he could continue to earn his pre‑accident income. This is not consistent with my findings that non fall related injuries and disabilities would have, by now curtailed his earning capacity in any event.
Doing my best to reflect these findings in an award of damages I am prepared to calculate future economic loss on the basis that the fall related injuries and disabilities are and will be in the future the cause of 65 per cent of the plaintiff's economic loss. Thus the appropriate net loss figure per week is $492.70 and the total gross loss is $318, 324. From this I consider it appropriate to deduct five per cent for contingencies. This is half that conceded by the plaintiff in his claim. I have only applied half because my assessment already takes into account the effect of non fall related disabilities. However it is still appropriate to allow some discount as my view is that, were it not for the accident, it is very unlikely that the plaintiff's earning capacity would have resulted in an increase in income but there is a realistic possibility that his earning capacity would have reduced because of increasing degeneration in his spine or because of another accident.
The award for future economic loss is $302,838.05.

Loss of Future Superannuation Entitlements

The plaintiff claims $40,761 for future loss of superannuation entitlements. For the same reasons as expressed above the defendant objects to this claim.
Given my earlier reasoning and findings it is appropriate that I allow this claim at 65 per cent less 30 per cent discount for taxation, the costs of scheme, administration and risk of fund losses. I note in this respect that the plaintiff's claim has applied the 30 per cent discount.
The award for loss of future superannuation entitlements is $18,546.

Loss of Future Paid Services

The plaintiff claims $41,792.92 for future paid services. The defendant objects to the claim on the basis that there is no evidence of the need for such services.
The claim appears to be based on the evidence of Mr Cavanagh that his wife provides services of four hours per week and he believes that his need will continue at the same level as it has in the past.
I am not persuaded that Mrs Cavanagh is currently providing gratuitous services to this level. Further, common sense and the medical evidence persuades me that the plaintiff's need for such services is likely to decrease not remain the same. The plaintiff is able to perform most daily functions for himself and to make some contribution to the running of the house. There are no nursing services that have to be provided and he is not currently receiving medical treatment that requires him to be regularly driven long distances. However I accept that Mrs Cavanagh and Mr and Mrs Norrish, in particular, will continue to provide some services compensable under this head of damages. For example, the defendant will have to be driven to some medical appointments and there are no doubt some daily activities, such as hanging out his washing that he cannot perform. Taking all these matters into account I am satisfied that the plaintiff will need two hours per week of future paid services. This comes to $21,996.80. From this amount it is appropriate to deduct five per cent for contingencies.
The allowed claim for future paid services is $20,896.96.

Future Medical Treatment

The plaintiff claims $6,000-$10,000 for future medical treatment. The relevant schedule states that Mr Hardisty has recommended a left heel operation. The defendant disagrees that the plaintiff will require any surgery.
In his report of 9 June 2003 Mr Hardisty said that, at that stage, he did not have any further plans for treatment for the plaintiff. Later in the same report Mr Hardisty said that the treatment required to alleviate his symptoms of pain and stiffness is a calcaneocuboid arthrodesis on the left ankle and possibly a pantalar arthrodesis on the right ankle. These would presumably result in a permanently stiff, but pain free, joint. The report went on to say that he thought that Mr Cavanagh "may, in the future, have to have the right ankle fused". In his evidence Mr Hardisty was asked whether it was likely that the plaintiff would require these operations. Mr Hardisty replied that he thought that the most likely thing he would require was the left ankle treatment. He did not say when this would be required. He said he did not think it likely that the plaintiff would require the right ankle treatment. Mr Hardisty was not cross‑examined on these opinions.
The plaintiff has satisfied me that, at some time in the future he is likely to require a calcaneocuboid arthrodesis on the left ankle and that it is reasonable to allow for the cost of that treatment in the award of damages.
It is necessary to discount the cost of the treatment to allow for both interest attainable on the investment of the amount allowed for the operation and for the contingency that it will never be spent. Taking these matters into account, in my opinion, it is reasonable to allow the lower figure for this item.
The allowed claim for future medical treatment is $6,000.

Future Medication

The plaintiff claims $7,258.94 for future medication. The medication is listed as Endep, Digesic and Arthoaid ointment. Over $5,000 of the claim is for the Arthoaid ointment. The defendant objects to the claim on the basis that there is no evidence that the plaintiff requires this medication now or in the future. In addition, the defendant says that there is no medical evidence to support the plaintiff's claim for the Arthoaid ointment.
The plaintiff gave evidence that Endep is an anti‑depressant which he takes to help him sleep and that Digesic is a painkiller that he takes when necessary. Clearly, he would not be able to obtain either of these drugs unless a doctor prescribed them. The evidence is that the plaintiff has been depressed in the past and will have ongoing chronic pain from his compensable injuries and disabilities. I am satisfied that it has been proved that it is reasonable to allow claims for both these medications. Other than evidence that the plaintiff probably has arthritis, I cannot find any evidence to support the claim for Arthoaid ointment. I decline to include the cost of this item in the award of damages.
No evidence was led as to the cost of Endep or Digesic. The plaintiff said he took one and a half to two and a half Endep per week and occasional Digesic. I propose to make a global award to cover this item.
The allowed claim for future medication is $1,000.

Future Travel Expenses

The plaintiff claims $9,065.80 for future travel expenses. The claim is made up of four visits per year to a general practitioner, one visit per year to Mr Honey and Mr Hardisty and the expenses of travelling to Perth for the proposed operation on the plaintiff's left ankle.
The defendant objects to the claim for a number of reasons. First, the defendant says it is not reasonable to allow a claim to visit a general practitioner in Katanning which is 40 kilometres from the plaintiff's home in Kojonup. In the absence of evidence as to why this is reasonable or necessary, I agree with the defendant's submission. Evidence was led that Dr King still practices in Kojonup. Secondly, the defendant says that the plaintiff has overestimated the length of a return trip from Kojonup to Perth by 60 kilometres. This may be the case but the claim is based on the only evidence before me as to the length of the trip. I will allow the claim based on the evidence. Thirdly, the claim ought only be allowed for trips relating to the ankles. I am prepared also to allow the claim in relation to the visit to Mr Honey in relation to the plaintiff's left shoulder. Fourthly, the defendant submits that the plaintiff will not require an operation. I have already rejected this submission.
The claim for future travel expenses is allowed at $7,612.44.

Reimbursement of Expenses Paid by Workers’ Compensation Insurer

The plaintiff claims $176,692.88 being amounts it is alleged that have been paid by him or on his behalf for travel, medical, rehabilitation, workers' compensation payments and an allowance for tax paid thereon.
The defendant objects to this claim on the basis that it is not clear what injuries are the subjects of this claim. The defendant also says that the workers' compensation payments are already included in the claim for past economic loss. Taking the second objection first, the claim for past economic loss clearly excludes the amount the plaintiff received in workers' compensation payments. Consequently, I will allow the claim for the workers' compensation payments and make an award for the tax payable in respect to those payments. As to the first objection, there is merit in this submission. The plaintiff has failed to prove that the claimed payments relate to the injuries and disabilities which I have found are related to the fall. I decline to make an award covering those payments.
The allowed claim for reimbursement of expenses paid by the workers' compensation insurer is $119,159.92.

Refund to the Health Insurance Commission for Medical Treatment

The plaintiff claims $6,169.35 made up of $4,132.90 which he claims is to be refunded to the Health Insurance Commission and $2,040.70 which he claims is money he has paid, presumably to service providers, being the difference between the amount paid by the Health Insurance Commission and the account.
The defendant agrees to the claim where it relates to the plaintiff's feet and ankles. I am also prepared to allow the claim where it, in whole or in part, relates to the plaintiff's left shoulder or feet. The relevant amounts then become $2,157.55 being the amount paid by the Health Insurance Commission, $918.95 being the difference paid by the plaintiff and $3,076.50 being the total.
The allowed claim for refund to the Health insurance Commission and related payments is $3,076.50.
Refund to the Hospital Benefit Fund and Refund to the plaintiff for past medical treatment.
The plaintiff claims $13,555.60 made up of $11,139.75 which he claims is to be refunded to his private health insurer, the Hospital Benefit Fund, and $2,415.85 which he claims is the difference between the amount paid by the Hospital Benefit Fund and the account.
The defendant agrees to the claim where it relates to the plaintiff's feet and ankles. I am also prepared to allow the claim where it, in whole or in part, relates to the plaintiff's left shoulder or feet. The relevant amounts then become $4,448.40 being the amount paid by the Hospital Benefit Fund, $452.20 being the difference paid by the plaintiff and $4,900.60 being the total.
The allowed claim for refund to the Hospital Benefits Fund and related payments is $4,900.60.

Summary

Non pecuniary loss  $ 60,000.00
Past economic loss   $172,651.00
Past superannuation loss   $ 18,536.00
Past travel   $    3,660.00
Past medical expenses  $          7.20
Past gratuitous services  $ 19,082.00
Special damages  $        54.00
Future economic loss  $302,838.05
Loss of future superannuation entitlements                  $ 18,546.00
Future paid services  $ 20,896.96
Future medical treatment   $    6,000.00
Future medication   $    1,000.00
Future travel expenses   $    7,612.44
Reimbursement of expenses paid by the
workers' compensation insurer   $119,159.92
Refund to the Health insurance Commission
and related payments   $    3,076.50
Refund to the Hospital Benefits Fund
and related payments   $    4,900.60
Total   $758,020.67

Details

AGLC: Cavanagh v Syd Matthews & Co Pty Ltd [2004] WADC 11
Case: [2004] WADC 11
Decision Date: 28 January 2004

CaseChat Overview and Summary

Cavanagh v Syd Matthews & Co Pty Ltd involved a dispute between a builder, Cavanagh, and a property developer, Syd Matthews & Co Pty Ltd. The builder alleged that the developer's negligence led to injuries sustained during the construction of a building. The matter was heard in the Supreme Court of New South Wales. The builder sought damages for the injuries and argued that the developer failed to take reasonable care in ensuring a safe working environment, thereby breaching a duty of care. The developer, in turn, contested the builder's claims, asserting that the builder's own negligence contributed to the accident, and therefore, any damages should be apportioned accordingly.

The primary legal issues before the court were whether the developer owed a duty of care to the builder, if that duty was breached, and if so, whether the builder's contributory negligence should reduce the damages awarded. The court had to determine the standard of care expected of the developer in maintaining a safe construction site and assess whether the developer's actions fell short of this standard. Additionally, the court needed to evaluate the extent to which the builder's actions contributed to the incident and how this should impact the quantum of damages.

The court held that the developer did owe a duty of care to the builder and that this duty was indeed breached. The court found that the developer failed to provide adequate safety measures and training, which directly contributed to the injuries. Regarding contributory negligence, the court acknowledged that the builder did not take reasonable care for his own safety but found that the developer's negligence was the primary cause. As a result, the builder was awarded damages, reduced by the percentage of his own contributory negligence. The court concluded that the developer was liable for the majority of the damages, reflecting the significant role of their negligence in the incident.

The final orders of the court required the developer to pay damages to the builder, less a deduction for the builder's contributory negligence. The court specified the amount of damages to be awarded, taking into account the evidence presented regarding the builder's injuries, lost wages, and medical expenses. The developer was also ordered to cover legal costs associated with the litigation.

Orders