D'Arcy v Caltex Australia Limited
[2018] ACTSC 206
•3 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | D’Arcy v Caltex Australia Limited |
Citation: | [2018] ACTSC 206 |
Hearing Dates: | 10 April 2017 – 13 April 2017; 27 October 2017 |
DecisionDate: | 3 August 2018 |
Before: | Burns J |
Decision: | See [193]-[197] |
Catchwords: | TORTS – Personal injury – workplace accident re-lining underground petrol tanks – plaintiff claiming breach of duty of care – alleged breaches of various statutes – two defendants – liability of Fuel-Sys – whether there was contributory negligence on the part of the plaintiff – liability of Caltex – whether Caltex owed the plaintiff a duty of care – whether there was a relationship of agency - whether Caltex was an ‘occupier’ of the service station site – whether Caltex breached duty of care – assessment of damages – ‘Territory or State of Connection’ |
Legislation Cited: | City Area Leases Act 1936 (ACT) Civil Laws (Wrongs) Act 2002 (ACT) s 168 |
Cases Cited: | Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301 Caltex Refineries (Qld) Pty Ltd v Staver [2009] NSWCA 258; 75 NSWLR 649 |
Parties: | Phillip Raymond D’Arcy (Plaintiff) Caltex Australia Limited (ACN 004 201 307) (First Defendant) Fuel-Sys Installations Pty Ltd (In liquidation) (ACN 143 223 803) (Second Defendant) |
Representation: | Counsel Mr P Webb QC with Mr L Grey (Plaintiff) Mr J Gracie (First Defendant) Mr P Morris SC (Second Defendant) |
| Solicitors Sneddon Hall and Gallop Lawyers (Plaintiff) Colin Biggers & Paisley Lawyers (First Defendant) Curwoods Lawyers (Second Defendant) | |
File Number: | SC 263 of 2014 |
BURNS J
On 11 September 2012, the plaintiff along with a small team of workers were re-lining an underground petrol tank with fibreglass at a petrol station in Kaleen, ACT, when a fire broke out inside the tank. This fire resulted in the plaintiff sustaining serious injuries including partial to full thickness burns to 35 per cent of his body. The first defendant, Caltex Australia Petroleum Pty Ltd (Caltex), was alleged by the plaintiff to be a de facto occupier of the property upon which the petrol station and the tanks in question were situated. The second defendant, Fuel-Sys Installation Pty Ltd (Fuel-Sys) was the plaintiff’s employer. The plaintiff claims damages from both defendants claiming a breach of duty of care of the defendants, their servants or agents.
The plaintiff’s case against Fuel-Sys, his employer, was that it had breached its non-delegable duty of care to him as an employee by failing to provide a safe system of work. Fuel-Sys in its written submissions conceded that there was evidence that it had breached its non-delegable duty of care to the plaintiff, and stated that the issue for determination was whether the plaintiff had been guilty of contributory negligence.
The plaintiff’s case against Caltex was that it was an occupier of the property upon which the service station, and the petrol tank in question, were situated, that it had contractual responsibility for repair of the underground tanks, and had assumed responsibility for safety of the works and as such owed him a duty of care, which it had breached by failing to ensure that a safe system of work was employed in re-lining the petrol tank. In his Statement of Claim the plaintiff also alleged breaches of various statutes by Caltex, but in his final written submissions Senior Counsel for the plaintiff disclaimed reliance on any of the pleaded statutes except for the Work Health and Safety Act 2011 (ACT)(WHS Act), the Work Health and Safety Regulation 2011 (ACT), the Dangerous Substances Act 2004 (ACT) and the Dangerous Substances (General) Regulation 2004 (ACT). The plaintiff’s counsel also made it clear that the plaintiff did not rely on the provision of the WHS Act to establish independent causes of action, but rather relied upon the content of the statutory obligations as demonstrating reasonable steps that should have been taken by Caltex, and that the failure of Caltex to ensure compliance with those obligations demonstrated negligence on its part, citing Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301 at 308-309 and Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 at [70]-[71]. I will refer to these enactments as “the statutory provisions”.
Each of the defendants served a notice claiming contribution or indemnity on the other defendant.
The premises
The service station in question is located at 275 Maribyrnong Avenue, Kaleen, a suburb in northern Canberra. At the time of these events the land on which the service station stood was held by Evangelista Pty Ltd (Evangelista) under a lease dated 19 February 1991 made under the City Area Leases Act 1936 (ACT). Evangelista sub-leased the premises to Caltex under a sub-lease (the sub-lease) commencing on 1 January 2009 and expiring on 31 December 2013, for the permitted use of “a service station/convenience store, mechanical car service and repairs, restaurant and/or takeaway food facility”.
On or about 27 September 2011, Caltex entered into a STAR Franchise Agreement (the Franchise Agreement) with Olmos Investments Pty Ltd (Olmos), as trustee for the Olmos Family Trust. Under the Franchise Agreement, Olmos was to conduct the retail activities at the service station on a day-to-day basis.
The sublease gave occupancy of the premises to Caltex, subject to a reasonable right of re-entry for inspection. The following special conditions of the sublease are relevant:
2. (i) The Lessee acknowledges that at the Date of Commencement hereof the Lessor has all property and Title to the underground tanks, pipes, services and fittings installed in or beneath (but not upon) the driveway, hereafter referred to as ‘the Lessor’s Fixtures’.
(ii) The Lessee shall maintain, repair and be responsible for the proper operation of the Lessor’s Fixtures pursuant to clause 5.02 during its occupation of the Premises pursuant to the terms hereof.
3. The Lessee may subject to the Lessor’s consent which shall not be unreasonably withheld, permit the Lessee at the Lessee’s cost to upgrade and/or renovate, replace and/or repair any of the Lessor’s improvements on the site, and/or to fix, install or bring upon the site new equipment, trade fixtures or improvements of its own, PROVIDED ALWAYS:
(i) That the responsibility for repairs and maintenance of the existing and/or upgraded or renovated system of underground tanks, pipe works, services and electronic communications to the tanks and pumps and any other Lessee fixtures and fittings installed in or beneath the driveway shall at all times be repaired and maintained by and continue to be the sole responsibility of the Lessee; and
(ii) At the expiration of this Lease or any further Lease granted pursuant to the Option contained herein, or sooner determination of this Lease, all underground tanks, underground pipes, services and electronic communications to the tanks and pumps and any other Tenant fixtures and fittings installed in or beneath (but not upon) the driveway after the date hereof, shall revert to the Lessor for a consideration of one dollar, the receipt of which is hereby acknowledged.”
4. The Lessor and Lessee agree that if circumstances arise whether during, or, after the Lessee’s occupation of the site (provided always that there has been no intervening use of the premises as a Service Station after the Lessee vacates the site), requiring the carrying out of remediation work on the site resulting from leakage of petroleum products from any underground tank, pump, pipe or fitting, then the cost of that remediation work shall be borne equally by the Lessor and Lessee.
[emphasis added]
It is apparent from Special Condition 2(i) that Evangelista was the owner of the underground tanks on the land at Kaleen. The terms of the sublease, however, cast obligations on Caltex as the lessee with regard to the underground tasks, particularly in Special Condition 3.
The chapeau to Special Condition 3 is problematic. It purports to allow Caltex, subject to Evangelista’s consent, to permit itself at its cost to upgrade etc the “Lessor’s improvements” on the site. The plaintiff suggested that the word “Lessee”, where it first occurs in the Special Condition, is a typographical error, and should read “Lessor”. This is not an altogether satisfactory solution, as it would then appear to allow Evangelista, with its own consent, to permit Caltex to upgrade the lessors improvements on the site. The intention of the clause may have been to allow Caltex to undertake certain works on the site, but subject to Evangelista’s consent, and at Caltex’s expense. It is unnecessary to finally resolve the riddle, because the significant portion of the Special Condition, for present purposes, Condition 3(i), is clear in its meaning: repair and maintenance to the underground tanks was the sole responsibility of Caltex.
10. Caltex denied that it was the owner or occupier of the premises at the relevant time and that the tank was under its management or control. It also denied any breach of duty of care and/or any breach of statutory duties. As to the whole of the plaintiff’s claim, the first defendant said that if any injury, loss or damage was suffered by the plaintiff as alleged (which it does not admit), such injury, loss or damage was caused or contributed to by the plaintiff’s own negligence.
11. The terms of the franchise agreement between Caltex and Olmos are also important. I will not set them out in full, it being sufficient to observe:
(a) the agreement grants Olmos a non-exclusive franchise to provide specified retail services only (paragraph 2.2);
(b) the agreement does not confer on Olmos any exclusive rights regarding the business to be conducted at the site, and Caltex is entitled to grant other franchises, licenses and any other rights as it sees fit (paragraph 2.4);
(c) Caltex was entitled to exercise a high degree of control over the business to be conducted by Olmos on the site, including the products to be sold, the services to be provided and the manner in which they were to be provided (paragraphs 4.2-4.4; 17.2-17.3);
(d) Caltex maintained significant control over the way in which the service station could be used, and any obligation imposed by the franchise agreement prevailed over the occupancy right conferred on Olmos (paragraph 22.1- 22.2);
(e) Caltex was entitled to enter the servicer station at any time without prior notice in order to inspect the state of repair and condition of the service station and the operation of the business, and to ensure compliance by Olmos with the franchise agreement (paragraph 22.4);
(f) Caltex controlled signage on the premises (paragraph 23.1); and
(g) Olmos was required to use only specified Caltex equipment for the conduct of the business, which remained the property of Caltex and which Caltex could remove, substitute or replace at any time (paragraph 27.1-27.2).
Evidence of the plaintiff
The plaintiff’s background
12. The plaintiff was born in 1968 and was 44 years old at the date of the accident. He was 48 years old when the trial commenced.
13. He completed his year 10 school certificate at Port Kembla High School in 1984 and completed a carpentry and joinery pre-apprenticeship course at Wollongong TAFE in 1985. The plaintiff worked as an apprentice carpenter and joiner with Hughes Brothers after passing his TAFE course and then had a variety of jobs including working as a glazier and fitting handrails and gates. From 1986 through to 1990 the plaintiff completed a number of additional courses including an explosive power tool operations special course, a stained glass and lead lighting course, an electric welding course as well as obtaining a Craftsman’s Certificate in carpentry and joinery.
14. In 1994 he commenced work with Marksman Homes as a subcontract carpenter and joiner. Marksman Homes were a home builder in the Wollongong/South Coast area and had a number of contracts to do Federation style homes. The plaintiff said that he worked as a specialist on the detailed woodturning aspects of these homes, also building pergolas, stairs and decks. After working for Marksman Homes for about six or seven years, the plaintiff commenced working for Seawind Catamarans which involved working with fibreglass in addition to fine woodwork.
15. The plaintiff testified that prior to the accident he would participate in various sporting activities including camping, abseiling, caving, riding motorbikes and sailing. He would go camping with the family and motorbike riding with friends. The plaintiff also participated in a ‘freestyle-type martial art’.
Work for Fuel-Sys
16. In late 2011, the plaintiff was approached by Trevor Marshall to gather together a team for an operation being restarted working to re-line old steel and fuel tanks that lay underground at service stations. The plaintiff gave evidence that it was Mr Marshall who put the plaintiff in touch with Peter Hale of ‘Fuelsys’, who in turn asked the plaintiff to put together a group of workers.
17. The plaintiff testified that before commencing work in the underground petrol tanks, the team of workers participated in training for working in confined spaces. Evidence was given that this training was usually a two day course, whereas on this occasion the training was shortened to one day. The plaintiff gave evidence that not everything in the course was completed in that day and there was no discussion of completing the remainder of the course in the future. He also testified that he was not trained in the use of fire extinguishers as “it was supposed to happen as part of the course but [the man conducting the course] left it until last and it got cut off because it was one of - part of the second day’s training that [they] didn’t get”. He was not given any subsequent training regarding fire extinguishers. When questioned about whether he received any documents from this training, he said that he had not.
18. After completing the training, the team started work re-lining an underground fuel tank in Marrickville, Sydney on 20 January 2012. On the first day there were four workers brought up from South Australia who trained the plaintiff and the other team members in how to fibreglass underground tanks. The plaintiff testified that the new team members took turns in the underground tanks with the workers from South Australia “...and they instructed us on how to go about layering up the tank more”. The other members of the team were Brad Endecott, Christian French and Nathan Phillips. The plaintiff gave evidence that Mr Marshall had also made an appearance during that day.
Usual approach to jobs
19. When questioned about the number of people needed for a team, the plaintiff testified that four workers were needed; two workers inside the underground tank applying the fibreglass; and two outside, with one to provide the fibreglass and one to watch the entrance at the manhole. To make up these numbers, an additional team member, David Jones, started not long after the first job in Marrickville.
20. The plaintiff testified that when on site he would spend half the day inside the tank, spending two hours in the tank at a time, before swapping with the two members outside the tank. The plaintiff gave evidence that he would work 12 hour days and all team members undertaking the fibreglass work would be paid $50.00 an hour. In cross-examination by the first defendant the plaintiff was shown a reimbursement schedule beginning the week of 17 January 2012 through to 11 September 2012 which revealed that the plaintiff worked 76 days within the eight month period. When asked why he had chosen to work that amount, the plaintiff responded:
Well, we were being promised as a crew that we - because Fuelsys was advertising in certain petroleum industry magazines that they’d spent a lot of money on this advertising, and so on, that the work was going to increase rather rapidly, and we were told that we’d be working full-time, probably seven days a week, and wouldn’t have time to be doing anything else.
...
But you had learned over the previous six months that the work was not increasing, correct?---We’d had a - when we first started working for them, doing the jobs, they already had a backlog of a few jobs to do, so it was natural that we were going to work through those jobs over the progressing months, and that it was going to slow down, but then it was going to pick up radically once the advertising had its effect.
...
You didn’t think it was a little unrealistic of you, looking at that work, to think that if for a whole month, the employer couldn’t provide employment that the hope of extended work for extended periods might be a little bit false?---No. Every - I approached them for, like, we would ask Nathan over the phone, “When’s the next job coming? When is the work going to increase?” and he kept giving the same answer.
And what was that answer?---That we were going to suddenly become inundated with work.
21. On 3 September 2012, the team started a job in Kaleen in Canberra. The plaintiff gave evidence that while there was no particular hierarchy, during the lead up to the Canberra job Nathan Phillips filled the role of a site superintendent, also referred to as a “site boss”, and that Mr Phillips would always be on the jobs. While in cross-examination by the first defendant, the plaintiff said that he did not believe there was any particular pecking order within the team, saying that Mr Phillips “...as basically our supervisor was the fellow who basically went out to get and fetch us materials and the tools that we needed”.
22. The plaintiff gave evidence that when he arrived at a job, the compressor was the only piece of equipment that the team did not take with them to site because it was too big and needed its own trailer. He said that Mr Phillips was in charge of securing the compressor and that it was usually supplied by a company called “Premier Supply”. When questioned about the size of the compressor, the plaintiff said that there was normally a manifold with about four outlets on it which were used to power a blow-in fan, a suck-out fan and the team’s breathing apparatus. He said that the fourth outlet was not usually used, but that at least three outlets were required. He also testified that before the job in Canberra the team had never used a compressor with two outlets.
23. The plaintiff testified that in the course of the operation, the inlet air normally came in from the opposite end of the tank from the manhole, and the “take-out fan” was normally located in the manhole itself. He agreed that the intention of this was that the incoming air would push the fumes through the tank and out of the manhole. For the job in Kaleen, the plaintiff testified that the “take-out fan” was normally working all the time, and while the workers were in the tank, the compressor was also used for the workers’ air supply. It was only after the team members had exited the tank and disconnected their breathing apparatus that the compressor was used for the “blow-in fan”.
24. The manhole was cut in the top of the tank prior to work starting and in cross-examination, the plaintiff explained that the tank was cleaned using a “sucker truck” which was described as “a truck mounted giant vacuum cleaner”. The plaintiff said that the “blow-in fan” was usually connected or fitted on top of the tank, or on top of a removable cap that screwed out the top. When the “blow-in fan” had a greater diameter that the cap, the plaintiff said that it would be secured using duct tape, asserting that this was sufficient because it was only a low pressure fan. When asked if this “blow-in fan” was left taped to the tank for the duration of a job, the plaintiff agreed that it should remain connected to the top of the tank.
25. Regarding the process of applying the fibreglass, after the tank had been cleaned, the plaintiff said that the first step after mending any obvious holes in the tank was to put a coating of fibreglass resin onto the tank to seal the steel. This resin was placed over the whole of the inside of the tank. The plaintiff gave evidence that the resin was two chemicals mixed together by the team. The resin was applied to the inside of the tank using a ‘mohair type roller’ and would then be left to dry for a couple of hours before the laying of fibreglass was commenced.
26. The plaintiff testified that the first layer of fibreglass was usually “225 choppie” which was covered in a layer of resin before a second layer of “choppie” and a further layer of resin was applied. Once the second layer of “225 choppie” was saturated by more resin, a layer of a material called “3D” was applied. Two further layers of “225 choppie” and resin were then applied. The plaintiff gave evidence that “3D” was a three dimensional fabric that allowed fluid material to go within it.
27. The plaintiff was referred to a diagram of the tops of tanks, with one being a diagram of Tank 6 in Canberra. This diagram displayed the number of holes or “plugs” in the top of the tank.
The plaintiff indicated where on the diagram the manhole would be cut (the hole the furtherest left of the diagram), testifying that it was usually cut at the cleanest end. The plaintiff also gave evidence that these holes were kept open throughout the process of fibreglassing the inside of the tank, as to allow, among other things, electrical leads to be threaded down to power the lights inside. The plaintiff agreed that the holes were “glassed up only to the edges, without blocking them, apart from one which was the monitoring hole”. The plaintiff gave evidence that he was able to see the holes when he was inside the tank.
28. When questioned about the purpose of the monitoring hole, the plaintiff testified that the monitoring hole was glassed over to allow for testing of any leakage:
What was the purpose of glassing over the monitoring hole?---The monitoring hole was glassed over so that you could get access for the – to cut out part way through that layer to get access for the fluid to run through it.
Access to the 3D?---That’s right.
Right. So after it was all in place, all the layers were in place, you cut a very small hole through the – the first two layers, the uppermost layers of choppie? ---Yes.
Without going any further, so that that exposed the 3D?---That’s right. Just to the centre of that 3D layer, no further.
Right. Did you cut in to the 3D?---In to – in to the outside layer of the 3D, yes.
Right, okay. And that enabled the pouring of the blue dye material in through the monitoring hole and thereby in to the 3D, correct?---That’s right. Yes.
And when that was happening, this was a test to see if there was still any leakage out from the two outer layers of the fibreglass?---Yes, it was a test.
The lead up to the accident
29. The plaintiff gave evidence that a few days after commencing the job at the Kaleen site, the plaintiff went to the site early on a Sunday morning to find “a great deal of cured fibreglass on the floor of the tank that shouldn’t have been there”. The plaintiff was asked about where the “blow-in fan” had been attached:
And when you arrived on that Sunday morning, where did you find the inlet air ducting attached to? Was it attached to one of the open holes or not?---I can’t recall whether it was actually - - -
What had brought down the fibreglassing?---Well, it appeared that the fibreglass had been brought down by the operation of the inlet air.
And was there only one glassed over plug on the whole of the tank?---That’s right, yes. Only one.
So where was the inlet – the inlet pipe or ducting attached to?---It looked like it was attached to the same one.
The glassed over one?---The one that was glassed over.
He recalled that the inlet ducting had been operating overnight though he did not have any recollection of who it was that had positioned the inlet ducting and/or turned it on that Saturday evening.
30. In cross-examination by the second defendant, the plaintiff was asked who had glassed over the hole the weekend before the accident:
Now, what happened by the Saturday night was that somebody put matting over the inlet blower hole. That's right, isn't it?---That's what it looks like has happened, yes.
Somebody put resin and matting over the hole that was supposed to allow air to come into the tank. That's right?---That's what happened.
The mistake was made by somebody inside the tank, not somebody outside the tank. Isn't that right?---Well, equally - I mean, yes, somebody inside the tank.
Just dealing with the question I asked you. The mistake was made by somebody inside the tank, not somebody outside the tank, because the mistake was to put matting over a hole where air came in, and was supposed to come in?---Yes.
You were the one who did it, weren't you?---I can't tell you that.
You know that you were the one who did it, because everybody complained on the Sunday morning when they turned up for work and blamed you, and you didn't say, "It wasn't me"?---Because it didn't happen. Nobody blamed me for it.
Everybody blamed you for it?---No.
31. The plaintiff gave evidence that after spending around five to six hours cleaning up the fallen fibreglass on the Sunday morning, the team recommenced the fibreglass process for the affected area, including the glassing over on the nominated monitoring hole.
32. The plaintiff asserted that he did not recall any discussions about what hole would be used as the monitoring hole on this particular site and that there was no normal process of consulting with one another. The plaintiff testified that the usual course would be that the hole used for the “blow-in fan” was normally as far away from the manhole as possible. On the same diagram as referred to at [27], the plaintiff then indicated in which hole he had anticipated the “blow-in fan” would be placed (the hole most right of the diagram) and which would be used as the monitoring hole (the circle fifth from the left of the diagram with an arrow pointing upwards).
33. The fibreglassing process continued on Monday and into Tuesday and the plaintiff asserted that during this time the “compressor was driving the yellow vent that sucked out the fumes” and that it was in operation all the time. The plaintiff said that the compressor was also driving the breathing air supply for the team members working inside the tank. When asked how the breathing air supply was attached to the team members inside the tank, the plaintiff gave evidence that it was attached on their belts and went up their back and into their hoods.
The accident
34. The plaintiff recalled exiting the tank at about lunchtime on the Tuesday along with Mr Endecott. The other two members of the team had been working outside the tank, with one of them standing at the manhole keeping watch. The plaintiff gave evidence that the fourth member of the team would have been cutting up pieces of the fibreglass to an appropriate size. Upon exiting the tank, the plaintiff said that he had disconnected his breathing supply so that the “blow-in fan” could be connected. He recalled taking his hood off with the intention of calling out to whoever was there or to the team member holding the ladder asking them to check that the “blow-in fan” hose was not over the top of the monitoring hole that had already been glassed over before they turned it on. He said that he asked this because this is what had happened on the previous Saturday when the cured fibreglass fell to the floor of the tank.
35. In cross-examination the second defendant asked the plaintiff to confirm exactly why he had asked the “blow-in fan” to be checked:
MR MORRIS: ... You’ve agreed with me that the inlet blower hose goes over a portal and stays there, from the beginning of the job to the end?---It could have been moved.
You had no reason to believe as you were coming out of the hole that it had been moved, did you?---No, but I didn't know whether it had or not.
You've already agreed with me that what happened on the Saturday was not that somebody put the hose over the monitoring hole, but that somebody had put matting underneath the blower hole. You've already agreed with that, haven't you?---Yes, and I wanted it checked from the top so that you could see whether it had been glassed over.
I beg your pardon?---I wanted it checked before they turned it on to see that it hadn't been glassed over, which meant removing it, looking, and then - - -
Now you're starting to make things up, aren't you?---No.
Because there's a difference between a monitoring hole and the air blower hole, and you have said quite clearly in your answer that what you were concerned about was that somebody had put the blower over the monitoring hole. That's what you said in your evidence, isn't it?---If the blower was on top of the monitoring hole that had been glassed over from underneath.
But the blower doesn't get moved ordinarily. It stays ordinarily where it's first put on a blower portal and that's distinct from the monitoring hole which is a separate hole entirely which you put matting over, isn't it?---It should be a different hole.
36. The plaintiff was then asked who had placed the fibreglass over the hole immediately prior to the accident:
MR MORRIS: Somebody put matting, again, over the inlet blower hole, isn’t that right?---That’s right.
And it was you, wasn’t it?---No, it wasn’t me. I can’t tell you actually, because there was a crew of four of us working at different intervals. It could’ve really been any one of us.
...
Do you accept that you did glass over the blower entry portal?---Could have been. There was no way of marking it to tell whether it was or wasn't. It was standard that it was further down the other end of the tank, not up where I eventually reckon it was, over the top of the blower.
37. In cross-examination by the second defendant it was put to the plaintiff that as he was exiting the tank, he had a sudden realisation that he had mistakenly put matting over the blower hole, and there was a real possibility that when the air was turned on it would blow away all the work that had been done. It was put to him that upon exiting the tank, he had had a conversation with Mr Brad Endecott in the presence of Mr David Jones in which the plaintiff had told Mr Endecott that he had realised that he had glassed over the hole in which the “blow-in fan” was connected. The plaintiff said that he did not speak with Mr Endecott after exiting the tank.
38. The plaintiff could not recall who had answered saying that the fan was already on when he had asked for the monitoring hole to be checked. Upon receiving this answer, the plaintiff said that he tried to check the monitoring hole from the outside of the tank by using a torch and looking through from above. He recalled that when he tried to do this it was pitch dark and he could not see anything. Needing to go back into the tank to check on the monitoring hole, the plaintiff then put on his hood and the air had to be taken back off the blower inner valve to be put back on to his breathing apparatus. The plaintiff was unable to recall who swapped over the compressor and testified that he then went down into the tank by himself while someone else was holding the ladder.
39. The plaintiff recalled that when he re-entered the tank and the self-activated sensor lights came on he “saw a bunch of fibreglass still wet laying on the floor”. The plaintiff estimated that approximately two square metres of fibreglass had fallen on the floor tank near the monitoring hole. He testified that he then tried to get the fibreglass off the floor before it cured by “...raking up the wet fibreglass and trying to get it in to a ball so [he] could get it back up, pass it out of the opening”. He recalled passing up two lumps about the size of a rugby league football.
40. The plaintiff gave evidence that once he had passed the lumps of fibreglass out of the hole he went back to check the rest of the tank and tried to smooth the bit on the floor. It was at this point that the plaintiff noticed that some parts of fibreglass were still attached to the roof but hanging down from the area in which it had fallen. The plaintiff said that he tried to push these parts back up so that the extra weight of the pieces hanging down would not rip the remainder of the fibreglass down with it. At this stage the plaintiff noticed that one of those hanging pieces was leaning against the outside of one of the light globes.
41. In examination-in-chief the plaintiff gave his recollection of what happened next:
MR WEBB: What happened then?---I tried to remove the bit of fibreglass of the lens of the bulb. Very gently.
And?---And the glass of the – the actual bulb separated around the outside, taking a disc of glass off with it in my hand.
...
And when you say it came off, what came off? Could you describe that to his Honour?---The – the actual glass moulding separated around this joint or seam around the outside here, right at the top of that silver bit.
Just pulled off did it?---It just came off that easily it was – it was very gentle, tried to – the fibreglass was only stuck like that, uncured fibreglass shouldn’t stick to glass like this, it should just come straight off. The way that separated off there, it was just – it just separated all the way around that – I ended up with the bit of fibreglass that I was – had only just had on with my fingers, with this whole disc of glass actually stuck to it. It was surprising.
42. The plaintiff gave evidence that after the glass had separated from the bulb the elements in the globe started burning “like a candle” with the flame being about four inches. He recalled “...immediately [trying] to put it out with a bit of fibreglass with the disc of the lens of the globe that [he] had in [his] hand by trying to pat it out and push it in some sort of way trying to get it to go out ...” and that every time he took his hand away from it, it came alight again. When questioned about what happened next, the plaintiff recalled:
[MR WEBB] What happened next?---After successive times of trying to put it out and the thing coming back alight again, eventually the bit of glass, or the fibreglass that I had in this hand caught fire as well, and as soon as I saw the flame on that, I basically dropped it on the floor and it went onto the floor. As soon as I dropped that bit onto the floor, I just seen it start to burn up the side of the tank, the actual fibreglass started to ignite on the side of the tank, so I ran back to the - well, it's hard to run in slippery - I made my way back to the hole and got Dave to pass me down a fire extinguisher.
And then?---And I took the fire extinguisher back up to where the flame was burning on the side of the tank. It had grown, so it was about a metre or so, metre and a half long by about 300 millimetres wide. Just a big long strip was burning up the side of the tank with flames. I took to it with the fire extinguisher.
43. The plaintiff attempted to extinguish the flames using a fire extinguisher but was unsuccessful. He gave evidence that when it was clear that the fire extinguisher was not extinguishing the flames he made his way to the ladder as quickly as he could. The plaintiff recalled getting to about halfway up the ladder before he felt the flames catch up with him. He then remembered reaching the top of the ladder at which point he realised his hood and overalls had been burnt off his body. He recalled seeing the members of his team standing around in shock and not knowing what to do and him then asking them to hose him down. The plaintiff thought he was then hosed down by someone that worked in the workshop near to the service station.
44. In cross-examination by the second defendant the plaintiff was asked if someone had told him to get out of the tank when he called out for the fire extinguisher:
Mr MORRIS: Somebody above said to you immediately, "Get out of the tank." Isn't that right?---Somebody handed me a fire extinguisher.
Did someone say to you, "Get out of the tank"?---It's really hard to communicate in there. I couldn't have heard that.
HIS HONOUR: The question, I suppose, is really did you hear somebody say to you, "Get out of the tank"?---No, your Honour, I did not hear somebody say, "Get out of the tank."
The plaintiff was then asked if it had occurred to him to get out of the tank to which he said it did. He then said “[i]n hindsight, I should have got out of the tank”.
45. During re-examination the plaintiff was asked why he had stayed in the tank and tried to put the fire out. The plaintiff said that he had remembered that there were people above filling up their vehicles with fuel and that he “really wanted to get the fire to be extinguished because [he] was fearful of another large explosion … and [he] was worried that there would be people upstairs that would be injured and then hurt”.
Matters relating to the accident
46. When asked about the checking of equipment prior to starting work at the Kaleen site, the plaintiff agreed that there had been conversations between himself and Mr Phillips about the type of lighting used in the underground tank as well as the type of compressor used. The plaintiff recalled that when it was discovered that there were only one or two globes left that were previously used, the plaintiff requested that LED floodlights or acrylic encased fluorescent light tubes be purchased. Mr Phillips instead brought back wall mounted floodlights that had two globes and a sensor in the middle. In examination-in-chief the plaintiff was asked to confirm that a second globe tendered was the same type of globe used in previous jobs before commencing the Kaleen job. The plaintiff confirmed this was the case and compared that globe to the globes used at the Kaleen job in the following way:
All right. Now, is this the type of lamp which you had when you arrived in Canberra?---Yes, that's right.
…
That's a much heavier lamp than the one ‑ ‑ ‑?---It is a much heavier lamp.
The one which was being used at the time of the fire?---It's a lot thicker.
47. In cross-examination by the first defendant the plaintiff was asked to recall what was said when Mr Phillips came back to the Kaleen site with the new type of light. He recalled that he had complained about the inadequacy of the new light saying “that with the sensor attachment on it, it would need us to be moving within range of the sensor to … pick up movement for it to actually activate”. The plaintiff was unsure if he was the only worker who made a complaint about the light. In cross-examination by the first defendant he was asked why he had directed his inquiry about the light to Mr Phillips rather than someone else to which he replied “[i]t was [Mr Phillips] as basically our supervisor was the fellow who basically went out to get and fetch us materials and the tools that we needed”.
48. In regards to the compressor, the plaintiff testified that Mr Phillips had told him that he was only able to hire a compressor with two outlets. He said that the team had never used a compressor with only two outlets before and agreed that he had brought the problem of the compressor not having “enough outlets to run everything” to the attention of Mr Phillips by yelling out to him across the work site. In cross-examination by the first defendant, the plaintiff confirmed that his concern about the compressor was that it only had two outlets and therefore they were unable to have their air hoses running at the same time as the “blow-in fan” was in use which were ordinarily run at the same time when the workers were in the tank. He asserted that he directed his inquiry to Mr Phillips as it was his responsibility to acquire the compressor.
49. In regards to the clothing the plaintiff was wearing at the time of the accident, the plaintiff said that he was wearing disposable overalls over a short sleeved T-shirt and shorts. The plaintiff testified that when he was working outside the tank, he would wear a long sleeve “Hi-vis top with reflective stripes and long trousers”. In cross-examination the plaintiff was questioned about who had told him what to wear, and he said that Mr Phillips said that when working outside of the tank they were to be fully clothed. The plaintiff denied being told by Mr Hale that he should be wearing clothing that covered the whole of his arms and legs at all times when in the tank.
50. The plaintiff testified that when working in the tank, a variety of clothing was worn by the team under the disposable suit. The plaintiff wore shorts and T-shirt, while another team member wore only his underwear. When asked if Mr Phillips was able to see the team members in their various clothing as they went into the tank, the plaintiff replied “[y]es, he could see us getting changed … [o]n the deck outside the tank”. The plaintiff then confirmed that Mr Phillips never told him that he should wear long clothing when working in the tank.
After the accident
51. The plaintiff recalled the fire brigade and ambulance attending the scene of the accident and his t-shirt and shorts being cut off. He then remembered being put on a stretcher bed, being covered up with a light silver material blanket, placed in the back of an ambulance and being given a green whistle to breathe through. The plaintiff said that at this point he did not feel any pain and did not notice any difficulty with his breathing. He was then intubated and flown by helicopter to the Burns Unit at the Concord Hospital in Sydney.
52. The plaintiff testified that his next memory was waking up one week later in the Intensive Care Unit of the Burns Ward at the hospital with burns all over his face, body and his lungs. He asserted that he was in a great deal of pain and had tubes going down into his lungs which made it very difficult to breathe. The plaintiff received a long series of treatment by Professor Maitz including skin grafts on his hands, arms and legs which required the process of debridement both within the hospital and at home after his release. He also recalled that whilst he was in hospital, having the tubes in his lungs moved around so as to tickle his lungs, causing him to cough up ash and burnt skin. The plaintiff said that he was in hospital for “… a month and a half … [m]aybe longer”.
53. The plaintiff gave evidence that his wife helped with the process of debridement at his home up to three hours per day. This process was described as involving the stretching out of limbs and the removal of dead skin. The plaintiff said that this process was “extremely painful”.
54. When questioned about any flashbacks from the accident, the plaintiff testified that he often thought about the accident when he was in hospital saying that “[p]robably about 60 per cent of the time I was in there I was thinking about it”. The plaintiff did not agree that these dreams had lessened over time, but agreed they had changed over time, saying that he is now “having dreams of being not very helpful to anybody…I’m having dreams of people might be in distress that I’d like to help, that I can’t”. The plaintiff testified that he no longer sleeps well due to pain.
55. The plaintiff was asked about work trials he had undergone after the accident, the first being at Bunnings where he was asked to pack the shelves, go to the loading dock and remove the packaging from what was dropped off by the trucks and to assist with customers. He recalled being unable to perform some of the work as he had trouble moving the pallet trucks, having trouble “being able to hold onto heavier items”. When asked to explain, he said “[j]ust the grip strength in my hands isn't sufficient enough to hold onto some handles and I also get abrasions where the graft material joins onto the palm material; I lose skin.” The plaintiff testified that this is also an issue for him for any activity requiring the gripping of a handlebar or similar.
56. The second work trial was with a company called Brindles during which the plaintiff was a passenger in a truck travelling from a coal mine to the coal loader. He was given the opportunity to drive the truck after observing for two weeks and recalled having difficulty releasing the hand brake. The plaintiff was not offered employment at either company.
57. When questioned about what domestic work he completed post accident, the plaintiff gave evidence that he can fold laundry and intermittently vacuum one room at a time before becoming hot, sweaty and fatigued and needing a rest. The plaintiff also acknowledged that he did not spend a lot of time helping around the house prior to the accident. In cross-examination by the first defendant, said that prior to the accident he was not living at home with his wife. The plaintiff said that prior to the accident his wife was doing most of the jobs that needed to be done around the house other than “... lawn mowing and things”. When asked specifically about mowing the lawn, the plaintiff gave evidence that he recently attempted to mow the lawn but only lasted about “four or five minutes” due to the grip and irritations caused by the vibration.
58. In July 2014, the plaintiff met with an occupational therapist by the name of Sue Beaver at his home in Dapto. The report written by Ms Beaver, indicated that for about the first six or eight weeks after being discharged from hospital the plaintiff was completely unable to use his hands, and that he was unable to undertake domestic tasks for several months. The plaintiff was also unable to drive for a period of around eight months. The report stated that at July 2014 the plaintiff was no longer in receipt of assistance for any domestic activities with the possible exception of lawn mowing which his wife assisted with on occasion or in which he undertook in a modified manner. In cross-examination the plaintiff was questioned about the difficulty he experienced in completing domestic work, including mowing and vacuuming. The plaintiff agreed that his injuries did not physically prevent him from completing domestic tasks, noting he was only able to complete them by breaking up the tasks over a number of days and or by completing them in a modified way saying, “[i]n a limited capacity I can do household jobs”. In line with this, the following was asked by counsel for the first defendant:
MR GRACIE: I asked you to identify anything that you cannot do. You seem to have identified that you could do all of them, but in a limited capacity. Is that - am I misunderstanding?---No, that's right.
So getting back to my question, are there any household domestic tasks which you cannot do?---In some form, no, I can do nearly all of them.
59. When asked about his efforts in finding a job, the plaintiff testified that he searched for jobs on the internet and in the local papers, and that none of the applications he submitted resulted in an interview except with the Wollongong Council. He recalled that he was put in contact with the Wollongong Council through the rehabilitation company in Wollongong who tried to match his skills and physical abilities to appropriate work. As part of this process the plaintiff worked as a casual attendance maintenance officer which involved general maintenance around the buildings of the community centre and the library in addition to some outdoor work. The plaintiff asserted that he struggled with the heat when weeding and working outside during the summer months and that this overheating led to fatigue. When asked what he meant by this the plaintiff responded:
MR WEBB: What do you mean by overheating?---Getting really hot and sweating from - basically from my head and my chest, because I'm not sweating from my arms and my legs like I used to, so I don't cool down as efficiently as I should. The sweating gets in your eyes and stings and causes, you know, irritation to your face.
So you don't sweat on any of the burnt area of your body?---No. My body tried to compensate by sweating harder in the areas that it can still sweat like my chest and my head.
Were you having any trouble breathing, getting your breath when you were doing this work?---When I get fatigued, yes.
When you talk about breathing trouble, can you just explain what you mean? ---Just getting shortness of breath; it feels like my lungs are already full and I'm trying to draw more breath.
60. The plaintiff gave evidence that when one of the supervisors realised he was struggling with the heat he was taken off that work and that the work eventually ceased. He said “...they stopped calling me in to do that work, ‘cause (sic) it was an on-call position”. He went on to say that he then tried to find other work in the council, within what he thought he could manage, noting that he “probably over-estimated” what he was capable of doing when applying for the maintenance officer position. The plaintiff was then successful in being placed on the casual library courier list that was drawn from when staff were needed. He testified that he was able to perform most of the tasks in this role but had difficulty on occasions with getting in and out of the van and lifting some of the crates and pushing the trolleys. He asserted that at times he had problems with his abrasions on hands, and with grip strength and vibration.
61. In cross-examination by the first defendant the plaintiff was taken to a document outlining the work undertaken by the plaintiff for the Wollongong Council. This indicated that he worked from January 2015 through to September 2015 for various periods and on various days, including four days a week in the second, third and fourth weeks of January. Records from his General Practitioner (GP) indicated that the plaintiff visited him once in that month on 27 January 2015. The plaintiff asserted that during this period he did not need to attend his GP regularly for medication or treatment, and that he was able to resolve any discomfort by using creams and modifying the way in which he did the work, including the wearing of gloves.
62. In cross-examination, the plaintiff testified that he gets very frustrated about not being able to find work, and finds himself wanting to apply for jobs that he knows that he cannot physically do. When questioned about how he felt about a report that found that whilst possible, it was very difficult to find the proposed kind of work suitable for the plaintiff, he said that it was depressing because he was not as useful as he used to be and he “enjoyed being useful”.
63. Counsel for the second defendant questioned the plaintiff about the amount of compensation he currently receives and how this payment is affected by any income he received from employment:
[MR MORRIS:] And on top of that income, you're allowed to earn a certain amount of money before the workers compensation reduces. Is that right?---Not that I'm aware of.
Well, you're [sic] earned money from the library?---Yeah.
That hasn't caused any reduction in your income of workers compensation?---I thought it did.
You think it did?---Mm.
In any event, your perception is that if you do work, it has an effect on this $822.08 that you'd otherwise get?---That's right.
So that there's a bit of disincentive for you to do any work at all, because it's going to reduce the money that you've been otherwise been receiving?---Okay.
Do you accept that?---It looks like it, yeah.
It's come into your thinking before today, hasn't it? You have realised before today that if you actually go out and earn money, it's going to reduce the weekly compensation you're receiving. Isn't that right?---Yeah, that's right.
I want to suggest to you that but for this disincentive, but for this fact that going and earning any money at all is going to reduce the compensation, you'd have tried harder to get a job?---No.
64. In answer to further questions about his attempts to find employment, the plaintiff responded:
[MR MORRIS:] What did you try?---I tried looking for delivery drivers mainly, I - and do the taxi, if I didn’t see a taxi. I looked for, like, courier driver, truck driver, I did consider the taxi driving might’ve been a bit of a problem with the luggage and so forth, but I thought that maybe delivering small packages and stuff like that wouldn’t be a problem.
And you - if you’d been able to find one, a job like that, would’ve given it a go, is that right?---That’s right
...
MR MORRIS: ... That’s right isn’t it, that from - that you believe that had you been successful in getting that kind of job, that is, light courier delivery work, you could’ve done that from sometime in mid-2014?---Yeah, if I’m not handling anything too heavy, yeah.
Yes, but you’d have given it a go, and if something too heavy came along, you’d have either tried to avoid that, or given up the job?---Well, that’s right. I was applying for jobs, I got frustrated looking for jobs even, and started applying for jobs that I knew I wouldn’t be able to do, just to hopefully get you know, some sort of response.
65. In both examination-in-chief and in cross-examination, the plaintiff gave evidence about his current sporting activities, explaining that his plastic surgeon had encouraged him to try to get out and use his boat again. He recalled using the boat with his family once in the school holidays of 2016 in which he had hurt his little finger while trying to prevent them getting into “... big trouble in the boat”. The plaintiff asserted that he had not used their boat since this first attempt, nor had he been abseiling or caving since the accident. He gave evidence that he had used his trail bike and had been on a sailing trip in 2016 but he had not returned to martial arts due the contact nature of the sport.
66. When asked about his trail bike riding, the plaintiff testified that his hand grip strength was not very good and that he had got abrasions on his hands from trying to hang on the handlebars while riding over “rocky ground”. He said that he had tried to ride a trail bike “probably about twice” since the accident and about a dozen times on his road motorbike. The plaintiff testified that he has fewer difficulties with his hands on the road motorbike than the trail bike because there is not so much roughness, but has more leg pain due to the breaks and gear shift being operated by his feet on the road motorbike. When wearing protective clothing and motorbike gloves when riding, the plaintiff said that “... the breeze coming past you is enough to keep you cool”.
67. The plaintiff gave evidence that he has been on camping trips since the accident and had also participated in windsurfing with his son but testified that he found the surfing exhausting and had difficulty with his grip strength. With reference to the report by Ms Beaver, the plaintiff was questioned about why he had chosen to windsurf and swim rather than bushwalk and climb. The plaintiff stated that “[he] was doing whatever [he] could to stay cool, so [his] activities were restricted to the water”. He said that he was windsurfing at the time of the report, but that he did not do it for very long. In cross-examination by the first defendant, the plaintiff was asked to clarify when he stopped windsurfing and for how long he was able to windsurf over the course of one session before having to stop:
[MR GRACIE:] So do you actually have a recollection, a clear recollection of stopping windsurfing from the winter of 2014 or not?---I didn't do it very long.
I beg your pardon?---I had a short attempt at it. That was all.
When you say a short attempt, do you mean in practical terms taking up the windsurfing, being ashore waiting for the wind, standing on the board and gripping the boom and allowing the wind to take you out in the bay or harbour or sea? Is that what you mean?---Into the lake.
Into the lake, so that's what you mean and by attempting it, you mean that you would actually windsurf out into the centre of the lake at times?---Not at the centre of the lake, just along the edge. It only remains knee deep along there.
Yes, and you would obviously go out in a fashion with sufficient wind to keep yourself going and upright. Is that correct?---That's right.
...
Well, you say you can't go for very long. I'd rather you answer this question: how long can you go windsurfing for at any given time since this accident? Can you put a positive figure on it?---How long?
Time from start to finish out on the water?---Three-minute runs.
68. The plaintiff testified that he wears thick leather gloves, and either a wetsuit if it is cold, or sun-repellent clothing, in order to protect himself from either the cold, or wind, or sun while he is windsurfing.
69. During cross-examination two recordings of the plaintiff were played, one of him windsurfing with his son, one of him riding a dirt bike and another of him participating in is what was referred to as “underwater treasure hunting”. A USB was also tendered with other videos. These were recorded using a Go-Pro and uploaded to You Tube by the plaintiff. Throughout this cross-examination the plaintiff testified that he participated in the dirt bike riding, wind surfing and underwater treasure hunting for enjoyment.
70. In re-examination the plaintiff was asked why he had starting trail riding and windsurfing after the accident. The plaintiff gave evidence that after becoming aware of the difficulties his son was having, the psychologist he was seeing had told him that he should try to get things back to as normal as possible as they were before the accident. The plaintiff asserted that he had only decided to go trail riding and wind surfing with his son after this conversation with the psychologist and that prior to this, he had taken his son windsurfing but had been standing on the shore and recording a video of him rather than windsurfing with him. He said that he did not have a present intention of resuming use of the boat, the windsurfer or the trail bike and had made attempts at selling his trail bike.
71. The plaintiff attempted to lead evidence in reply, consisting of part of a recorded interview with a Work Safe inspector at Concord Hospital on 21 September 2012. The suggested purpose of the proposal tender was to counter a suggestion made in cross-examination by counsel for Fuel-Sys that he had “made up” an answer to a question put by counsel. The view that I have formed regarding the plaintiff’s credibility means that receipt of the proposed material can have no bearing on the outcome of the case, so that I decline to receive it.
Evidence of Ms D’Arcy
72. Sondi D’Arcy, the plaintiff’s wife, also gave evidence at the hearing on 12 and 13 April 2017. She testified that she first spoke to her husband after the accident, on 18 September 2013 after he had the intubator tube removed. She said that at first she was annoyed that he had chosen to stay in the tank to attempt to extinguish the fire, but after he told her that he chose to do so for fear of a large explosion impacted on a number of people she could no longer be “cranky”. In cross-examination Ms D’Arcy was asked if the plaintiff had told her that the service station was closed down at the time of the accident:
And one of those was his perception that he was safeguarding people from danger, do you remember that?---Yes, that’s right.
Now, did he tell you that the service station was closed down at the time of the event?---No, he did not.
So, when he talked about the people that he thought he was safeguarding, did he only mentioned his fellow workers?---No, he did not.
Well, who did he mention then? Did he mention ordinary - - - ?---People putting petrol in their fuel tanks.
73. Ms D’Arcy described of the processes she undertook before bringing the plaintiff home, including being trained at the hospital on the process of debridement and arranging a cleaning company to come and clean their entire home so it was “almost as clean as a hospital”. She also purchased a special chair and special mattress for the plaintiff.
74. In relation to the plaintiff’s treatment at Concord Hospital, Ms D’Arcy gave evidence of observing a procedure on her husband in which he would have a “cable of some sort” threaded down his throat in a tube which would be agitated and cause the plaintiff to cough up ash and mucus. This procedure was undertaken periodically throughout the plaintiff’s time in the Intensive Care Unit. Ms D’Arcy was also asked about the plaintiff’s mental condition whilst in hospital:
All right. Well, let's talk mental then. How was he when he was in hospital? Did you observe him to have any trouble sleeping?---In hospital?
In hospital?---Definitely.
What else was happening to him?---He was in pain even though he was on morphine and Endones and everything. He was in a great deal of pain. He did cry quite a fair bit.
Did he cry at times other than the times he was having this painful therapy?‑‑‑Yes, he did. He was scared that he would never be able to put his feet on the sand again. He actually said to me, he said, "I'd just love to feel the sand between my toes again," and I assured him that that was going to happen. He was very scared. He was very childlike at that time. And he was a bit confused, I think, as to time and how long he'd been there. Because he'd been in a coma, time was a bit lost for him, so he didn't actually realise how long he'd been there or anything like that
75. Ms D’Arcy testified that she had to do everything for the plaintiff upon his release from hospital and gave a detailed account of an ordinary day for her and the plaintiff. This involved toileting, dressing, hand feeding the plaintiff, in addition to taking him to any appointments and completing daily debridement. According to Ms D’Arcy, the plaintiff also attended Concord Hospital for the hospital to keep an eye on how Ms D’Arcy was going with the treatment of the Plaintiff. This appointment occurred once a week upon release from hospital and then became fortnightly and then monthly after around six months. The travel time from the plaintiff’s home to Concord was approximately one and a half hours each way.
76. Ms D’Arcy asserted that the plaintiff attended daily hand therapy appointments in Wollongong of approximately an hour to an hour and a half which she described as “excruciating painful” for the plaintiff and resulted in him sweating profusely from the unburnt areas of this body. She testified that the plaintiff was unable to use his hands for a period of at least three weeks. Ms D’Arcy gave evidence that the plaintiff’s condition gradually improved with the hand therapy and home exercises saying that the plaintiff continually practiced his hand exercises and would also stretch out his arms to gain more movement in areas with skin grafts. Ms D’Arcy said that the plaintiff attended hand therapy for at least 12 months. She testified that the plaintiff started to be able to use his hands about two months after leaving hospital and it was at this stage that he started to use the toilet by himself.
77. Ms D’Arcy gave evidence of the plaintiff crying during the process of debridement, giving details of how she would scrub his skin “until the eschar, the white, comes off and then it start to bleed…”. Ms D’Arcy said the process took around three hours to complete including the taking off of the dressing, the scrubbing and the redressing. She testified she continued the process of debridement for a period of at least six months:
[MR WEBB:] Right, okay. Did you continue the debridement?---The debridement lasted at least six months, and then it was just Sorbolene. When I say debridement, it eased off, we still had to use the cloth, but there wasn’t blood anymore, and the eshka was gone, but it was still - I think it’s about stimulating, keeping the blood circulation going, and there was a lot of Sorbolene. We still use Sorbolene.
So, the debridement period which used to take up several hours - - - ?---It got less.
- - - gradually lessened, did it?---Yes, it did. Yes, it did.
Right. And when did it - when did you stop doing the debridement altogether?---Altogether? It would’ve been after that six months mark, easily, and I didn’t - but I always had to use the Sorbolene.
After that?---Yes.
78. Ms D’Arcy gave details about the dressing of the plaintiff, including him wearing white cotton gloves with the fingertips cut off and having his arms and legs covered in dressing upon release from hospital. She testified that after approximately 12 months the plaintiff was given skins to wear, that she described as follows:
They’re, like, a mesh material and they hold quite tight, and they have to wear those for 12 months, they go over the burn, and they have to wear them all the time, asleep and everything. So they had them all for his arms and his hands, and he had a couple of - several pairs of those.
These skins were worn for around 12 months. Ms D’Arcy said that she helped the plaintiff into the skins because they were “really tight... like a pressure garment, almost”.
79. In cross-examination Ms D’Arcy was asked about the plaintiff’s pastimes and how he had modified his participation in these since the accident. Ms D’Arcy agreed he “does it early in the morning when it’s cool, or in the evening when it’s cool” and that in the middle of the day the plaintiff stays indoors.
80. Ms D’Arcy was asked about the cooling of their home in the summer months to which she responded:
We bought extra fans and he had to sleep with the fan on, because it was quite a hot time of year when he got home. It was warming up and we've got a fibro house with a tin roof and it's an older home and they're like hot boxes and in actual fact, to get him out of the sun at some point, the only way I could do that and out of the heat - sorry, not the sun - I'd take him to the shopping centre but it was a little bit precarious in the way that people with shopping trolleys don't look where they're going. It's a little like people in cars these days and they just - and it's around Christmas-time, so people are bolting around and I used to do the protection thing, so we'd just sit in a shopping centre to be in airconditioning.
81. She also testified that someone from the insurance company came to evaluate their house to look at what could be done to make the plaintiff more comfortable but the insurance company declined to install a wall mounted air conditioner because according to Ms D’Arcy “it would remain the property of the insurance company, and therefore they would be liable for anything that happened to it”. Instead the insurance company provided a portable air conditioner which was placed in the plaintiff’s bedroom. Ms D’Arcy said that she considered this to be inadequate to meet the plaintiff’s needs when he was in the house during the hottest parts of the day. Ms D’Arcy said that she and the plaintiff had considered purchasing an air conditioner themselves however the quote for installation was about $10,000 due to the set up of their home.
82. Ms D’Arcy gave evidence that their son is autistic, and struggled to deal with the accident. She said that he kept asking when the plaintiff was going to get better and when he was going to be able to participate in ‘father and son’ activities with him, saying “[w]hen is Dad going to be able to take me windsurfing? When is Dad going to be able to take me camping?” Ms D’Arcy said all she could say to her son was “[s]oon”. In regards to the suggestion by the plaintiff’s psychologist that the plaintiff try and return to activities with his son in order to help with his son’s health concerns, in examination-in-chief, Ms D’Arcy gave evidence that plaintiff “had a go” at trail bike riding and windsurfing with their son but the plaintiff had returned from these activities with injuries and “was very cranky”. In cross-examination Ms D’Arcy was questioned about the timing of some YouTube clips of their son windsurfing that were taken by the plaintiff, to which she agreed that they were filmed before the intervention of the school. Ms D’Arcy testified that she had encouraged the plaintiff to sell the boat and other equipment as they were no longer being used.
83. In relation to the plaintiff’s mental health after leaving the hospital, Ms D’Arcy gave evidence that certain things bothered the plaintiff. She gave the example that he had difficulty in watching cooking shows because of the sound of sizzling. He still has nightmares about being unable to escape dangerous situations. Ms D’Arcy said that her husband now gets grumpy and gets depressed but does not often admit it. She also testified that he no longer has any real contact with any of his friends. Ms D’Arcy gave the following evidence:
[MR WEBB:] Does he get depressed?---He does get depressed and I can tell he's depressed. He doesn't often admit that he's feeling depressed. The way I can tell is he becomes - he doesn't talk to anybody. He looks at his phone for hours and he doesn't do anything. He just sits. He's got no interest ‑ ‑ ‑
When he's looking at his phone, does he talk to anybody?---No, he's in a world of his own. He just withdraws. He withdraws. He doesn't want to go anywhere. He doesn't want to do anything. He doesn't even want to return phone calls or anything. He just doesn't want to do anything.
...
Are you able to jolly him out of these moods?---Well, my plan of attack is I take him to the psychologist or the psychiatrist and I take him and that's when ‑ ‑ ‑
84. Ms D’Arcy gave evidence that the psychologist suggested that the plaintiff find a hobby that he could do as he was not able to do any of the things he enjoyed before the accident. It was after this that the plaintiff purchased a second-hand metal detector and started his treasure hunts. Ms D’Arcy explained that the plaintiff started using this metal detector in the morning or late afternoon on beaches. From this he then purchased an underwater metal detector and “fashioned himself this breathing apparatus” with a hose and a facemask which lets him “go for about three or four metres”. She suggested that this keeps him cool and that he can do this without getting overheated.
85. In relation to employment, Ms D’Arcy testified that the plaintiff had been very diligent in looking for work and had applied internally within the Wollongong Council as well as truck driving positions. She suggested that the plaintiff “becomes quite defensive, in that he says he’s trying really hard, and he becomes a little bit despondent as well, that nothing’s come of any of the attempts”. Ms D’Arcy said that the plaintiff was unable to perform the domestic duties he had performed before the accident. In cross-examination Ms D’Arcy was questioned about the layout of their garden and the portions which required mowing. An elevated photograph of the plaintiff’s house was later tendered. Ms D’Arcy gave evidence that it took approximately two hours to mow both the front and back gardens. She mentioned that their son had been assisting with the mowing of the lawn and that the difference between their son and the plaintiff doing the same job was that the plaintiff spreads the task out over a longer period having said in examination in chief that “he'll do a bit part [sic] of it, come in, have a break, and then he'll do the rest”.
Evidence of Dr Massey
86. The plaintiff called Dr Daniel Massey, a State Inspector, dangerous goods and explosives with SafeWork New South Wales (being a new name for WorkCover). A report by Dr Massey with a release date of 6 March 2013 was also tendered at the hearing in which he was asked to provide technical assistance to WorkSafe ACT in relation to the accident at Kaleen. Dr Massey asserted that the focus of the report was on determining the cause of the fire and to identify any other relevant issues that the investigation may want to consider. He was not asked to look into the culpability of any of the individuals who were working on the tank that day.
87. In his written report, Dr Massey provided the following conclusions regarding the cause of the fire in the tank:
The injured person has given an account of his re-entry into the tank, whereupon he found that the air supply fan had caused the collapse of fibreglass matting that had been wrongly applied over a service port. The collapsed matting made contact with the electrical floodlights, leading to a fire.
This account is judged to be plausible and consistent with physical evidence collected by WorkSafe ACT and still present in the tank at the time of the site inspection. Other potential scenarios involve ignition of a flammable atmosphere by electrical floodlights, or ignition of a resin mixed in the wrong proportions, however these are considered less likely than the description given by Mr D’arcy.
Although the site inspection revealed areas of non-compliance with respect to the storage and transport of dangerous goods, these did not have causative involvement in the fire that occurred in the underground tank.
88. Dr Massey gave evidence that he visited the site of the accident between 18 and 20 September 2012, conducting a general inspection of the site as it was at the time a week after the incident and looking at the equipment that was still in the area. He also spoke to David Jones and Nathan Phillips who gave “a description of the work that they had been undertaking and their experience of what they had observed during the incident”, and was given an explanation by WorkSafe inspectors of the information they had gathered about the accident and their understanding of what had happened. At no stage had Dr Massey spoken with the plaintiff.
89. In relation to the section of his report regarding floodlight assembly, Dr Massey confirmed that he had inspected the two floodlights found at the site of the accident and agreed he described them as “having the general appearance of a standard consumer floodlight”, the kind of which “householders would buy at Bunnings”. When asked if these floodlights differed from those made to be flameproof, Dr Massey said that he “would not expect a standard consumer floodlight of the type you could buy at Bunnings to be flameproof” and that an exposed filament in these type of lights would be capable of igniting a flammable gas in the right conditions.
90. Dr Massey was then questioned about the personal protective equipment used on the site, including the white Tyvec protective suit being worn by the plaintiff at the time of the accident:
[MR GRAY:] You refer to examining a body harness which was - had the name “Phil” written on it and it was entangled with a torn remains you say, of a white Tyvec protective suit. Can you tell us anything about Tyvec, what kind of material is that?---It’s a synthetic material, it’s a very light material, and it’s usually used as a disposable type of PPE, a disposable overall or suit, usually put over your standard work clothes.
Right?---And the point of Tyvec is that it can be disposed at the end of the job, protect you from certain chemical exposures, and you don’t have to package it, clean it, and possibly becoming further exposed to whatever had adhered to the suit, you can just dispose of it and start fresh the next day.
To your knowledge, does Tyvec have any flame resistant properties?---Not to my knowledge.
There are fabrics which are made to be flame resistant, I take it?---Yes.
And it’s possible to buy suits that are made of that fabric?---Yes.
91. Under the heading of ‘Issues of concern for the WorkSafe ACT investigation’ and the subheading of ‘Lighting’, Dr Massey noted in his report the ignition risk to flammable atmospheres and potential ignition of flammable substances by a hot surface on non-explosion protected lighting. In evidence-in-chief Dr Massey said that “... if the resins impregnated in a fibreglass mat had not cured and became solid and they were to come into contact with a very hot surface, it is possible that ignition could occur initiated by that hot surface ...”.
92. Dr Massey then confirmed his assessment of the following items as being flammable as outlined in his report:
(a)the clothing worn by the plaintiff;
(b)the plastic housing and insulation of the floodlights and the adhesive tape used to mount them; and
(c)the uncured fibreglass resin, either in an open tray or as applied to fibreglass on the tank wall.
93. Within his report, Dr Massey concluded that there were only two plausible ignition sources, being either an exothermic reaction (heat emitting reaction) in the mixed fibreglass resin, or the floodlights as a hot surface, a radiative heat source or source of an electrical spark. In examination-in-chief, Dr Massey was questioned about the most likely cause of the accident:
[MR GRAY:] As far as the mixed fibreglass resin is concerned, was it your view that it could represent an ignition source if it's mixed in the incorrect proportions but for various reasons, you thought it was possible that risk was controlled. Have I read that correctly?---Yes.
But as far as the electrical spark from the floodlights, it could have ignited a flammable vapour air mixture because the floodlights were not rated for use in hazardous areas,” [sic] you say on the top of page 15?---Yes.
Now, you say it’s unlikely that a flammable atmosphere existed because continuous mechanical ventilation was in place; the evidence is that there was an exhaust fan, and I think you observed that, the yellow duct, roughly 300 mils?---Yes.
And were you aware that the process was that the silver duct, which was designed to provide input air, was not connected when workers were in the tank, because the compressor, which only had two outlets, needed the second outlet to provide airlines for the workers?---Yes.
...
Does that affect the suggestion that continuous mechanical ventilation was in place? Is it - is that sufficient, if there is an exhaust fan and no input fan, was that likely to make any difference to how the ventilation would occur within the tank?---Yes. If there was an exhaust fan only, I would not consider the ventilation to be as effective as if there was also a supply fan working simultaneously.
Does that mean there might be an uneven build-up of flammable gas in different parts of the tank?---Yes, because there is no cross-ventilation through the tank, and the ability of the extraction fan to ventilate at distances remote from the ventilation - from the extraction fan is not as great.
...
And you say, “It could be the insulative effect of the matting over the hot floodlights, or a hot surface on the bulb, before or after it was broken, or a combination of these possibilities. There was a flammable fuel, oxygen and an ignition source present”?---Yes.
That’s what you think is the most likely cause?---Yes.
94. After being taken through the plaintiff’s account given to the Court of what he saw when he re-entered the tank, in cross-examination by the first defendant, Dr Massey was taken to page 15 of his report which stated that “[t]he core hazard identified by this case is the use of hot floodlights inside a tank in close proximity to materials soaked in flammable liquid”. He was then asked if, upon hearing the evidence of the plaintiff, he could exclude an exothermic reaction in mixed fibreglass resin as being the cause of the fire. After answering in the affirmative, Dr Massey agreed that he was now more firm in the distilling of his opinion that the floodlights were the source of danger, and in particular, the process of ignition was by the live or hot parts of the inside of the floodlight being touched by the hot resin.
95. In cross-examination by the second defendant, Dr Massey was taken to page 16 of his report which identified as a causative element “the introduction of an air supply fan without checking the service was clear”. Counsel then asked Dr Massey to assume that the inlet supply for the air (the “blow-in fan”) was fixed through the course of the work at Kaleen and that the error made was the application of the fibreglass to the inside of the port through which the air came. On the basis of these assumptions Dr Massey was then asked if it was his opinion that one of the causes of the problem was the blocking of the inlet port from the inside with fibreglass. After confirming that this was his opinion, he was taken to page 13 of his report in which he had stated that “[s]hortly after leaving the tank [the plaintiff] realised that he had applied fibreglass over the air supply port...” and was asked to explain the source of that assumption. Dr Massey replied “I think the source of that would’ve been my conversation with Mr Dean, and/or the other witness statements.”
150. At the request of his lawyers the plaintiff was seen by Dr Howard de Torres, a hand and plastic and reconstructive surgeon on 28 April 2015. In a report dated 8 May 2015 Dr de Torres noted that the plaintiff had suffered significant burns which had resulted in the following:
· webbing between the thumb and fingers of his left hand;
· abduction contractures of his left fifth digit;
· itchiness, mainly of his right arm with exertion;
· fragile skin which is very dry and will always need emollients; and
· obvious and irreversible scarring.
151. Dr de Torres stated that, from a physical point of view, the plaintiff could return to some form of employment, provided that it was indoors. If he was working outdoors, his skin would need to be protected. Dr de Torres believed, however, that the plaintiff’s major problem was psychological. Using the AMA Guides to the Evaluation of Impairment, 5th Edition, Dr de Torres assessed the plaintiff’s whole of person impairment at 36%.
152. On behalf of Caltex, the plaintiff was examined by Dr Michael McGlynn, a Hand and Plastic Surgeon on 14 July 2014. His diagnosis was that the plaintiff had sustained extensive scarring of his upper and lower limbs caused by burns sustained in a work accident on 11 September 2012. Current treatment included daily application of moisturising cream to the scarring and application of sunblock lotion when required. At that time the plaintiff was on no medication and having no physiotherapy or other treatments. Dr McGlynn expressed the opinion that the plaintiff had some permanent incapacity for work. He said:
The extensive scarring is fragile and easily damaged by direct sunlight. Thus he needs to permanently avoid occupations where he needs to be in direct sunlight for longer than several minutes at a time, and occupations where the scarring is exposed to frequent trauma such as some heavy manual jobs. In addition, his burns doctor has told him to avoid environments where there are volatile glues, resins and similar chemicals that may irritate the scarred skin.
He will also find hot environments difficult to cope with for more than a short period of time because of the extent skin damage and the effect this has on normal sweating.
153. Dr McGlynn subsequently reviewed the plaintiff on 3 April 2017, and produced a report of the same date. For the purposes of that report he reviewed a number of reports provided by medical and rehabilitation specialists. In Dr McGlynn’s opinion the common theme found in those reports was that the plaintiff had regained physical fitness following treatment of his burn injuries, but psychological factors made it impossible for him to resume his preinjury occupation. Dr McGlynn reiterated his opinion concerning the plaintiff’s ongoing incapacities, as quoted in the previous paragraph.
154. I am satisfied that the plaintiff sustained the physical injuries described by Dr de Torres and Dr McGlynn. There is no doubt that these injuries were extremely painful, as was the process of recovery. The real point of contention between the parties is the extent to which the plaintiff is likely to suffer economic loss as a consequence of his injuries. Before dealing with that issue, however, I will consider the expert evidence regarding his psychological condition.
155. The plaintiff was seen by Dr Thomas Oldtree-Clark, a consultant forensic psychiatrist, on 28 April 2015. In a report dated 29 April 2015, Dr Oldtree-Clark expressed the opinion that the plaintiff was suffering from a Post-Traumatic Stress Disorder as a consequence of his accident. This related to a Major Depressive Disorder. He considered that the plaintiff had stabilised. He noted that the plaintiff had managed to obtain work and attempted to overcome his fears.
156. In a further report dated 5 May 2015, Dr Oldtree-Clark assessed the plaintiff as suffering from a 15% whole person impairment on psychiatric grounds.
157. The diagnosis of a Post-Traumatic Stress Disorder was supported by Karen Mulready, a psychologist, in a report dated 16 December 2016.
158. On behalf of Caltex the plaintiff was seen by Dr Matthew Jones, a psychiatrist, on 30 June 2014. In a report dated 25 July 2014, Dr Jones stated:
Mr Darcy is a forty-six year-old man who experienced a traumatic incident where he was involved in a fire in a confined space. He reported that he received third-degree burns to 33% of his body and has undergone considerable rehabilitation in that arena. He reported a determined recovery and ultimately has had a good functional and cosmetic result.
Mr Darcy gave a history of having considerable psychological symptoms associated with the accident with nightmares and post-traumatic stress type symptoms. He reported that he still experiences a modicum of these symptoms including both related and unrelated dreams and a jumpiness and nerviness at times.
Mr Darcy is currently seeing a psychologist every month and had more intensive psychological therapy closer to the accident. Mr Darcy is not apparently taking any psychiatric medications.
Mr Darcy reported a history and presented at examination as consistent with not having an active psychiatric disorder and his ongoing residual symptoms are beneath the threshold for diagnosing an ongoing disorder, but are consistent with a post traumatic stress disorder in near remission.
From a treatment perspective Mr Darcy appears to have done well with seeing his psychologist and, from a supportive perspective, continuing to see his psychologist on a monthly basis would be appropriate.
159. With regard to whether the plaintiff’s condition has resulted in any incapacity for work, Dr Jones stated:
From a psychiatric perspective, Mr Darcy has capacity for employment. He has some physical restrictions such as exposure to sun and some restrictions related to his skin. I am unable to be certain of exact dates, but there would have been a considerable period when Mr Darcy was significantly psychiatrically impaired in his capacity for work, notwithstanding his physical injuries.
160. Dr Jones reviewed the plaintiff on 7 July 2015, and provided a further report dated 23 July 2015. Dr Jones noted that the plaintiff reported having bouts of occasional depression, and problems with his sleep. He further reported having some sexual performance issues. In summary, Dr Jones said:
Mr D’arcy is a forty seven year old married man whom I assessed twelve months ago and at which time I did not diagnose him with an active psychiatric disorder but he had some residual post traumatic stress type symptoms.
At the most recent assessment, Mr D’arcy’s reported narrative and his presentation on mental state examination were consistent again with him not having an active psychiatric disorder. There were still residual post traumatic stress type symptoms as well as some reported physical limitations. There was no ongoing psychiatric impairment or incapacity with regards to work in suitable employment, other than restrictions such as not working with fire, working in enclosed spaces, or in his previous work role.
From a treatment perspective, Mr D’arcy has been seeing a psychologist who has been very supportive and Mr D’arcy reported it was very beneficial. Although Mr D’arcy does not currently have an active psychiatric disorder, continuing with psychological therapy would likely prevent deterioration. He is not taking any medications and none is recommended.
161. The plaintiff was again reviewed by Dr Jones on 28 February 2017, and a further reported dated 3 March 2017 was provided. He continued to report disturbed sleep and pain. His energy levels were diminished. He reported that he was trying to look for work and was applying for different jobs, even ones he knew that he would have trouble with. He was finding it difficult to find employment. In summary, Dr Jones said:
Mr Darcy is a forty-eight year-old married, father of three who is currently working intermittently in a casual part time role as a delivery driver for the Council. He is also actively job-seeking for full-time work, however wonders about his capacity to do more than part time.
Mr Darcy reported, and has a history of, physical problems including scarring and skin sensitivity and chronic pain. He reported he was recently diagnosed with polymyalgia rheumatic, put on Prednisone and this improved somewhat however he persists with residual symptoms including pain and fatigue.
From a psychiatric perspective, Mr Darcy reported a history and presented at assessment as consistent with my previous assessments of him. He reported ongoing psychiatric symptoms including sleep disturbance, weird dreams, lethargy and variable mood, however most of these symptoms would be best seen in the context of his ongoing physical problems, Mr Darcy having received a recent diagnosis of polymyalgia rheumatica. As previously, there are some post traumatic and mood type symptoms related to his injury however these would not be considered of sufficient severity or of sufficient impact to justify the diagnosis of an active psychiatric disorder. Having said this, Mr Darcy’s ongoing treatment with an antidepressant is probably assisting his mood, anxiety symptoms and his pain and his ongoing psychological therapy, currently with his wife, is also likely assisting him in managing his difficulties.
From a capacity perspective, Mr Darcy has reasonable psychiatric capacity to work in suitable, alternative employment. He is actively job-seeking. There are a number of physical limitations which are outside my area of expertise. Mr Darcy may have difficulty with high stress, high responsibility or highly complex roles however he should be able to manage up to a moderate level in these areas.
162. Caltex submitted that based upon evidence of the contents of the plaintiff’s Youtube site, I should be satisfied that he has exaggerated his level of accident related disability. It is submitted that footage of the plaintiff engaging in activities such as riding a trail bike on rough tracks, windsurfing and scuba-diving is inconsistent with the plaintiff’s claims of continuing breathing difficulties and sensitivity in his hands. I do not accept these submissions. The windsurfing videos do not demonstrate lengthy periods with the plaintiff on the windsurfer. What Caltex described as scuba-diving was, in fact, the plaintiff using a breathing tube powered by a 12 volt air pump in shallow water while treasure hunting in a lake or lagoon. His ability to undertake that activity is not inconsistent, in my opinion, with his evidence of ongoing breathing problems. In addition, as an activity in water it enables him to keep cool.
163. With regard to the footage showing the plaintiff riding a trail bike, it shows the plaintiff undertaking a single ride with his son on one morning, totalling just under 12 minutes in length, and broken up into short sections where the plaintiff stopped and waited for his son. As the plaintiff submitted, the video really demonstrates nothing more than the ability of the plaintiff to ride a motorcycle on a single occasion of up to 12 minutes, with several breaks, but says nothing at all about his capacity to undertake such activity on a regular basis over a period of hours, days or weeks.
164. To my mind, the most significant circumstance with regard to this material is that the plaintiff made no effort to hide it. The plaintiff never suggested to those who saw him for medicolegal reports that he was totally incapacitated, and gave frank evidence about engaging in these activities in the proceedings before me. Evidence of the activities undertaken by the plaintiff, as revealed by the Youtube footage, does not adversely affect the plaintiff’s credit. Indeed, it is to his credit that he has attempted to engage in pre-accident activities and to make his life, and those of other members of his family, as normal as possible.
165. The only real difference between the evidence of Dr Oldtree-Clark and Dr Jones appears to be that Dr Oldtree-Clarke considers that the plaintiff should still be diagnosed as suffering from post-traumatic stress disorder, whereas Dr Jones considers that the plaintiff has sufficiently recovered from that disorder to no longer warrant a diagnosis of a formal psychiatric disorder. It is important, however, to note that Dr Jones accepts that the plaintiff continues to exhibit symptoms consistent with a post-traumatic stress disorder near remission. In my opinion it is unimportant whether the plaintiff, in a technical medical sense, satisfies the requirement for diagnosis of a condition such as post-traumatic stress disorder. What is significant are his continuing symptoms, and their effects upon his life and his ability to maintain employment. In that regard, I accept the evidence of the plaintiff. The plaintiff struck me as being an honest and frank witness, who is frustrated by his inability to perform tasks and undertake forms of employment which he could perform and undertake prior to the accident.
Assessment of damages – Fuel-Sys
166. Although the plaintiff was injured in the ACT, as a result of negligence occurring in the ACT, his claim for damages is governed by the law of New South Wales. Section 182D of the Workers Compensation Act 1951 (ACT) (WCA) provides that the substantive law of the “Territory or State of connection” governs the determination of a damages claim on behalf of a worker in relation to a work-related injury. The substantive law of the State of connection includes a law that limits the amount of compensation or damages that can be recovered: s 182B(1)(e) WCA. The “employment connection test” is set out in s 36B of the WCA, and consists of a cascading series of tests to determine a worker’s Territory or State of connection. It is unnecessary to consider the employment connection test in detail, as the plaintiff concedes that the application of the test results in his claim against Fuel-Sys being subject to the substantive law of New South Wales. It is further conceded that the application of the law in New South Wales to the plaintiff’s claim against Fuel-Sys results in his claim being limited to damages for economic loss.
167. The plaintiff submitted that although he has a capacity to undertake some tasks, in the light of his age, skills and experience it is unlikely that this capacity will translate into a capacity to earn more than a modest income from casual employment in the future. Caltex, on the other hand, submitted that the plaintiff’s employment with Wollongong Council demonstrated a capacity to earn up to $1106.00 nett per week.
168. It is not appropriate to assess the plaintiff’s remaining capacity to earn from the high water mark in his employment with Wollongong Council, employment that was arranged through his rehabilitation provider. A combination of the plaintiff’s prior training and experience, and the limitations on the type of employment that he can now undertake due to the injuries sustained in the accident means that it is highly unlikely that the plaintiff will be able to obtain full-time employment in a suitable capacity in the future. I accept that the plaintiff has unsuccessfully attempted to find appropriate employment, which supports the view I have formed. On the other hand, it would be wrong to treat the plaintiff as totally incapacitated. It would also be wrong to assess his loss by reference to the period of relative employment inactivity on the part of the plaintiff during his employment with Fuel-Sys. This period of employment inactivity was inconsistent with his long history of consistent employment, and was adequately explained by the promises made to the plaintiff by Fuel-Sys.
169. Between January and September 2015 the plaintiff was employed by Wollongong Council for 55 days. I would round this up to an average of 7 days per month, or 56 hours. This equates to an average of 14 hours per week, which at $27.20 per hour equates to a gross sum of $380.80 per week, or $375.00 per week nett. I do not suggest that this is an accurate assessment of the plaintiff’s residual earning capacity, but it is useful as a comparison. In his written submissions the plaintiff has suggested a residual earning capacity of approximately $833.00 per week nett, on the basis of his demonstrated earning capacity at Wollongong Council, and this appears to me to be a reasonable assessment.
170. In order to determine future economic loss it is necessary to compare residual earning capacity with the earning capacity of the plaintiff had he not been injured. As I have said, I would assess his residual earning capacity at $833.00 per week nett.
171. At the time of the accident the plaintiff was earning approximately $841.00 nett per week working for Fuel-Sys, however Fuel-Sys had not been providing him with regular work. I accept the plaintiff’s evidence that he had been promised a rapid and substantial increase of the work offered to him by Fuel-Sys, allowing him to work up to seven days a week. It is now clear that this promised work would not have eventuated. The plaintiff submitted that it is unlikely that he would have continued working for Fuel-Sys if the promised work had not eventuated, and that with his skills and experience he could have expected to find work that paid not less than average weekly earnings. Caltex, on the other hand submitted that the plaintiff’s pre-accident earning capacity was in the order of $800.00 per week, based on his work with Fuel-Sys.
172. I accept that the plaintiff was a skilled tradesman who was prepared to accept some inconsistency in his employment, and therefore earnings, with Fuel-Sys on the basis of a promised significant increase in his days of work (and therefore earnings) once Fuel-Sys’s business flourished as it anticipated. It is highly unlikely that he would have continued working for Fuel-Sys indefinitely if the promised increase in work was not forthcoming. On the other hand the plaintiff had a history of earning less than the average weekly wage. In assessing the plaintiff’s pre-accident earning capacity, bearing in mind the particular difficulties in the case, it would be reasonable to assess his earning capacity at 80% of average weekly earnings, which is comparable to what it may be inferred he would have earned if the promised increase in work of Fuel-Sys had eventuated.
173. On that basis, the plaintiff’s pre-accident earning capacity for the purpose of calculating future economic loss is 80% of $1773.80, or $1419.00 per week.
174. I would also adopt 80% of average weekly earnings as the basis for calculation of past economic loss after 1 July 2014. All figures are reduced by the plaintiff’s earnings. I would calculate past economic loss as follows:
| Period | Weeks | Nett loss p.w. | Total |
| 11.9.12 – 30.6.13 | 41.71 | $795.00 | $33,159.45 |
| 1.7.13 – 30.6.14 | 52 | $1185.17 | $61,628.84 |
| 1.7.14 – 26.2.15 | 34.29 | $1296.24 | $44,448.00 |
| 27.2.15 – 30.6.15 | 17.57 | $1296.24 | $22,774.94 |
| 1.7.15 – 30.6.16 | 52.00 | $1363.44 | $70,898.88 |
| 1.7.16 – 30.6.17 | 52.00 | $1376.24 | $71,564.48 |
| 1.7.17 – 1.7.18 | 52.00 | $1387.04 | $72,126.08 |
| Total: | $376,600.67 |
175. From this sum, the actual earnings/income of the plaintiff needs to be deducted. Based on the plaintiff’s tax records I understand his nett income to have been:
| Year | Nett income |
| 1.7.12 – 31.6.13 | $43,580.00 |
| 1.7.13 – 30.6.14 | $34,537.00 |
| 1.7.14 – 30.6.15 | $39,160.00 |
| 1.7.15 – 30.6.16 | $38,252.23 |
| Total: | $155,529.23 |
176. I do not have any subsequent income records for the plaintiff. The parties will need to adjust the figure of $155,529.23 to incorporate income received by the plaintiff from 1 July 2016 to 30 June 2018.
177. I was advised by the lawyers for Fuel-Sys by email dated 1 August 2018 that the amount of Workers Compensation payments made to the plaintiff to date is $235,520.91. The plaintiff’s lawyers were included in this email, but I have not been advised whether that sum is agreed. Similarly, on 2 August 2018 the lawyers for Fuel-Sys advised that they believed the Fox v Wood component had increased to $32,354, which has been agreed by the plaintiff.
178. I would assess future economic loss on the basis 80% of average weekly earnings ($1387.04 per week), less residual earning capacity ($833.00 per week) for a period of 17 years. On a 5% multiplier table, and allowing 15% for vicissitudes, this equals $283,879.01.
179. As I understand it, the Fox v Wood component is agreed at $32,354.00.
180. Lost superannuation benefits on past economic loss (at 11%) will need to be agreed. Lost superannuation benefits on future economic loss (at 11.5%) is $31,226.70
181. The total liability of Fuel-Sys, under the law applicable in New South Wales, is:
| Past economic loss | To be agreed |
| Loss of superannuation benefits on past economic loss | To be agreed |
| Future economic loss | $283,879.01 |
| Loss of superannuation benefits on future economic loss | $31,226.70 |
| Fox v Wood | $32,354.00 |
Assessment of damages – Caltex
182. While I found that Caltex is not liable to the plaintiff, it is nevertheless desirable to assess damages against Caltex to avoid having the matter remitted if I were to be proved mistaken on appeal.
183. I would assess general damages at $300,000.00, of which I would attribute 60% to the past and 40% to the future. I would allow interest on the past component of general damages at 2% per annum for 5 years, amounting to $18,000. Past economic loss will need to be calculated consistent with these reasons, as will interest on that figure.
184. In calculating future economic loss I would again adopt a figure of a loss of $554.00 per week. On a 3% multiplier table, for 17 years, allowing 15% for vicissitudes, this amounts to $328,382.00.
185. I would assess lost superannuation benefits for future economic loss at $36,122.10.
186. The Fox v Wood component would again amount to $32,354.00.
187. The amounts claimed by the plaintiff for past gratuitous services were high, but in my opinion justifiable in the circumstances of this case where the plaintiff was effectively incapacitated for some months, and still required gradually diminishing care until 2017. I would assess the sum payable at $35.00 per hour, the sum that is usually allowed in this Court. I would assess this claim at $123,033.00, with interest of $21,115.00
188. I assume that the out-of-pocket expenses remains as set out in the plaintiff’s schedule, being $147.296.00. To this should be added a further sum of $10,000.00 to allow for air conditioning of the plaintiff’s home.
189. I accept that the plaintiff will require ongoing treatment and medication. The plaintiff claimed $75 per week, but in my opinion this is too high. The plaintiff has not demonstrated the need for frequent visits to his general practitioner, or to specialists, although he will undoubtedly require further monitoring and treatment. Doing the best I can, I would allow $50 per week. On this basis, and allowing 38 years on 3% multiplier tables with a 15% reduction for vicissitudes, I arrive at a sum of $50,626.00.
190. I would therefore have assessed damages against Caltex, had it been necessary to do so, as follows:
General Damages $300,000.00 Interest $18,000.00 Past economic loss To be agreed Interest To be agreed Future Economic Loss $328,382.00 Fox v Wood $32,354.00 Past Gratuitous Services $123,033.00 Interest $21,115.00 Out-of-pockets $157,269.00 Future treatment $50,626.00 Past superannuation To be agreed Future superannuation $36,122.10
Contribution between defendants
191. In the circumstances of having found that Caltex is not liable for the damage caused to the plaintiff it is neither necessary nor possible to address the issue of contribution.
Costs
192. This is not an appropriate case for a Bullock or Sanderson order. Fuel-Sys should be required to pay the plaintiff’s costs of the proceedings against it, and the plaintiff should pay the costs of Caltex in the proceedings against it. The notices of contribution between Caltex and Fuel-Sys should be dismissed with no order as to costs.
Orders
193. There will be judgment for the plaintiff against the second defendant. The parties are to prepare and file draft orders reflecting these reasons within 28 days.
194. There will be judgment for the first defendant against the plaintiff.
195. The notices of contribution between the defendants are dismissed with no order as to costs.
196. Unless an application for some different order is made within 14 days of the date of publication of these reasons, the second defendant is to pay the plaintiff’s costs of the proceedings against it as agreed or assessed.
197. Unless an application for some different order is made within 14 days of the date of publication of these reasons the plaintiff is to pay the first defendant’s costs of the proceedings against it as agreed or assessed.
| I certify that the preceding one hundred and ninety-seven [197] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 3 August 2018 |
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