Cross v Trespa Holdings Pty Ltd (ACN 006 612 782)

[2020] VCC 1965

IN THE COUNTY COURT OF VICTORIA

AT Ballarat

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No.  CI-19-01583

JASON DANIEL CROSS	Plaintiff
v
TRESPA HOLDINGS PTY LTD (ACN 006 612 782)	First Defendant
and
JACK BISHOP PTY LTD (ACN 133 057 048)	Second Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:	24, 25, 26, 27 and 31 August and 1 and 2 September 2020 (via Zoom hearing)
DATE OF JUDGMENT:	11 and 17 December 2020
CASE MAY BE CITED AS:	Cross v Trespa Holdings Pty Ltd (ACN 006 612 782) & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1965

REASONS FOR JUDGMENT
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Subject:  TORT 

Catchwords:                NEGLIGENCE – workplace injury – Manual Handling Regulations – contributory negligence – contribution - right shoulder injury – pain and suffering damages

Legislation Cited:     Occupational Health and Safety Regulations 2007

Cases Cited:Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Chapman v Hearse (1961) 106 CLR 112; Wyong Shire Council v Shirt (1980) 146 CLR 40; Erickson v Bagley & Anor [2014] VCC 2126; Czatyrko v Edith Cowan University (2005) 214 ALR 349; (2005) 79 ALJR 839; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; McLean v Tedman & Anor (1984) 155 CLR 306; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Central Darling Shire Council v Greeney [2015] NSWCA 51; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803; Swain v Waverley Municipal Council [2005] 220 CLR 517; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Moller v Trollope Silverwood and Beck Pty Ltd [2004] VSCA 22; Lindsay-Field v Three Chimneys Farm Pty Ltd [2010] VSC 436; Meade v Nillumbik Australia Pty Ltd & Anor [2018] VSC 328; Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Toomey v Scolaro’s Concrete Constructions Pty Ltd (In liq) & Ors (No 2) [2001] VSC 279; Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112

Judgment:  Judgment for the plaintiff.   Second defendant ordered to contribute 80 per cent for the judgment entered in the plaintiff’s favour; first defendant ordered to contribute 20 per cent for the judgment entered in the plaintiff’s favour.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull QC with Mr K Mueller	Stringer Clark Lawyers
For the First Defendant	Mr W R Middleton QC with Ms F Spencer	IDP Lawyers
For the Second Defendant	Mr D Myers	Meridian Lawyers

HER HONOUR:

Introduction

1  Jason Cross, the plaintiff, was employed by the first defendant, Trespa Holdings Pty Ltd, trading as Windscreen Power (“WP”), as a windscreen fitter. 

2  On 25 April 2015 (“the said date”), during the course of his employment, the plaintiff attended the motor mechanic and repair business of the second defendant, Jack Bishop Pty Ltd, trading as Duo Mobile, at Shed 9, Caravan Street, Wendouree (“the premises”) to fit a windscreen to an XF Ford (“the vehicle”). 

3  The plaintiff alleges he suffered injury at the premises when the bonnet of the vehicle on which he was installing a windscreen, collapsed on his right shoulder (“the incident”).

4  The plaintiff alleges he suffered injury as a result of the negligence and/or breach of the Occupational Health and Safety Regulations 2007 (“the Regulations”) by the first defendant. 

5  The first defendant admits it employed the plaintiff and that it owed him a duty of care for his safety.  However, it denies negligence and breach of statutory duty.

6  The second defendant admits it carried on business at the premises but denies the plaintiff worked under its supervision, direction and control and denies negligence.   

7  Both defendants allege contributory negligence.

8  The plaintiff seeks damages for pain and suffering only.

9  The issues that arose for my determination were:

(a)   Whether there was any negligence and or breach of statutory duty on the part of the first defendant which was a cause of the plaintiff’s injuries;

(b)   Whether there was any negligence on the part of the second defendant that was a cause of the plaintiff’s injuries;

(c)   Whether there was any contributory negligence on the part of the plaintiff. 

Witnesses and the evidence adduced at trial

10  Liability evidence was given by the plaintiff and engineer, Mr Dunn.  The first defendant called no viva voce evidence and tendered a number of documents. The second defendant called its manager, Mr Jack Bishop, and tendered a number of the plaintiff’s Answers to the first defendant’s Interrogatories and the first defendant’s Answers to the plaintiff’s Interrogatories.

The Plaintiff’s background

11  The plaintiff was born in Ballarat in February 1971 and is aged forty-nine.  He is one of nine children.  Two of his older brothers, Wally, aged sixty-two, and Steven, aged sixty-one, operate WP.[1]  His sister-in-law, Sue, is the WP office manager.

[1]Transcript (“T”) 24

12  The plaintiff has been in a de facto relationship with his partner, Annette, for about twenty-seven years.  Their sons, Sean, aged twenty-five, and Matthew, nineteen, both work in the building industry.[2]

[2]T23

13  The plaintiff attended Ballarat North Tech until Year 10, when he was aged fifteen.  He does not recall passing any year level.  He was good at woodwork and sheet metal work.[3]  He has great difficulty reading, as his parents never taught him to do so.  He left school unable to read and write.  Annette read his serious injury application affidavit to him.[4]

[3]T25

[4]T26

14  After leaving school, he was unable to find work for eight months.  He then commenced work with his brothers at WP as a windscreen fitter.  He worked with them from age sixteen or seventeen, except for a very short stint at Learmonth Road Smash Repairs for two to three months, before returning to WP.[5]

[5]T26

15  Ricky was the manager at WP.  The plaintiff’s sister-in-law, Sue, worked in the office.  His brother, Steven, was at the premises two to three days a week.  Wally ran another windscreen business in Melbourne.[6] 

[6]T50

Evidence at trial – the incident

The Plaintiff

16  On the said date, the plaintiff arrived at work at 8.15am, loaded up and waited for Paul, his workmate, who turned up for work half-an-hour late.  The plaintiff’s normal routine after arriving at work was to open up the back shed, back the van into the shed, clean up any mess in the van from the previous day and then go up to the office. 

17  WP’s manager, Ricky, gave him a tag which set out the number and model of the windscreen to be fitted and the plaintiff would then get the matching windscreen from the rack and put it in the van.[7]  He then got the materials such as rags and glass cleaner ready for the day.[8]  Once the car was ready to go and loaded, Ricky would give the plaintiff and Paul invoices detailing where the jobs were to be done.[9]

[7]T30-31

[8]T31

[9]T32

18  On the said date, Paul was driving as always, mainly because the plaintiff could not read.  Their first job was at Duo Mobile.  They pulled up out the front on the nature strip and “one of the fellows”, the manager, came up and met them and said “the car’s inside” and they said “oh ok” and he said “you can drive into the shed if you want to, it’s right up the back.”[10]

[10]T33

19  Paul drove into the “big factory sort of shed”, parked behind the vehicle they thought was the job, because it was an XF and it was on the hoist.[11]  Then “he followed us up and said ‘That’s the one there’ but we already knew anyway because we pulled up behind it.  So we started to take the moulds off.”[12]   

[11]T33-34

[12]T34

20  They were told this was the job by “a man who I believe to be the manager of the place but he mighn’t have been”.  He thought his name may have been Dave; he was not sure.[13]

[13]T35

21  No-one at the premises warned him that there was any danger or potential risk that he should have been aware of while working on the vehicle.[14]  He was not told anything about a defective gas strut or that a defective gas strut was being supported and fastened with vice grips or that he needed to be careful.  He was given no guidance as to how to work on the vehicle.[15]

[14]T35

[15]T36

22  When he had left WP to do the job, he was not given any instruction or guidance by WP how to do the job.[16]  He was just acting in accordance with the instructions and training given by them.[17]

[16]T37

[17]T36

23  Once having arrived at the vehicle, “we pulled up behind it.  I got out of, um, my door, slid the side door of the van open, got my tool box and walked over and got my screw driver out and started pulling it apart.”  He was working on the left mould and Paul was working on the right.

24  To remove the windscreen they first had to take the screws off the side moulds while sitting in the vehicle.  He removed those on his side pretty easily but Paul had more difficulty as he was closer to the hoist.[18]

[18]T35

25  They started to take the moulds off.  The XF’s tyres were touching the ground but the whole weight of the vehicle was not on the ground – some of the weight was held up by the hoist.[19]

[19]T34

26  Having got off the right side mould, he walked around to the front of the vehicle because the bonnet was up and in the way.  He went to pull it down and it would not go down.[20]  He looked in there and saw vice like grips on the strut so he thought, “well that’s got to be what’s stopping the bonnet going down”.[21]

[20]T37

[21]T38

27  Prior to this day, the plaintiff had not been involved in a similar situation when vice grips were attached to a gas strut.[22]

[22]T45

28  The bonnet was at about head height.  He was looking under it on the front side of the vehicle, near the side driver’s wheel.[23]  After seeing the gas strut with the vice grips on it, he “just released the vice grips to get em out of the way” and then the bonnet dropped and pulled his arm in.  He got his head out of the way but the bonnet caught his right arm that was guarding his face and dragged it down.[24]

[23]T38

[24]T39

29  Figure 3 of Mr Dunn’s photographs showed the plaintiff leaning in to “re-enact” as best he could, opening some vice grips on the strut which were attached to the strut just below a black pad.

30  Figure 4 showed the plaintiff’s left thumb sitting on the edge of the bonnet as at the time of the incident.  Figure 5 showed what happened after the bonnet fell.  Figure 6 showed the bonnet going further down, pulling his son’s arm in.[25]

[25]T42

31  The bonnet went all the way down until the plaintiff was nearly on his knees with his arm stuck underneath it and on top of the guard.[26]  It went really fast – “I didn’t know it was coming so yeah”.  He yelled out to Paul, who was still in the driver’s side of the vehicle, to get the bonnet off him.[27]  Paul then lifted it off him.[28]

[26]T42

[27]T43

[28]T44

32  The plaintiff’s shoulder was then in pain.  It was completely different than it had ever been before.[29]  He wandered around the workshop for a while and then went back to the van and had a seat for a second.  He thought he had “just pulled a muscle or something, it will be alright”.[30]

[29]T43

[30]T44

33  He helped Paul finish off the job.  They went to do another two windscreens elsewhere[31] and then went back to WP for lunch.  He told Sue in the WP office that he had just hurt his shoulder.[32]  He told her that when they were at Duo Mobile – “I released some vice grips on this bonnet and the ... bonnet fell on me”.  He did not tell anyone else at Duo Mobile what had happened. He did not think he had to.[33]

[31]T85

[32]T44

[33]T45

34  He took it easy for rest of the day.  That night, his shoulder “wasn’t real good”.  It was pounding.  “Definitely” the next day he would have told Ricky or Sue his arm was not too good still so he just did smaller jobs.[34]

[34]T45

Cross-examination by WP

35  The plaintiff confirmed Duo Mobile was his first job on the said date and he would have been at the premises before 10.00am.  While the WorkCover Claim Form signed by him on 21 February 2013 set out the time of incident as 11.00am, “they’ve probably gone off the day book”.  The time a job is booked for does not necessarily mean the time they do the job, because that changes all the time.[35]

[35]T64 

36  When he and Paul left for the day, the plaintiff knew they had three jobs to do and the first was at Duo Mobile.  He did not look at the job book.  Paul would have told him about that job after he had read the invoice in the vehicle.  Sometimes they would be told where to go by Sue or Ricky.[36]

[36]T73

37  While the WorkCover Claim Form set out the time of injury was 11.30am, this was not correct, as he knew they went to Duo Mobile first off because he “had to do two more after that with the way [his] shoulder was”.  It was before lunch when he spoke to Sue at work and she did not fill out the form until later on – not on the day – and she would have looked at the book for the time of the job.[37]

[37]T68

38  He would have been asked to sign the Workcover Claim Form after it was completed and “they” would have said that it was WorkCover and he would not have even known what it was, someone else would have done it for him.[38] People fill forms out for him and he signs them.  It was the same for the TAC Claim Form.[39]

[38]T69-70

[39]T70

39  When he got to the premises, the plaintiff did not find it a matter of concern that the vehicle was on a hoist because –

“… that’s the way we’ve always done them even with the manager, who used to be a fitter, doing it with me and the owners, was the way they used to do them too so, … that the way we have been taught to do them.  …  It’s nothing new to us.  They’d be still doing them that way now ”[40] 

[40]T77

40  A vehicle being on a hoist makes the job more awkward but it can still be done.  It is just harder to get the moulds off “basically”.[41]  He was positive the front tyres were still on the ground.  They had to be “mainly for the reach”:[42]

“We always make sure at least the tyres touch the ground if they want us to do it on a hoist … that’s the way we have been told to do it through work, our own work to have them done so.”[43]

[41]T84

[42]T90

[43]T91

41  If they got to a job and the car to be worked on was not ready, they would not leave it and come back to it later – “That is not the way they work down there.  It is get it done and do not argue.”  On the day, they both “just done the job because – the fella said it was right to go so we did it”.  If a car is having work done on it or is on a hoist being fixed by someone else, they would not wait around an hour, an hour-and-a-half, to then work on it.[44]  

[44]T75

42  He had been to the premises to fit windscreens twenty or more times.  Dave told him the vehicle was out the back.  He did not ask Dave to bring the vehicle down from the hoist as the wheels were on the ground.  If the vehicle is just on a hoist like that, he could have installed the windscreen.[45]

[45]T76-77

43  He said nothing to Dave about the hoist and Dave was not there when he saw the bonnet was up.[46]  He quickly inspected the bonnet at the beginning, just looked under it to see why it would not shut.  After he got the side mould off, he went to shut down the bonnet.[47]

[46]T77

[47]T77

44  He initially said a bonnet being up is pretty rare; it does not happen too often.  He then said he had been to places before where the bonnet was up and they had to close them.  It was no different this time.  He did not see the need to tell Dave that it was up because he had been to lots of places where the bonnets have been up and this was no different to any other time.[48]  He agreed, as he told Mr Dohrmann, he had never seen an XF with its bonnet up.[49]

[48]T78

[49]T91

45  The plaintiff has never had a vice grip in his toolbox.  He does not own a pair and never had one.[50]  He had used them before to undo a rusty nail on a bolt at his brother’s place years ago.  He had never seen one holding a bonnet up before.[51]  He agreed he told Mr Dohrmann he knew what vice grips were and that he had used them in the past.[52]

[50]T78

[51]T80; T198

[52]T80

46  After he got the side moulds off, he had both hands on the bonnet trying to push it down but it would not go down.  That is when he looked under and saw the vice grips on the strut and he then thought that is what is stopping the bonnet from going down, so he walked around the side and released them out of the way.[53]  When he saw the vice grips, he thought he needed to get them out of the way so he could shut the bonnet.  He never thought the vice grip was holding the bonnet up; he just wanted it out of his way so he could shut the bonnet.  He did not think he needed to give it a thought at the time.  He had never seen a vice grip holding up a bonnet before.[54]

[53]T79

[54]T80

47  He did not know it was holding the bonnet up, he just thought it was stopping it from closing.  He did not think the bonnet would fall quickly if you removed the vice grip; he would not have done it if he thought so.[55]

[55]T81

48  He later said that at this point (the first attempt trying to push the bonnet down), he saw something there on the strut but he did not know it was a vice grip until he got closer.  He tried to shut the bonnet and it would not go down.  He then went around to the side and that is when he noticed the vice grips were hanging on it.  He thought they were in the way so he would get rid of them –

“… and that’s when I tilted myself inside and I was looking at the release mechanism and it was really tight and wouldn’t let go and then when it finally let go, I didn’t get the chance to get me arm out, I got me head out, but not me arm.”[56]

[56]T88

49  He could see the vice grips clearly but had to get right under the bonnet to release them with his right arm.  The vice grips were facing towards the passenger side so he had to put his arm all the way in.  They would not release, they were really, really tight “so [he] sort of had to get in there and really give it a good squeeze”.  With his left hand, he was holding the bonnet/himself up so his feet did not slide out from under him as the floor was greasy.[57]  He did not ask for the vehicle to be moved from the greasy floor. They had “worked on places like that before”.[58]  

[57]T82

[58]T83

50  Having seen the vice grips on a strut for the first time, he did not ask for advice or assistance because he did not think he needed to.  He “did think” when doing these jobs.[59]   He “did not see the need” to ask someone at WP or at premises for advice on how to do the job.  There were two of them working on it.  He did not ask Paul for help and Paul did not say anything about it.  He did not see the need to ask Paul to hold the bonnet while he undid the vice grips.[60]

[59]T84

[60]T85

51  The bonnet fell on his arm, not his shoulder.  He pulled his arm backwards and injured his shoulder.  He could not remember any bruising or visible signs of injury.[61]

[61]T85

52  He did not think there was any need for someone from WP to come out to the premises and assess the job but he mentioned that Paul had done the WorkSafe “thing” over three months and had to pass that to keep being a windscreen fitter.  It was something the plaintiff never had the chance to do.[62]

[62]T86

53  The plaintiff “possibly” told Mr Dohrmann that he assumed the vice grips were clamped onto the strut because the strut was low in gas and would not support the bonnet.  What he had meant was he had come across struts that were low in gas before but not one that was “completely knackered like that one”.[63]  He then denied he made this assumption – he thought the strut might be low in gas but he did not think the bonnet would fall.[64]  He then again agreed he had made this assumption.  He did not see the need to get Paul out of the vehicle to hold the bonnet while he removed the vice grips.  He did not think the gas strut itself had no gas in it.  He would not have released it if he knew the bonnet would have gone down immediately without support – he just did not know it was going to happen.[65]

[63]T93

[64]T94

[65]T95

54  He agreed he had told Mr Dohrmann that he had dealt with struts in the past that were low on gas, but he did not say he was expecting the strut to slowly collapse or drop after he removed the vice grips as had occurred on other occasions as “[he] had come across bonnets that hadn’t gone down before, it had like a masking tape wrapped around the strut, but not vice grips”.[66]  He had been able to unravel the tape with both hands and the bonnet still had not fallen.  It was a sign the strut was low in gas but it was not “buggered”.[67]

[66]T96

[67]T102

55  By taking the vice grips off, he thought the bonnet “may slowly fall down, maybe”.  But he did not see the need for any assistance to help him with that because you could usually hold the bonnet up with one finger even if the strut was bad.  He had never seen a strut, even if low on gas, go down immediately upon release.  He had never before seen a vice grip attached to a strut that is low on gas.[68] 

[68]T96

56  He could usually hold the bonnet up with one finger even if the strut was bad – his thumb should have been enough.[69]

[69]T97

57  Irrespective of whether he held the bonnet with his left thumb or whole left hand, the bonnet would have come down anyway.[70]  He did not actually hold the bonnet when the vice grip was taken off so he did not know its weight.[71]

[70]T98

[71]T99 - told Mr Dohrmann unable to hold bonnet due to weight

58  He did not see the need to find out how much gas was in the strut.  It was a first for him, having never seen vice grips on a strut before.  He was not expecting the bonnet to collapse so quickly and with such force and had never before seen a strut that was completely stuffed.   He had never needed help to lower a bonnet before.[72]    

[72]T101

59  He did not know the strut could be between just a slight lowness of gas to completely out of gas.  If he had known that, he would not have released it.  He did not think about it, he did not see the need to ask Paul to help him and he did not know it was going to fall – most of them do not fall.  They might take seconds before they start to drop a little bit and you can just hold them with one finger.  “I have had some sort of fall down and dong you on the head and they don’t even hurt you.”[73]

[73]T102

60  Years ago he owned a Ford XF.  He would have changed at least hundreds of windshields on a Ford XF.[74]

[74]T72 - may have done 1000 XF Falcon windscreens as Mr Dohrmann reported: T89

61  The vehicle had only one strut.  Later model Falcons had two.  He has never had an XF with a bad strut or had to shut the bonnet on an XF when he had to do the windscreen.[75]

[75]T103

62  He finished the job with Paul.  He could not recall where the next two jobs were.  He could not recall when he finished work that day.[76]

[76]T104

Cross examination - Duo Mobile

63  He does not know Jack Bishop.  He would have been to the premises more than twenty times before the said date and had never had a problem there.  He did not see the need to ask anyone there for help with the job.[77]

[77]T173  

64  He agreed WP did windscreens for Duo Mobile from 2006, although he could not actually remember those early days exactly.[78]  He was not the main fitter.  He would only go there every now and then.  He had never seen a bar or a set of vice grips holding up a bonnet while working there.[79] 

[78]T263

[79]T264

65  He disagreed that he had ever been instructed by WP not to remove vice grips from a strut unless someone was holding the bonnet.[80] When it happened that day it was the first time he had ever seen vice grips on a bonnet strut so he did not know where that (Rick Woodruff’s answer) came from.  It was not true.[81]

[80]Rick Woodruff, D1 Manager:  Answer to Interrogatory 4

[81]T177

66  He was also not told that if a vehicle was not ready for windscreen replacement to move on to the next job and return to the first vehicle when it was ready.[82]  They were told just to get them done:

“If you can do it on the hoist, do it on the hoist.  If the fellow who is working on it cannot stop working on it then you can go on to the next one but they’re just working on it, he said ‘There’s the car there, it’s right for you to go’.  You can do it there, it’s fine there.  The wheels are touching the ground.”[83] 

[82]Answer to Interrogatory 12

[83]T179

67  He would not have seen the need to tell Mr Dohrmann that was what he had been told.[84]  

[84]T181 - Mr Dohrmann was provided with other material that mentioned this issue

68  He remembered the fellow on the day as Dave.[85]  He had not seen him for a while.  He saw him probably a month ago for the first time in years.  He did not ask him if he was coming to court.[86] 

[85]T180

[86]T181

69  Duo Mobile’s counsel then stated:

“Well I’ve now asked him whether he’s coming to court  and he - I think he is coming to court … and he will give evidence he would never have taken you to a two post hoist with a car on a host and said it’s right to go.”

70  The plaintiff responded:

“Like I said it was either him on the day or it might have been somebody else.”[87]

[87]T182

71  Having been told again by counsel that Dave McCumber would not have given the plaintiff that direction, the plaintiff then responded:

“I’m not sure what his name was, I think it was Dave … Somebody did.”[88]

[88]T186

72  Later, when counsel suggested it was obvious the vehicle was being worked, located on the hoist with its bonnet up, the plaintiff replied:

“Not when you get guided up into the shed and they tell you the car’s out the back and then you get up there and somebody else says to you ‘That’s the car there’ which you already knew because you pulled in behind it.[89]

There was somebody out of the front of the business that said, ‘It’s inside up the back.  You can drive inside and park there if you want to and do it in there’.  I said, ‘Yeah no worries’.  … There was somebody in there , I can’t remember who it was, said, ‘That’s the car there’.  We already knew that anyway …  It was either the same person or a second person. I cannot remember who they were on the day.  I didn’t think it was important on the day.  I just got told ‘that’s your car there’ and we just done the job that’s all.” 

[89]T222

73  He did not ask what was happening with the vehicle or ask that it be taken off the hoist because it was only a little bit trickier doing it on the hoist.  “It’s something we have been shown and told how to do … It’s nothing new.”[90]

[90]T223

74  He then said he did not know who it was who told him the vehicle was ready to be worked on.  Counsel for Duo Mobile then said “Because it wasn’t Dave McCumber I can assure you”.  The plaintiff responded:

“ … I never said it was.  I remember I spoke to somebody on that day and his name might have been Dave.  That’s all I said.”[91]

[91]T226

75  He agreed he knew who Dave McCumber was.  He might have seen Dave originally out the front and it might have been somebody else up the back, he could not remember who it was but –

“… somebody guided us to the car.  We were already parked there anyway and knew which car it was.  He said the car is there to be done we did it and that’s all.  The important thing was the car was right to go and we could do it.  That’s all.”[92] 

[92]T226

76  He could not remember who it was who said “it is right to go”.[93]  

[93]T265

77  The plaintiff had never been told by his manager never to work on a vehicle that is being worked on or to ask his workmate to hold the bonnet when releasing vice grips.[94]

[94]T223

78  The plaintiff has not seen Paul McKay for years and has not asked him to come to Court.  He has not spoken to him.[95]  He did not know whether Paul was coming to Court to give evidence.[96]

[95]T181; T207

[96]T257

79  The plaintiff had been trained and went out with Rick and his brothers when they were fitting and replaced a windscreen on a vehicle on a hoist.  They were told as long as the wheels were touching the ground, it is fine because the stabilisation of the body of the vehicle is centralised.  As long as you leave it for at least an hour on the hoist, the glass will not crack.  That is “the way we were taught to do them on a hoist by the people that owned the place”.[97]

[97]T187

80  He disagreed there was no way that Mr Bishop would have allowed him to do any job that was going to hold up a hoist for an hour or two – “that’s what happened”.[98]  When told there is no way Dave would have pointed to a vehicle on a hoist and told him to start work on that –  “we were guided in up to the back and he said ‘that’s the car there’ and that’s what we did and that’s what happened”.[99]

[98]T189

[99]T190

81  Probably hundreds of times he has done windscreens on cars on hoists.  If he had come back to work and told the manager he had not done the job because the vehicle was on a hoist, he would have been told just to get the job done on the hoist – “drop it down so the wheels touch the ground and do it”.[100]  “We’ve been taught that the wheels have to be touching the ground.”[101]  “It is not a problem the car being on a hoist, it’s a problem it being moved, within an hour of the work.”[102]  They used Bostik, with an hour drying time.  It is “trickier, not much,” working on a car on a two-post hoist.[103]

[100]T190

[101]T192

[102]T191; T194

[103]T194

82  He disagreed he had been trained not to start work on the windscreen of a vehicle that was being worked on.  That was something that happened all the time, “even at Barry James Smash Repairs”.  He did not know if someone was working on the ute beforehand:

“We were told the windscreen in the car was up the back we drove in there, parked behind it, it was on the hoist and he said ‘That’s the car there’.  ‘No worries’ and we done the job on the hoist.”[104] 

[104]T195

83  Unfortunately, sometimes they had to start working on a windscreen when someone else was working on the car.  He accepted that if the car was up on a hoist, and bonnet open, something would have been happening with the car.[105]

[105]T197

84  His brother, Callum, told the plaintiff sometime after his second operation that when he used to work at Windscreens O’Brien in Melbourne they were not allowed to work on hoists.[106]  The plaintiff had never been told not to work on cars that were on a hoist.[107]

[106]T227- noted in Mr Dohrmann’s report

[107]T228

85  He and Paul definitely put a windscreen in a XF falcon at the premises while the vehicle was on a hoist that day.  He had done maybe more than 100 jobs on hoists at other places.  This was the only time he did one at the premises.[108]

[108]T259

86  He did not know what the vice grip was there for.  It was in his way so he removed it as it was stopping the bonnet from going down –

“I didn’t know it was, um, holding the bonnet, so I, ah, I didn’t see the need to ask anybody to help me.  I didn’t know it was going to fall, so.   I didn’t know it was going to come down.  I’ve been and worked on lots of other cars with struts on before and - I reckon just about all of them in the past, if you lift the bonnet up and let it go and it will stay there.  And maybe a couple of seconds later, even minutes later it will slowly fall down on you. Not something that’s got no gas in the strut whatsoever.”[109] 

[109]T199

87  He knew if he released the vice grips he could get the bonnet down out of the way.  He was hoping something would happen and he could get around and pull the bonnet down but he did not know the bonnet was going to fall like that, with no gas in the strut at all.[110]

[110]T199, 200

88  “Originally” he did not know why the vice grips were there.  After he looked, he thought they were in his way and he needed to remove them.  However, he accepted that he assumed the vice grips were there because the strut may be a little bit low on gas but not out of gas at all.  It is probably true that he expected the bonnet to drop slowly.  He just expected to be able to just pull it down himself after releasing the vice grips – not that it was going to fall.[111]  He now agrees these struts are very unreliable but he did not see them as being so at the time of the incident.[112]

[111]T200

[112]T212

89  He did not see the need to ask Paul to hold the bonnet.  There was no need for anyone else to hold a bonnet for him.  He had never asked anyone or been asked by anyone to hold up a bonnet.  It would not have mattered if he was holding the bonnet with his hand as it would have fallen anyway.[113]

[113]T201; T210

90  His Answer to Interrogatory 2 that he was aware gas struts could lose pressure and fail would have been correct.  However, he did not know a bonnet could fall without warning, as he had never seen that happen before.[114]  He maintained that he knew the vice grips were stopping the bonnet from going down but not that they were holding it up.  He was not sure whether his answer “No” to whether he considered why the vice grips were attached to the strut was true.  He could not remember what he was thinking when he released the vice grips.[115]  He did not see the need to ask anyone why vice grips were attached to the strut – “I thought we’d just unclamp it and go around the front and pull the bonnet down, that’s all.”[116]

[114]T203

[115]T205

[116]T206

91  He does not recall himself going about the job without really thinking about it when it was suggested that was the case.[117]

[117]T210

92  On the day, he remembers Paul was late but he does not recall feeling rushed, as Mr Dohrmann reported, but he probably told him that.[118]  

[118]T208; T223

93  On the day, he knew some struts could be low on gas and therefore they would drop but he had never seen one like that before.  When he saw the vice grips, he thought he had to get them out of the way so he could drop the bonnet down.  He was not sure what they were there for.  He thought it was a “bit silly” putting them there as they could damage the strut.  He just pulled them out of his way so he could drop the bonnet down.  He did not think they were holding the bonnet up, he thought they were stopping it from coming down.  It would be just like when you take the duct tape off and the bonnet maybe comes down slowly or does not come down at all.[119]

[119]T213

94  Having initially said a bonnet slowly fell on him on before and tapped his head, he agreed he in fact said he was “donged” on the head.[120]

[120]T216

95  When it was suggested that Jack Bishop always backs up a pneumatic strut with a clamp to make sure it stays stable, the plaintiff said he had never seen vice grips on a strut before.[121]  He was not aware that Jack Bishop backs up pneumatic struts with something mechanical.[122]

[121]T216

[122]T217

96  If the plaintiff needed to, he used a broom to hold up the bonnet as he supposed a pneumatic device needed a further support but he would not put vice grips on a strut.  He did not know of any special tool to perform this function.  He did not dispute you would have a backup when working under a bonnet as you did when working under a car.[123]

[123]T256

97  He could not have held the bonnet up with one arm.  He would have needed “more than three arms” to hold it where he was standing down the bonnet.  All the leverage was at the front of the bonnet, not down where he was.[124]  His arms could not have reached the vice grips from the front of the vehicle.[125]  He would not have even tried to because it is not possible.[126]  “If he had leaned forward that far, the bonnet would have “swallowed [him] whole”.[127]  He did not put his right hand under the falling bonnet.  The bonnet just caught his right hand - grabbed his arm as he pulled it back.[128]

[124]T217

[125]T251; T253

[126]T252

[127]T253

[128]T220

98  After the bonnet fell, he probably yelled out to Paul to get the bonnet off him.  The plaintiff did not know what to think about the fact that no one else at the premises noticed anything.[129]

[129]T275

99  He did not report the incident to Jack Bishop as he thought he had just pulled a muscle and he did not see the need to report it.  He did not think it was “something that was going to keep going and haunting [him].”[130]  He reported it to WP on the day and his workmates would have known about it later on but he could not recall telling them about it.[131]

[130]T174

[131]T175

100  There was a modules training provided by WorkCover on the plaintiff’s job.  He was not at work when the training started as he was on holidays.[132]  He asked Rick when it was his turn to do the training and he replied that the plaintiff had said he did not want to do it.  The plaintiff denied he had told him that and said he needed the training to be qualified as a fitter.  He waited to hear when he would get his turn to do the training but he heard nothing.  WP just let him fit windscreens.[133]

[132]T275-276

[133]T277

101  In re-examination, the plaintiff confirmed the vehicle was on a hoist when worked on.  The job at the premises took half to three quarters of an hour.  No one from Duo Mobile came over and told them to stop working on the vehicle.[134]

[134]T278

102  Having been shown the job book he confirmed, they did the job at Duo Mobile first.[135]  He did the job the way he had always done it.[136]

[135]T280

[136]T281

103  He could not hold the bonnet, without the strut, because of where he was standing with the weight up the front.[137]

[137]T282

104  He confirmed that someone at the premises directed him to the vehicle.  He was definitely thinking about the job when he was doing it.  The job definitely involved a bit of attention and skill.  He needed to watch what he was doing  when cutting the windscreen with sharp tools.  He confirmed he never saw a vice grip on a strut at the premises before this day.[138]

[138]T288

105  He last saw Paul at his mother’s funeral in September 2018 and last worked with him in 2013.  He was pretty certain – “not 100%” – Paul was still working at WP.[139]

[139]T289

Documents

106  WP’s Register of Injuries contained an entry dated 28 September 2012 of “shoulder injury due to bonnet falling”.  The time of injury was 11.30 and the witness, Paul McKay.

Expert evidence - Phillip Dunn, motor mechanic

107  Mr Dunn is a professional mechanical engineer whose work has involved motor vehicles for all of his long professional career.[140]

[140]T292

108  In preparing his report, he was provided with a number of documents, including the plaintiff’s affidavit, Statement of Claim, the Defences, the Employer’s Injury Claim Form, photographs of an XF Falcon with its bonnet up and the type of vice grips involved in the incident. 

109  The plaintiff attended Mr Dunn’s workshop on 22 May 2020 with his son.  They came in an XF Falcon ute, the same model as that involved in the incident. 

110  He asked the plaintiff to demonstrate how the incident occurred and took photographs of the position where he started from and his son demonstrated where the bonnet fell on the plaintiff’s shoulder.  He also took photographs of where the trim was fitted to the vehicle and where the plaintiff’s assistant was sitting.[141]

[141]T297

111  He was then asked to do a supplementary report pursuant to which he had created some videos.  He agreed the video really showed if there was a fully functioning strut, it stayed up well, and the less gas, the more likely it was to fall.  He did not know how much gas there was in the strut on the film.[142]

[142]T307- on this basis I refused an application by counsel for Duo Mobile to tender the video as it would not be of assistance

112  He concluded that if the vehicle had been presented with the bonnet closed, and the space providing clear and easy access to the windscreen, it is likely that the replacement would have proceeded safely, the way the plaintiff had done hundreds of other installations. There would be no warnings or precautions other than those normally undertaken by the fitter.

113  On the contrary, the plaintiff was asked to replace the windscreen while the vehicle was situated on the two-post hoist, and presented with the bonnet up.  He should have been warned to be careful of the bonnet because the strut was faulty.  He should have been warned the bonnet was being held up by a pair of vice grips, and that those vice grips were tightly applied, and he should have been warned that he would need an assistant to hold the bonnet up while they were released. 

114  The plaintiff was presented to work in an unsafe workplace and the cause of the accident was a gas strut with locking pliers, rather than repairing or replacing it.[143]

[143]T293

115  The plaintiff told him the vehicle was still on a hoist, although it was not elevated far, and so the driver’s door could not be opened fully, because the hoist mast was preventing it from opening further.  That slowed down the assistant and limited the plaintiff’s access to the screws.  His door was not restrained in the same way and he finished removing the trims from his side first, so he moved around the front of the vehicle and attempted to pull the bonnet down.

116  It would not budge, so the plaintiff moved to the driver’s side beside the front guard to inspect the bonnet strut, and found it had been jammed with a pair of vice grips.  Their handle was facing in, so he lent in under the bonnet to access the handle.  He determined the pliers could be released by pressing on the release lever.  It did not however move easily.  He had to reposition himself closer to the vice grips to try harder.[144]

[144]T297

117  The plaintiff had his left hand about 300 millimetres from the rear edge of the bonnet.  The handle released suddenly after he tried really hard.  The bonnet started moving and he was unable to hold it up with his left hand, being too heavy and being in an awkward position, so he quickly moved away from under the bonnet, clearing his head and moving his right hand under it to stop it falling.[145]

[145]T298

118  The plaintiff was unable to stop the bonnet’s momentum so he pulled away further, but was not fast enough to clear his arm and shoulder.  He was trapped there until his assistant was able to come around past the hoist post and lift the bonnet free from him.

119  Mr Dunn weighed the bonnet at 15 kilograms using bathroom scales.[146]

[146]T296

120  In his report, Mr Dunn described the function and construction of a gas strut.  The pressure of the gas forces the piston forward and pushes the rod forward, which provides the force to hold the bonnet up or hold the part up that it is working against.[147]  He provided a chart which showed the more gas in the strut, the better supported the bonnet.[148]

[147]T299

[148]T305

121  It would take several years for a strut to leak.  More than half of these type of struts would probably fail in five or six, seven years. Leakage would be apparent because the bonnet would not stay up.[149]

[149]T300

122  In the 1980s and 1990s, struts would not be replaced.  Now, the cost of the struts had come down, so you would probably prefer to buy a new one.[150]  Replacing a strut is a very quick and simple process.[151]

[150]T300

[151]T301

123  He had a pair of vice grips which he described as pretty standard.[152]  This type is used for clamping onto something you want to turn.  The knob on the end adjusts the position of the jaws.  It also provided the way of holding the strut up so it did not fall down.  It is designed to rotate so it can be clamped around something that is round and then used to turn it. In this case, it was clamped around the part so the strut could not move.  The cylinder could not come down.[153]

[152]Figure 8 photograph in his report

[153]T310

124  His first thoughts were that jamming the strut by clamping locking pliers on it was unthinkable.  To treat a polished shaft or surface in such a manner was reckless and irresponsible because it damaged the critical operating surface that could lead to outright leakage and/or failure.  The hardened shaft is also a low-friction surface and it is likely for the locking pliers to slip easily.  It is an unreliable way to secure the bonnet.[154] 

[154]T311

125  It was really inconsequential if you damaged the shaft if you were not going to repair it.  A mechanical or technical person would not damage a polished surface like that.  One of his objections was that it damaged the surface.  The strut has a low-friction surface, so attempting to put pliers on it is unreliable, so you need to tighten it very tight to in fact achieve something.  If you tightened it hard enough, you would stop the cylinder falling down.[155]

[155]T312

126  Gas struts do deteriorate over time.  Failure of struts has been frequent enough for a small industry to be created to repair soft ones.  Most motor mechanics would have encountered soft gas struts as a repair task or had to deal with a sagging bonnet.  The condition would be obvious when someone attempted to open the bonnet due to the force required to open it and it would not stay open unattended.   It is not expensive to repair a gas strut.[156]

[156]T313

127  The condition would be obvious, because when go to open the bonnet you would find it hard to lift.  Once the bonnet got past 10 or 15 degrees, the strut starts to help you lift it.   If you have not got that assistance you would notice it straight away when trying to lift it up.[157]

[157]T313

128  A car should not be presented to the plaintiff with the bonnet up.  He is a windscreen fitter, not a mechanic.  He would be less likely to be aware of a failing gas strut compared to a mechanic who needs to open the bonnet of every car he works on.  A fitter would likely not use vice grips in his normal duties and they would not be part of his toolkit.  As such, he would be less likely to perceive the danger.[158]

[158]T313

129  If the vehicle had been presented as anyone would expect, the bonnet would not have been up.  Usually a vehicle would not be presented having the bonnet up.  You would just leave the vehicle in the driveway beside the workshop and wait for the job to be done.

130  If a vehicle had been presented for a windscreen replacement, it is not expected it would be suspended on a hoist.  If it was not on a hoist and the bonnet was not up, there would be no reason for warnings or precautions, other than those normally undertaken by the windscreen fitter.[159]

[159]T314, T316

131  In the incident circumstances, the plaintiff could have been assisted by lowering the vehicle from the hoist and moving it to a clear work area and lowering the bonnet so he could access the windscreen, or assist him to do both.

132  In the situation in which the plaintiff was presented, he should have been warned to be careful of the bonnet because the strut was faulty.  He should have been warned the bonnet was being held up by a pair of vice grips and they were very tightly applied and would be difficult to release.  He should have been told that it took two people to apply the vice grips and that the bonnet needed propping up or being held up by a second person while the grips were released.[160]

[160]T315

133  The bonnet struts are clip off/clip on and can be performed in less than five minutes and a new one put in that quickly.  An over-the-phone quote from Windscreen City Bendigo, was remove, repair and fit a gas strut - $25; replace and remove a new gas strut - $45.[161]

[161]T315

Cross-examination - WP

134  Mr Dunn accepted the root cause of incident was the decision to jam the gas strut with locking pliers, rather than repairing or replacing it.  The bonnet not being closed and the vehicle being on a hoist were also significant contributing factors[162]

[162]T319

135  He did not take notes when he spoke to the plaintiff at his workshop, rather took photographs and spoke with him.[163]  He did not clarify with him whether he was holding the bonnet up with his left hand or how he was holding it up as shown in the photo Figure 4.[164]

[163]T320

[164]T322

136  He did ask the plaintiff if he knew what vice grips are about.  The plaintiff told him he had never used them and did not have any.[165]  Mr Dunn accepted the history recorded by Mr Dohrmann that the plaintiff told him he had used them in the past for other mechanical activities was completely at odds with his understanding.[166]

[165]T324

[166]T330

137  He took no instructions about what the plaintiff thought when he saw the vice grips attached to the strut.  He accepted it is actually critical to know the plaintiff’s state of mind when he saw the vice grips on the strut, when assessing whether he required any warning.[167]  He accepted he could have asked the plaintiff whether he perceived danger when looking at the vice grips on the strut.[168]

[167]T324

[168]T326

138  The plaintiff did not tell him, as he told Mr Dohrmann, that he assumed the vice grips were attached because the strut was low on gas.  He did not ask the question to get that answer.[169]

[169]T331

139  It is common enough that gas struts lose gas.  More than 50 per cent could fail in five to six years.  He knew the plaintiff had been working in the industry for twenty-five years and that he owned the same model Ford Falcon.[170]

[170]T325

140  From his own experience, Mr Dunn said, as a fitter, the plaintiff would not need to lift the bonnet to perform that task.  He did not know whether the plaintiff had experience lifting up bonnets when doing work, yet accepted this was relevant.[171]  He assumed from his own workshop experience that a vehicle would not be presented to the plaintiff with the bonnet up.[172]

[171]T325

[172]T326

141  He thought it was obvious having a vehicle on a hoist would make it difficult for any fitter to fit a windscreen.  The vehicle is going to be higher than it would normally be and it is encumbered by two posts on either side which limits access.  It is just an improbable job to even try and fit a windscreen – even if it is only lifted that limited way, that it is taking the weight of the car, but the wheels are touching the ground.[173]

[173]T328

142  He remembered the plaintiff saying that he knew gas struts fail over time.  The plaintiff did not mention that he had had to remove duct tape from struts in the past or that one time a bonnet came down and “donged” him on the head.[174]

[174]T329

143  He accepted that taking off the vice grips and not holding the bonnet up in some way was another root cause of the incident.  However, he questioned the capacity for one person to both hold up the bonnet and take off the vice grips.  He would not attempt to do it himself.[175]

[175]T331

144  He accepted if standing at front of bonnet, he could hold the bonnet up with one hand.  He could then reach in and undo the vice grips holding the bonnet  up with one hand then releasing vice grips – “with difficulty”.[176] “It’s possible.”[177]

[176]T332-333

[177]T334 - see Figure 4

145  He agreed that the sensible thing to do was for plaintiff to get his co-worker to hold bonnet up.[178] It was reasonable to say he should have asked for assistance.[179]

[178]T334

[179]T335

146  He “guessed” that if the plaintiff assumed the strut was low on gas and the vice grips were holding it, then he did not need to be warned.[180]  He should have been told it took two persons to apply the vice grips but he accepted he did not know how the vice grips got on there.[181]

[180]T335

[181]T336

147  He accepted that there could be many reasons why a person would not ask for assistance.  He agreed in this case, it may be that the plaintiff thought he “would have a go” at removing the vice grips, taking a risk the bonnet would not close and that it still had a little bit of gas in in it.[182]

[182]T337  

Cross examination - Duo Mobile

148  Mr Dunn agreed that the last thing a mechanic would want is to have somebody installing a windscreen on his hoist for an hour or so.[183]  No decent mechanic would allow a windscreen to be fitted while a vehicle was on a hoist.[184]

[183]T334; T337

[184]T340

149  He accepted it was reasonable for windscreen fitters who arrived early at a job and the vehicle was not ready, to go off and do another job and come back.[185]

[185]T342

150  It is possible for a strut to be low on gas and for its mechanics not to be working properly.[186]  They fail very rarely but that is possible.  He would never get under a hoist without chocking it up somehow.[187]  However, it was not his experience as he was told Mr Bishop would say that if you do not chock them up with something, bonnets fall down on all their mechanics who have got their heads under vehicles all the time.[188] He agreed, however, it does happen.[189]

[186]T343

[187]T343-344

[188]T344

[189]T345

151  He did not know of a new tool which clamps onto struts to support them.[190]

[190]T346

152  The plaintiff had told him nothing about speaking to anyone at the premises or getting any instructions from WP about how to do the job.  The plaintiff told him he was just told the job had to be done on the hoist but Mr Dunn did not put it in his report.  He agreed that this was extremely relevant.[191]

[191]T347

153  The day before he gave evidence, the plaintiff’s counsel asked him whether he could reach in from the front of the vehicle and unclip the vice grips.  He had not tried to but thought it was possible.[192]  It is not something he would do.[193]  It is quite easy to hold the bonnet up when standing at the front of the vehicle.[194]

[192]T348-349

[193]T354

[194]T356

154  He agreed that it was a very prudent approach to engage two installers.  A  second person on a job is there to assist with all kinds of various little jobs that needed assistance.[195]

[195]T353

155  He accepted that the Falcon XF was quite a “rare-ish type vehicle”, in that it had only one strut and it was known to fail.[196]

[196]T356

156  In re-examination, Mr Dunn confirmed, in compiling his report, he was provided with the plaintiff’s affidavit in which he described being directed to the vehicle by a guy at the premises who looked like he was in charge.[197]

[197]T362

157  When the bonnet started falling, the plaintiff tried to stop it falling with his right hand.[198]  He had less leverage than he would have had if he was standing at the front of the vehicle.[199] 

[198]T358 - Figure 5

[199]T367

158  He never had experience of a good strut being propped up with vice grips.[200]   In fact, he would not use vice grips on a strut, “ever”.  He would not recommend it and he would not ask anyone in his workshops to do that.[201]

[200]T369

[201]T370

Documents

159  WPs diary/job book for 25 May 2012 set out at 11.15am, “Duo Mobile XF s/fit”. What appear to be jobs for other customers were listed at 7.15am, 8.15am and 10.30am.  Other entries were made after 11.30am.

160  In the Claim Form signed by the plaintiff on 21 February 2013 and completed on his behalf, the time of injury was noted as 11.30am.  The injury occurred when he “was releasing a bonnet on a car when it collapsed on his arm overextending the arm backward and tearing the tendon in his shoulder”.  The incident was witnessed by Paul McKay.  It was reported to Susan Cross on 25 May 2012.  The answer “No” was given to the question - “Have you previously had another injury/condition or personal injury claim that relates to this condition?” (right shoulder).

161  Susan Cross completed a CGU Register of Injuries, Incidents and Near Misses form on 19 February 2013.  She set out the plaintiff injured his right shoulder on 25 May 2012 when he “jerked back when car bonnet was falling”. The incident was witnessed by Paul McKay.

DUO MOBILE’S EVIDENCE

Jack Bishop

162  Mr Bishop has been a mechanic for twenty-five years and has operated Duo Mobile for thirteen to fourteen years.  He has had a number of apprentices.  The most important thing they are taught is workplace safety.  Everyone works as a team.[202]

[202]T546

163  There were four to five blokes working at the premises back in 2012.[203]  A  couple of mechanics did big jobs so they might have two or three cars on the go at once.  The other two mechanics would be service and basic repair mechanics, so they would only do one vehicle at a time.[204]

[203]T546

[204]T561

164  The shed in which the plaintiff worked on the vehicle could have been big enough to house sixty cars, but not to work on.  There was a demountable office inside the shed.  Then and now, various people come and go from outside to work on cars. [205]

[205]T547

165  WP were “very easy” when they attended.  They would definitely say “hello” and “we see them drive in”.[206]  It happened a lot that if a vehicles was not ready, WP people might turn and go away.[207]  If the vehicle was not ready – waiting on a part or it could not be taken off the hoist – they would just turn around and go to another job – “We might not see them, the problem is, for four or five hours later.”   Generally, it was “co-operative” with WP.[208]

[206]T547

[207]T547-548

[208]T548

166  From 2007-2014, WP was the main windscreen installer used by Duo Mobile.[209]  He liked WP because they always rocked up with two blokes on the job.  It was a lot safer and quicker.[210] Duo Mobile had a really good relationship with them.[211]  From 2012, WP never complained about how Duo Mobile conducted its business or asked that it change the way it did so.[212]

[209]T548-549

[210]T549

[211]T550

[212]T561

167  He has no memory of the incident himself.[213]  He did not find out about it until April 2018, when boxes of documents arrived from Australia Post.[214]  He spoke to a lady from WP when the boxes arrived.[215]

[213]T554

[214]T550 - Letter from plaintiff’s solicitors to Duo Mobile serving the s134AB application dated 11 April 2018

[215]T551-552

168  You cannot fit a windscreen on a vehicle on a two-post hoist and WP would not do so as far as he knew.  It is not something he would ask them to do.  The vehicle flexes and it changes the shape of the windscreen.  When you let it down, anything can happen -  “so they won’t warranty it”.  No windscreen place would do it.[216]

[216]T553

169  After a windscreen had been installed, he definitely would not then put the vehicle on a hoist that day.[217]  A hoist was a valuable tool and you could not have a car just sitting there on it.  He would not let a customer drive a vehicle an hour after a windscreen had been installed because it would cause an issue.  It would need to be at least two to three hours before it could be driven.[218]

[217]T559

[218]T560

170  He does not trust any amount of bonnet struts, let alone one.  As a mechanic, you do not put your trust in something that can fail so easily or is not fixed.  So many different times it can collapse, so it can catch you unaware.  It does not take long to just make sure and lock it.[219]

[219]T555

171  There are different ways of locking a strut, but most mechanics he works with where the struts are not real good, prefer vice grips because you can lock them on really hard.[220]  He used back-up on everything – “it’s Rule 101 in a workshop”.[221]

[220]T556

[221]T556

172  The fact that the bonnet was up and there was a clamp on a strut does not  surprise him.  There would have been at least four people around at the premises at the time and the plaintiff could have asked if he was not sure.  One could have held the bonnet for him or shut it.[222]

[222]T556

173  It is very easy for one person to take the vice grips off a strut.  You have to do it from the front of the car.  You never do anything from the side – “You just hold the bonnet up, support it, left, right hand, reach in and remove your lock with one hand - Easy”.[223]

[223]T557

174  It is very easy to hold up the bonnet and lean in.  If the vice grips are really tight and he could not get it with his left hand, he would hold the bonnet up with his left and then undo the vice grip with his right.  Obviously if he was still  struggling, then he would get some assistance.[224]

[224]T558

Cross-examination - the Plaintiff

175  In May 2012, Duo Mobile had had four two-posters and one four-poster hoist operational during the day.[225]  The shed would have been 50 metres across the back and 50 metres long.[226]

[225]T563

[226]T562

176  The workshop at the premises was not chaotic.  It was a busy, productive workshop, “but it wasn’t – definitely was no dealership or Flinders Station, that’s for sure”.[227]

[227]T564

177  Most of the time, but not always, cars would be ready for WP when they arrived.  It was a matter of just Duo Mobile stopping on that job and moving on to the next one.  So, obviously, they had a lot of work to do and could not commit to a time with WP, who was very unreliable with their time.  If they said “in the morning”, it could be well in the afternoon.[228]

[228]T565

178  If a windscreen could be fitted on a hoist, he would have used that opportunity probably to get it done but realistically, it just cannot be done because you cannot open the doors properly and get access to the windscreen properly.[229] The weight is still on the vehicle so the body is still manipulated, so it does not  make sense that the tyres have to be touching the ground.  The vehicle is not in the right shape so WP would not fit a windscreen on a hoist, regardless of whether the wheels were touching the ground or not.[230]

[229]T566

[230]T567

179  He would not have allowed windscreen fitting to happen on the hoist at the time because mechanics were always going to have a hoist over working on the ground.[231]  It was his policy not to fit windscreens while the vehicle was on a hoist.   WP would not do this nor would “any other windscreen place”.[232]

[231]T567

[232]T568

180  If the plaintiff was instructed to perform work on the windscreen on a hoist by a member of his staff, that would have been contrary to his instructions.[233]  He rejected that was exactly what happened on the day.[234]  That would not have happened.  There is no way Mathew or Dave, the mechanics who were working then, would have taken the plaintiff to the vehicle on a hoist.  He was very, very confident it did not happen.[235]

[233]T568

[234]T569

[235]T569

181  If he was aware a gas strut low was low on gas, in accordance with his safety protocol, it would be brought to the plaintiff’s attention:

“At the end of the day, everyone’s got to go home.  It can be a bit of a horrible job cutting your hands and hitting your head and lifting tyres off … but we all want to go home safe so anything, I think is a risk, I probably would not invite them in the first place …  Knowing things hold stuff up … they only have to ask, there’s always someone around.  My blokes know if they go inside, if they’re not confident with something, leave it, walk away.”[236]

[236]T571

182  However, given he cannot recall the vehicle, he cannot recall there was any instruction from any member of his staff to the plaintiff about the dangers of the strut being low on gas.[237]

[237]T571

183  In 2012, it would have cost about $60 to $80 to replace an XF gas strut.  It is not as cheap as Mr Dunn suggested. [238]

[238]T572

Cross examination - WP

184  While he cannot remember the day of the incident, he was always at the premises.  He does not know or have any record of what time WP turned up that day.[239]

[239]T572

185  If this XF was on a hoist, it would have been pushed off the hoist to have a windscreen done.[240]  He accepted Duo Mobile wanted to get as much work as possible done on the car before the windscreen is fitted.[241]

[240]T574

[241]T574

186  Generally, they plan the windscreen fitting in accordance with when the other works on the car are finished.  The windscreen is then done after.[242]  The last thing they want is the car not being ready, so WP turns around and goes away for four to five hours, sometimes not making it back on the day.[243]

[242]T574

[243]T575

187  Just because a bonnet is up, does not mean the car is not ready.[244]  WP are not the type of people to see a bonnet up and then leave for four to five  hours.[245]  The expectation is that when the bonnet is put up, it is put down after work.[246]

[244]T576

[245]T575

[246]T576

188  He would never take vice grips off a bonnet strut without holding up the bonnet.  If that happened, the bonnet is going to fall down pretty quick, as we have seen by some expert’s video, “that it’s quick as a flash”.[247]

[247]T576

189  He agreed WP would turn up or drive in, and someone from Duo Mobile would direct at them and say – “Look, it’s over there.  That’s your car”.  He thought that was probably what happened on the day.[248]  He repeated that there was nothing unusual where a car has its bonnet up with vice grips on the strut.  It would have happened before.  His rule was that you had to have a bonnet locked.[249]

[248]T577

[249]T578

Documents

190  A number of the plaintiff’s Answers to the first defendant’s Interrogatories were tendered by the second defendant.

191  As at the said date, the plaintiff was aware gas struts could lose pressure and fall (stop holding the bonnet).  He was not aware that if a gas strut failed, the bonnet could drop without warning.[250]  Prior to the said date, he had never previously seen a car bonnet with vice grips clamped onto the bonnet strut or struts, or used vice grips to clamp onto a bonnet strut to ensure that the bonnet stayed up, did not fall, or remove vice grips, or observe vice grips being removed from the bonnet strut.[251]

[250]Interrogatory 2

[251]Interrogatory 3

192  On the said date, prior to the incident, when asked how the bonnet of the vehicle was being held up, he said he now knew the bonnet of the vehicle was being held up by vice grips.  There was one bonnet strut he believed was a gas strut.  There was a pair of vice grips clamped onto the strut.  There was not a steel rod that was being used, or which could have been used to hold up the bonnet.[252]

[252]Interrogatory 7

193  On the said date, immediately prior to the incident, he released a pair of vice grips that were clamped onto the bonnet strut of the vehicle.[253]  When he saw them, he did not realise they were clamped onto the strut to ensure that the bonnet stayed up, or that if they were removed without someone else or something else holding up the bonnet, the bonnet would close, or before releasing the vice grips, consider why they had been clamped onto the strut

[253]Interrogatory 8

194  Unsure why the vice grips had been clamped onto the strut before releasing them, he did not ask Paul McKay, or any other person, why they had been clamped onto the strut or, before releasing them, or ask Paul McKay, or any other person, to hold up the bonnet while he released the vice grips.  He did not see any reason to ask anyone to hold up the bonnet while he released the vice grips.  When he did so, he did not hold up the bonnet, as he did not see any reason to.[254]

[254]Interrogatory 9

195  Prior to the said date, the plaintiff had not been instructed by WP not to remove vice grips clamped onto bonnet struts unless someone was holding the bonnet.  Nor had he been instructed that if a car was not ready to be worked on, to go to another job and come back when the car was ready to be worked on.[255]

[255]Interrogatory 10

196  Rick Woodruff, manager and part owner of WP, swore Answers to the plaintiff’s Interrogatories.

197  In terms of training, instruction and induction provided to the plaintiff for the work he was doing at the time of the incident, he deposed that the plaintiff had then been working as a windscreen fitter for about approximately twenty-five years and received the on-job training and instruction throughout that time.[256]

[256]Interrogatory 2

198  Further, he trained other workers because of his experience.[257]

[257]Interrogatory 16

199  The plaintiff had been instructed not to remove vice grips from a strut unless someone was holding the bonnet.[258]  He was instructed not to remove multigrips unless someone was holding the bonnet.  Two workers were sent out for the job.  He was furthermore instructed that if a car was not ready for windscreen replacement, to move on to the next job and to do the first job when the car was ready.[259]

[258]Interrogatory 4

[259]Interrogatory 6

200  When asked whether WP, prior to the incident, made any enquiries of Duo Mobile as to the vehicle’s readiness to have the windscreen replaced before the plaintiff was instructed to attend at the premises on the said date, Mr Woodruff answered:

“The second defendant requested that the first defendant attend the second defendant’s premises to replace the windscreen on the car.  In almost all instances clients, including the second defendant, called the first defendant when the windscreen was ready to be replaced.  In the unlikely event that the car was not ready for windscreen placement when the plaintiff attended at a job, he was to move onto the next job and return to do the first job when the car was ready.”[260]

[260]Interrogatory 12

201  In terms of any risk assessments undertaken, the risks associated with replacing a windscreen had been assessed prior to the incident, and the plaintiff had received instruction and direction over twenty-five years in relation to this task.[261]

[261]Interrogatory 18

202  The plaintiff should have asked his co-worker to hold the bonnet while he removed the pair of vice grips.[262]  His co-worker was available to assist him, including with respect to holding the bonnet while the plaintiff removed the pair of vice grips.[263]

[262]Interrogatory 20

[263]Interrogatory 21

Credit

203  Counsel for WP submitted the plaintiff was an unreliable witness, relying to a large extent on what were said to be inconsistencies between his instructions to Mr Dohrmann, whose report was not relied upon, and his evidence in Court about his experience with vice grips, working with cars with uplifted bonnets and his knowledge of what would happen if vice grips were removed from the strut. [264]  

[264]T655

204  A further attack on the plaintiff’s credit was later made in terms of his damages claim.  It was submitted he played down the extent of his pre-incident shoulder problems and also the consequences of his neck injury suffered in the 2007 transport accident.  It was submitted, given the plaintiff’s viva voce evidence, his 2013 TAC affidavit was “very close to perjury”.[265]

[265]T707

205  Counsel for Duo Mobile submitted the plaintiff’s evidence of working on a hoist “was a lie”[266] and that he gave inconsistent answers as to his knowledge of what would happen if he removed the vice grips.[267]

[266]T608

[267]T623

206  Counsel for the plaintiff submitted the plaintiff is a witness of credit, doing the best he can to give evidence in the circumstances.[268]

[268]T722

207  In my view, the plaintiff is an unsophisticated man.  He has had little education.  He was reluctant to concede he was aware the bonnet would fall if he removed the vice grips, but ultimately did so.  His evidence about working on the vehicle whilst it was on a hoist was not credible.  Despite these matters, it was my impression that when he gave evidence before me, in general he was trying to answer questions frankly.[269]

[269]T727

208  Further, I do not accept he was trying to mislead the Court by playing down a significant shoulder condition pre incident, as counsel for WP suggested.  The medical evidence confirms the plaintiff’s evidence in this regard.  Further, while there were significant problems with his neck which he deposed to in late 2013, Dr Gibney confirmed that the plaintiff’s neck has not played any significant role in his presentation for the last five years.

209  Phillip Dunn was an honest, credible witness who was prepared to make appropriate concessions as to the inadequacy of his investigations and report, acknowledging relevant questions he failed to ask the plaintiff such as his perception of a danger when removing the vice grips.  He also made assumptions based on his own experience, not the plaintiff’s experience.[270]

[270]T621

210  Jack Bishop was a straightforward and truthful witness.  While he knew nothing of the incident circumstances, he seemed to have a genuine concern for the safety of those working on the premises, explaining the safety protocols he had in operation on the said date.

Legal principles

211  The High Court has emphasised the necessity for a court in determining a claim in negligence to identify, with some precision, the risk which is said should have been foreseen.[271] This then enables the enquiry as to foreseeability to proceed, assuming the particular risk is foreseeable to determine what steps, if any, should have been taken to alleviate or ameliorate the risk.[272]

[271]Vairy v Wyong Shire Council (2005) 223 CLR 422 at paragraphs [26] and [60]; State of New South Wales v Fahy (2007) 232 CLR 486 at paragraphs [78], [116] and [220]

[272]Iannello v BAE Automation and ElectricalServices [2008] VSC 544 per J Forrest J

212  In Hardy v Mikropul Australia Pty Ltd,[273] J Forrest J stated:

“It is necessary to identify with some specificity the nature of the risk which must be foreseen.  It is not sufficient to address the issue generally, although it is unnecessary for a defendant to foresee the precise risk of injury or damage or how it may occur.  … .”

[273][2010] VSC 42 at paragraph [227]

213  As the Court of Appeal stated in Southern Colour (Vic) Pty Ltd v Parr,[274] in order to determine whether the defendant breached its duty of care to the plaintiff, it is necessary to correctly identify the relevant risk against which the defendant was alleged to have failed to take adequate steps to protect the plaintiff.[275]

[274][2017] VSCA 301 at paragraph [53]

[275]See also Chapman v Hearse (1961) 106 CLR 112 at 120-21

214  Where the court determines that a relevant risk of injury was reasonably foreseeable by a person in the defendant’s position, in an industrial setting, the court is then required to consider the content of that duty thus owed by the defendant to the plaintiff in respect of that risk.  In determining that question, in Wyong Shire Council v Shirt,[276] Mason J stated, in a passage that has since been consistently applied:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.  A risk which is not far-fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.  The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”[277]

[276](1980) 146 CLR 40

[277](ibid) at 47-48

215  It is well established that in order that a defendant be held negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances in which the plaintiff was injured might occur.  Rather, what must be reasonably foreseen is the nature of the particular harm that ensued or, more relevantly, the nature of the circumstances in which that harm was incurred.[278]

[278]Erickson v Bagley & Anor [2014] VCC 2126 at paragraph [26] per Judge Brookes

216  The risk in this case was that a worker carrying out his duties under a car bonnet may suffer a serious injury if the bonnet falls when he removes vice grips from a supporting strut which is low on gas.

217  In my view, each of the defendants should have appreciated the risk of injury in those circumstances.  Such a risk was not too farfetched or remote.

218  There was, in my view, a clear risk of injury which should have been anticipated by each of the defendants.  A reasonably practicable precaution in the circumstances would have been to warn the plaintiff of the danger. 

219  As Mr Bishop said, if he was aware a gas strut was low on gas, in accordance with his safety protocol, it would be brought to the plaintiff’s attention.

220  Further, Rick Woodruff, WP’s manager, deposed that the plaintiff was instructed not to remove vice grips from a strut unless someone was holding the bonnet.  

221  It is also significant that the risk of serious injury was high – a falling bonnet may produce serious injury to someone working underneath it – a situation confirmed by Mr Bishop.

222  As the employer, the duty owed by WP to the plaintiff is well established.  It was defined by the High Court in Czatyrko v Edith Cowan University:[279]

“… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.  The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[280]

528  The plaintiff then complained of constant right shoulder girdle pain.  He mentioned injuring his neck and back after a 2007 transport accident and suffering injury to his left arm at work in 2003.

529  Mr Dooley noted the attached documentation suggested that after the 2007 accident, the plaintiff complained of significant ongoing cervical spine, shoulder girdle and low back pain.  As far as he could tell, the shoulder girdle pain was referred cervical spine pain.

530  He thought it was possible that residual symptoms from the injury sustained in the 2007 accident could have interfered with plaintiff’s capacity to carry out heavy physical work. 

531  On examination, there was some wasting of the right shoulder girdle musculature.  There was marked restriction of active range of motion of the right shoulder.  There were inconsistent signs in relation to passive range of motion of the shoulder. 

532  Following examination, he thought the constancy and intensity of the plaintiff’s  ongoing pain and described disability were greater than one would expect to see for his organic condition.  He believed the plaintiff’s psychological reaction to his situation significantly influenced his ongoing symptoms. 

533  Mr Dooley did not consider the marked restriction of active range of motion on the shoulder could be explained by adhesive capsulitis.  From an organic point of view, he would expect the plaintiff to have some restriction of active range of motion of the shoulder.

534  He thought the plaintiff sustained a soft tissue injury in the work incident to his right shoulder, the exact nature of which was not entirely clear.  It was probable that he suffered subcutaneous and muscle bruising.  It was also possible that aggravation of underlying degenerative rotator cuff disease occurred.

535  From an orthopaedic point of view, he would expect the plaintiff to note some intermittent right shoulder girdle pain.  He was fit for light physical work and clerical work.

Dr Adlard, psychiatrist

536  Dr Adlard examined the plaintiff in July 2018.

537  The plaintiff told him of his pre-incident history, the circumstances of the incident and his subsequent progress.  He said he got stressed by the whole thing, meaning the ongoing pain and the verbal abuse he suffered at work.  He did not do a lot, sleep varied with pain and he struggled to deal on a daily basis with the effects of his injury with daily pain in his shoulder.

538  Dr Adlard noted the plaintiff had never been referred to a psychiatrist or psychologist and had not had any anti-depressant medication. 

539  He diagnosed a Chronic Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to right shoulder injury.  These psychiatric symptoms started at some stage after the right shoulder injury. 

540  He thought the plaintiff’s psychiatric prognosis was heavily related to his right shoulder prognosis.  As long as he had chronic right shoulder pain and limitations, he was likely to have some ongoing, albeit relatively mild, psychiatric symptoms.  It may also be that his psychological distress was increasing his pain perception to some degree.

541  Dr Adlard thought the plaintiff’s psychiatric condition in itself was relatively mild and would not restrict him from pre-injury employment or other suitable employment with an alternative employer given his reaction towards his previous employer.

TAC claim documentation

542  The plaintiff obtained TAC certificates setting out he was unfit for work from 6 May 2013 to 6 February 2014 due to a disc prolapse at C6-7. 

543  The plaintiff organised for a handwritten letter to be sent to the TAC with his Claim Form in 2008. 

544  A fall out of a container at work in 2005 injuring his neck, shoulder and ankle was noted, and the TAC was advised “now these injuries conflict” with neck injuries suffered in a 2007 car accident:

“I seen more than 1 lawyer about it but they say that both cases were hard to prove ...  with the container injuries they confirmed their was a bulge in my neck.  I had physio on it and did another xray on it about 1 year later and showed that the bulge had cleared before the accident (car crash).”

[sic]

545  The TAC was also advised the plaintiff had x-rays from the crash which show his neck and elbow and knee: 

“I am still having problems with my neck and other parts.  I am waiting on papers to come for a[n] MRI scan for my neck and if it picks anything up it must be from the crash.”

546  The plaintiff swore an affidavit in support of his 2 November 2007 transport accident claim on 9 October 2013.

547  To the best of his recollection, he was off work for a few days after this accident and, on his return, was confined to light duties for some weeks.  He suffered from severe neck and spine pain to just below the shoulder blades and for quite some time, he was very vague and forgetful.

548  He struggled on his return to work, but his brother owned WP and was very understanding and accommodating of his condition.  He did not initially seek much in the way of treatment because he thought, with rest and taking it easy at work, symptoms would resolve.  However, this did not occur and the neck injury got worse over time. He also suffered pain into his shoulders, particularly the right, and it was difficult for him to know whether these symptoms related to the neck injury or were work-related injuries to his shoulder.

549  Dr Gibney referred him to Kate Hassell, his myotherapist, whom he had been seeing off and on since late 2008 both in relation to consequences of the transport accident, but also for work injuries.  The TAC was not prepared to pay for her treatment and he only saw her in relation to shoulder treatment which was covered by WorkCover.

550  He was then continuing to suffer a lot of pain in the neck and upper spine which appeared to be getting worse rather than better.  He contacted TAC to see if he could have any treatment but was told there was a claim on foot since the accident even though he was not aware of it.  He was told to see his doctor.

551  Accordingly, in October 2012, he saw Dr Gibney because of the pain from the car accident and also in relation to a separate injury to his right shoulder caused at work.

552  Dr Gibney referred the plaintiff to Mr Plank, whom he saw in April 2013, and at that time, the neck injury was his major problem.  Mr Plank recommended to Dr Gibney he be referred for review by a neurosurgeon and an appointment was arranged to see Mr Tange.

553  As a result of neck pain, the plaintiff then had a lot of problems sleeping and could not remember a night of unbroken sleep in recent years.  He often took Nurofen and had a hot shower before he went to bed.

554  The neck pain often led to headaches, and about once a fortnight they developed into migraines, which were quite severe.  Usually the only thing he could do was to try to sleep it off.  The neck pain often radiated into both shoulders.  As a result, he had trouble looking over his right shoulder when driving, and had to take breaks, and had difficulty with longer driving.  He often got a pain in his neck which felt like being stabbed with a hot poker.

555  He used to regard himself as being a very active father and played football with his children, kicking the ball around, particularly with his eldest son, who was about twelve at the time of the accident.

556  He used to enjoy riding his mountain bike, usually for short rides.  About two or three times a year, he and his eldest son went for longer rides in the bush.  As a result of his neck injury, he could not recall having ridden the bike since the transport accident.

557  He had a wood fire at home and owned a good chainsaw.  He used to go out and cut his own firewood but was no longer able to do so or to split the wood.

558  Until the time of the transport accident, he was an active handyman.  He and his partner bought a house in 2007 with a view to doing it up.  However, since the accident, he had done virtually nothing to it.  But for the neck injury, they would have done a lot of renovation work, particularly to the veranda, kitchen and bathroom.

559  Before 2007, he had bought an XF Falcon with a view to doing it up.  Although not really a keen mechanic, he was capable of doing most of the jobs required to get it back on the road, but as a result of the injuries, he could not work on the car at all and had done little or nothing.

560  In 2004, whilst employed by WP, he injured his shoulder, and, to a lesser extent, his neck, whilst at work.  He believed he was off work for two or three weeks and attended a physiotherapist for a year or two.  As a result of that injury, he was on modified duties for some time.  He continued to suffer some problems with his neck, but was largely symptom free at the time of the car accident.  He did not believe he required a specialist referral or was referred for scans or x‑rays.

561  The car accident had caused him to suffer pain and symptoms in his neck which were considerably greater than anything he had suffered beforehand.

562  In May 2012, the bonnet of a trailer collapsed on his right arm, causing injury to his right shoulder.  He went overseas on a pre-booked trip to Thailand, and on his return, consulted Ms Hassell, and later, Dr Gibney, who referred him for an ultrasound, which showed a tear in the shoulder tendon.

563  The plaintiff was put on light duties with restrictions to avoid above shoulder work, and because of that injury, had been certified as unfit for work since February 2013.

564  While he continued, as at October 2013, to have problems with his right shoulder, which presently prevented him from working, the headaches and pain in the neck, radiating into his shoulders and the thoracic spine, were constant and often severe, and impacted significantly on all aspects of his work and social life.

565  The TAC wrote to the plaintiff on 17 December 2013 in relation to physiotherapy treatment on his 2007 claim.

566  Liability for this treatment was denied on the basis that available medical information acknowledged that his neck symptoms predated the transport accident and that he had been reporting continuing symptoms and receiving medical and physical therapy for his neck since April 2003.

567  The TAC advised it considered there was no evidence to directly relate the plaintiff’s current neck injury to the transport accident and therefore it did not accept liability for any treatment in relation thereto. 

Findings

Pre-incident shoulder condition

568  Counsel for WP submitted the plaintiff had an extensive history of right shoulder problems requiring a great deal of treatment over many years prior to the incident.  He was an unreliable witness and evasive when questioned on this issue, denying any previous right shoulder injury in his incident Claim Form and also when interviewed by Mr Dohrmann.[526]  

[526]T674

569  Counsel for Duo Mobile’s submissions on this issue were very brief, relying on Mr Roberts’ 2004 and 2005 correspondence in which he set out his concerns about providing ongoing physiotherapy to the plaintiff if his shoulder girdle was just going to keep being aggravated by his work duties.[527]

[527]T637

570  Counsel for the plaintiff “did not shy away from” there being instances of right shoulder symptoms in 2003, the fall off the truck in 2005 and also the 2007 transport accident but he submitted “the genesis or cause [thereof] prior to the incident … is more appropriately described as being from the neck or cervical region”.[528]

[528]T755

571  On Zoom, I had the benefit of hearing from the plaintiff’s treating myotherapist, Ms Hawkes, who confirmed that while she treated his shoulder area at times pre incident, his principal complaint was then his cervical spine – with pain referred to his shoulder.  Her 2020 report was in similar terms, setting out there was no direct involvement of the shoulder in the treatment she provided pre-incident.

572  Further, Ms Hawkes identified specific new areas of treatment that commenced subsequent to the incident.[529]

[529]T765

573  In his 2004-2005 correspondence, Mr Roberts, physiotherapist, also confirmed some degree of cervical referral.[530]  In his 2010 report, noting he had treated the plaintiff from September 2004 to January 2009, he advised he thought the facet joints were most likely responsible for the plaintiff’s symptoms.

[530]T756-57

574  In 2006, Dr Kinloch thought the plaintiff’s pain was facetogenic in origin, not a discrete injury to right shoulder.[531]

[531]T758

575  Dr Gibney, who treated the plaintiff prior to the incident, did not waver, despite forceful cross-examination, from the proposition that prior to incident, the genesis of the plaintiff’s problem was the cervical neck region – he did not image the right shoulder.[532]  He may have included the shoulder on certificates he provided pre incident but he was treating a neck injury and prescribing medication for the plaintiff’s neck, not his shoulder.

[532]T756

576  There were no investigations of the right shoulder until the October 2012 ultrasound, five months after the incident.

577  Mr Doig, having been provided with Ms Hawkes’ notes, thought they did not indicate there was a significant problem with the right shoulder joint itself pre incident and that there was radiation down to the right scapular area from the cervical spine. 

578  Further, as far as medico-legal examiner, Mr Dooley, who saw the plaintiff on behalf of WP, could tell, it was thought the shoulder girdle pain the plaintiff was experiencing was referred cervical pain.

579  Given this medical opinion, it is not surprising the plaintiff had difficulty attributing his right shoulder pain to a specific shoulder injury or to referred pain from his neck.

580  As counsel for the plaintiff submitted, any pre-incident condition is fairly viewed as cervical/thoracic, with referred symptoms and pain into the right shoulder contrasted with a discrete injury to the right shoulder caused by the incident.[533]

[533]T759

581  Any spinal condition from which the plaintiff suffered was one that did not incapacitate him for work or require any treatment in the period leading up to the incident.

582  Dr Gibney confirmed his last pre-incident treatment of this cervico/thoracic condition was on 21 January 2010.  He next saw the plaintiff on 14 February 2011 for a hip complaint.[534]  In February 2012, the plaintiff was seen for tinnitus.  The next attendance was on 16 June 2012, following his return from the Thailand trip, with a cellulitis problem to the leg.[535]

[534]T760

[535]T760-61

583  Significantly, at the time of the incident, the plaintiff was working full time on unrestricted duties.[536]

[536]T772

584  Dr Gibney had last provided a certificate of capacity in January 2010.  He resumed certification in February 2013 for a new shoulder injury from the incident.

585  Further, there was a gap in myotherapy treatment from as long as 21 December 2010 or December 2011 up until 31 May 2012.[537]  I accept the plaintiff’s evidence that he attended on that May 2012 date, less than a week after the incident and before he went to Thailand on 5 June 2012.[538]

[537]T762

[538]T106

Diagnosis and causation

586  Counsel for WP also submitted causation of any shoulder injury was in issue, particularly in light of the change in diagnosis from a supraspinatus tear found on ultrasound in October 2012 to frozen shoulder and that, “in these circumstances, it was open to find that the incident is totally irrelevant to the more recent frozen shoulder condition.”[539]

[539]T705

587  While it is accepted a supraspinatus tear was the initial diagnosis, the consensus of medical opinion is that the plaintiff now suffers from a frozen shoulder and has done so for some time, with Mr Plank making this diagnosis as early as May 2014.[540]

[540]T755

588  This change in diagnosis has not caused any medical examiner to change their view that the plaintiff’s current right shoulder condition is related to the incident.  Mr Plank thought the incident seems to be the trigger event that triggered the plaintiff going down this pathway of developing a frozen shoulder.[541]

[541]T531

589  While Mr Plank thought the bonnet had fallen directly on the plaintiff’s shoulder, he explained it is not important that the shoulder itself suffers a blow in the incident or that there are significant symptoms right from the start.[542]

[542]T512

590  Mr Doig also diagnosed post-traumatic frozen shoulder, noting his initial diagnosis of a full thickness rotator cuff tear was not correct.  When he last reported in August this year, he had been provided with the relevant records from Ms Hawkes and his opinion and diagnosis was unchanged, despite reading this additional documentation.[543]

[543]T765

591  Dr Gibney thought there was a new tear in the incident, and the current condition of frozen shoulder was the end result of unchecked inflammation.

592  Mr Dooley did not address this issue in any detail in his report.  He simply noted the plaintiff sustained a soft tissue injury to his right shoulder, the exact nature of which is not entirely clear.  While he did not believe the plaintiff’s significant restricted shoulder movement could be explained by adhesive capsulitis/ frozen shoulder, he expected him to have some restriction of active range of motion of the shoulder.  He also thought it possible that some aggravation of the underlying degenerative rotator cuff disease occurred.     

593  Having been told of the plaintiff’s delay in seeking treatment and lodging a claim after the incident, Mr Roth, as at September 2013, thought the incident injury no longer materially contributed to any incapacity or need for treatment. However, he did not change his view that the plaintiff injured his shoulder in the incident, not the 2007 transport accident.

594  Taking into account all the evidence, I am satisfied that the incident was a cause of the plaintiff’s current frozen shoulder condition.

TAC claim/neck injury

595  Counsel for WP relied heavily on the plaintiff’s description of his neck-related problems in his October 2013 TAC affidavit.  It was submitted that affidavit  “speaks to ongoing, continuous, significant symptoms and significant dysfunctions in respect of the plaintiff’s activities of daily living” because of his shoulder or neck.[544]

[544]T696

596  It was submitted this affidavit and the plaintiff’s letter to the TAC further indicated he was not sure whether his shoulder pain could be attributed to any injury at work, either in 2005 or the incident, or to the 2007 transport accident.[545]  After his TAC action was discontinued in 2014, he then focussed on a different injury, his shoulder injury from the incident.[546]

[545]T682; DCB 307

[546]T637- certificates were also being provided for the plaintiff’s shoulder condition at that time

597  TAC certificates from 6 May 2013 to February 2014 relate to incapacity because of his neck condition.[547]

[547]T677

598  Further, the plaintiff was referred to MC Physio, Mr Ellis and Professor Kaye in September 2013, for his transport accident-related injuries.[548] Ms Steele, chiropractor, wrote to Dr Gibney on 26 July 2013, clearly having been told that it is a right shoulder injury related to the 2007 transport accident.[549] 

[548]T680

[549]T682

599  Dr Gibney included in the clinical indications for the 2013 cervical MRI scan:  “Motor vehicle accident 2007, persisting neck, interscapular and right shoulder pain.”[550]  He agreed he would not mention the neck in his 2019 report if it was a condition long past.[551]  He included an impaired spine in the current diagnosis and could not remember when the neck stopped becoming an issue for the plaintiff.[552]

[550]T697

[551]T698

[552]T699

600  Further, the plaintiff could not say when his neck ceased to become a problem.[553]

[553]T677

601  Counsel for the plaintiff submitted the TAC affidavit was not damaging to the plaintiff.  He identified the incident and commented upon it in a manner which was consistent with his evidence to the Court.[554]  He appropriately identified the neck/cervical symptoms arising from the transport accident, yet cannot remember exactly when they ceased to be a problem, save that they definitely did cease to become one.  Dr Gibney said the plaintiff’s neck ceased to be a problem some time in last five years.  It was submitted the plaintiff’s neck stopped becoming a problem pre shoulder surgery.[555]

[554]T763-64

[555]T764

602  While the plaintiff deposed to significant consequences from his neck condition, I accept that from late 2013, he was not troubled by any significant neck pain and that his right shoulder problems took over, as Dr Gibney confirmed.

603  The plaintiff stopped work in February 2013 because of his shoulder, as he deposed in his TAC affidavit, not because of any problems with his neck.  He had been able to work without restriction/need for modified duties, despite any neck problems, since January 2010, for over two years before the incident.

604  While Dr Gibney made a number of referrals in 2013 which included for the plaintiff’s neck, it does not seem the plaintiff had any treatment focussed on his neck after that time.  Dr Gibney confirmed the plaintiff’s neck had ceased to be a problem for him in last five years – predating the first shoulder surgery. He also agreed that after October 2013, the plaintiff’s whole focus had been on his shoulder.

Post-incident treatment

605  The plaintiff has undergone a range of procedures for his right shoulder post incident.

606  After an injection of Depo Medrol did not settle the plaintiff’s symptoms, Mr Plank proceeded to surgery – a right shoulder arthroscopy and capsular repair on 9 November 2015.  Despite that surgery, the plaintiff’s shoulder became more painful and stiffer and further surgery was undertaken on 20 September 2016 with an arthroscopy, hydrodilatation and manipulation.  While pain improved after that surgery, again significant synovitis was found and the shoulder continued to be stiff post surgery when last seen by Mr Plank in March 2017.

607  Although Dr Gibney had recorded one clinical examination in all the time he had seen the plaintiff in respect of the shoulder,[556] I accept he was able to observe the level of his shoulder movement over the time he treated him since the incident.  He confirmed these significant restrictions the plaintiff described and demonstrated in the witness box.[557]

[556]T698

[557]T773

608  Myotherapist, Ms Hines, also confirmed the plaintiff’s limited range of motion since surgery, which she described as a degree of spasticity.[558]  Mr Doig found a markedly restricted range of shoulder movement on re-examination last year. Mr Dooley also found some restriction of right shoulder movement.

[558]T766

609  I accept the plaintiff continues to suffer right shoulder pain in the area he described in the witness box - right in the joint, feeling like bone on bone.[559]  Dr Gibney confirmed the plaintiff’s complaint of constant right shoulder pain.  

[559]T82

610  While he thought the plaintiff’s complaints were out of proportion to what he would expect with someone with a frozen shoulder, Mr Dooley thought he would experience intermittent ongoing mild pain.

611  I accept that wasting Mr Dooley found on examination in December 2019 was consistent with, and supportive of, an ongoing condition of significance and a disuse by the plaintiff of that upper limb.[560]

[560]T767

612  The plaintiff takes Nurofen and an anti-inflammatory for his shoulder pain.  He continues to see myotherapist, Ms Hines, about fortnightly.  He last had physiotherapy for his shoulder a year ago.

Other consequences

613  As counsel for the plaintiff submitted, the right shoulder condition manifests itself in a man who has relied extensively and totally for his working life on the ability to carry out difficult manual work that requires strength and dexterity.[561]  His job was offered to him by his brothers when he was very young and he had worked long and hard for them for many years. 

[561]T773

614  Counsel pointed out, as Dr Gibney noted, the plaintiff was, to an extent, his own worst enemy, continuing to work with his brothers after the incident beyond the stage that he probably should have, “subject to a barrage of abuse and insult from them”.[562]

[562]T774

615  It was submitted the primary consequence is that the plaintiff is unable to work, provide for his family and engage with his wife and children as he once did.  He cannot fish or cycle, as his partner confirmed.  He reacts and responds to people differently.  He has ongoing shoulder pain that requires painkilling medication.  These issues relate to his incident injury, not any injury suffered in the 2007 transport accident.[563]

[563]T774

616  The consensus of medical opinion is that as a result of his shoulder condition, the plaintiff is totally incapacitated for pre-injury work or suitable duties.

617  I accept the inability to continue working as a windscreen fitter after February 2013 because of his shoulder injury is a major issue for the plaintiff, who had effectively done this one job for his whole life, being able to cope with his duties working for his brothers.  As the plaintiff said, with his background: “Without a right arm for me is like you might as well cut the thing off”.

618  The plaintiff has little education and is unable to read and write.  Had he not had that offer of work from his brothers, his employment prospects were otherwise very limited.  After twenty-five years in that one job, following his incident injury, he worked on for some months on light duties but had to cease work in February 2013 as his shoulder became too sore.  He has not returned to work since and is unlikely to ever do so.  

619  Although the plaintiff had problems sleeping due to neck pain in late 2013, I accept that it is now his right shoulder pain that wakes him at night and causes him difficulties sleeping.

620  The plaintiff’s present limitations in relation to a range of domestic and sporting activities relate to his ongoing shoulder condition,[564] not his neck pain, as was the case over seven years ago, which I accept has largely resolved, as Dr Gibney confirmed.

[564]T135; T285

621  There is no suggestion of any further treatment that will improve the plaintiff’s current level of right shoulder pain and resultant restrictions.

Psychiatric Injury

622  While the plaintiff is not being prescribed any medication for any mental health issues,[565] Dr Gibney suggested referral to a psychologist but the plaintiff declined this offer as he did not think he would be assisted by counselling. Medico-legal psychiatrist, Dr Schutz, agreed and was not confident the plaintiff would benefit from therapy as he did not appear psychologically minded.

[565]T697

623  While issues with WorkCover have contributed to the plaintiff’s psychological  condition as Dr Gibney confirmed, in my view, his psychological problems relate predominantly to the change in his lifestyle as a result of his shoulder pain and restrictions.   

624  Dr Gibney diagnosed an Adjustment Disorder.  The plaintiff is depressed and anxious, suffering from social avoidance and isolation, impacting on his  recreational activities.

625  Psychiatrist, Dr Schutz, thought there was a moderate Chronic Adjustment Disorder with Anxious and Depressed Mood, the predominant cause thereof being the plaintiff’s development of shoulder pain, which he found distressing.[566]  This disorder involved, inter alia, lowered mood, loss of motivation and isolation, loss of interest and enjoyment.   

[566]T771

626  Dr Adlard, in July 2018, made a similar diagnosis, concluding that the psychiatric symptoms were secondary to the right shoulder injury. He considered  the psychiatric prognosis is heavily related to the prognosis of the right shoulder condition.  Dr Gibney, Mr Plank and Mr Doig considered that that condition is likely to be longstanding, if not permanent.[567]

[567]T772

Quantum

627  Counsel for Duo Mobile submitted, without a history of shoulder pain pre incident, $150,000 may be an appropriate figure for pain and suffering damages but with this history, damages assessed at $100,000.[568]  Counsel for WP submitted $150,000 is a bit high and a more appropriate figure was in the range of $100,000.[569]  Counsel for the plaintiff suggested damages in the range of $225,000 to $250,000 was appropriate.[570]

[568]T637- D2, T704 - D1

[569]T708

[570]T775

628  Taking into account all the evidence in relation to both the plaintiff’s shoulder and psychological injuries, in my view, the appropriate award for damages for pain and suffering is $220,000. This sum must be reduced by 40 per cent for contributory negligence.

629  Accordingly, there will be judgment for the plaintiff against the defendants in the sum  of $132,000.

630  When I handed down judgment in this matter on 11 December 2020, counsel for the defendants for the first time indicated there were contribution proceedings on foot and sought an apportionment of liability between the two defendants I had found responsible for the plaintiff’s injury.

631  There were no contribution proceeding documents in any court book.  I was not addressed on this issue and no mention was made of it during the hearing.[571]

[571]A search of iManage revealed these applications had been made 

632  In determining the appropriate contribution of each of the respective defendants, the Court should have regard to the extent to which each has departed from the standard of care expected in the circumstances.[572]

[572]Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at paragraph [494], Toomey v Scolaro’s Concrete Constructions Pty Ltd (In liq) & Ors (No 2) [2001] at paragraph [454], Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112 at paragraph [86]

633  It was submitted on behalf of WP that 90 per cent of responsibility should be apportioned to Duo Mobile because:

(a)   On the day of the incident, WP had the ability to ascertain and determine the nature of the risk of injury to the plaintiff, as it had control over the premises and the system of work.  It knew of the danger of the defective strut, yet did nothing.  Not only did no-one from WP tell the plaintiff the strut was low on gas or was being propped up by vice grips, the plaintiff was directed to the vehicle and told it was right to work on and allowed to complete the job;

(b)   The only finding of negligence against WP is that it failed to give a general warning about the dangers of working on a vehicle where the bonnet was supported by a strut low on gas, with the addition of vice grips.  The causal potency of this is insignificant compared to Duo Mobile, as WP did not know that the vehicle had a defective gas strut, and simply sent the plaintiff out to all jobs with a co-worker who was available to assist him if needed.

634  Counsel for Duo Mobile submitted that WP should bear a greater percentage of responsibility of 75 per cent, despite the case against both WP and Duo Mobile being a failure to warn.  It was submitted:

(a)   WP had a unique knowledge of the plaintiff being an “unsophisticated man” (being brothers);

(b)   WP had years to warn/train the plaintiff, as they unsuccessfully deposed (through Woodruff) that they had done;

(c)   Unlike Jack Bishop, WP failed to give evidence of any efforts it had made in general training and/or in that crucial aspect relevant to these particular circumstances.

635  It was submitted that responsibility should fall more heavily on the employer, when looking at the degree of departure from a required standard of conduct.  It was submitted that for Duo Mobile, there was a momentary lapse in an otherwise safety conscious workplace, whereas WP’s conduct was reflective of a systemic failure to train/warn. 

636  In my assessment, while WP as the employer owed a non-delegable duty to the plaintiff to take reasonable care for his safety, the majority of the responsibility for the plaintiff’s injury rests with Duo Mobile.

637  Although, I found that WP should have given the plaintiff a warning of the dangers involved in the task performed at the premises on the said date and did not, while doing the installation at the premises, the plaintiff was working under the control and supervision of Duo Mobile.  Its owner, Jack Bishop, gave evidence of the appropriate safety protocols and of warning a person in the plaintiff’s position of the danger of working on the vehicle in that condition.

638  Not only was the plaintiff not warned about the risk of injury when performing that task by any Duo Mobile employee, he was directed to the specific vehicle to work on. Further, he was not told at any time during the three-quarters of an hour that the installation job took, to stop working on the vehicle.

639  Bearing all those matters in mind, 80 per cent of the responsibility for the plaintiff’s injury should be apportioned to Duo Mobile and 20 per cent to WP.