Dann v Port Sorell Bowls Club Inc - [2020] TASSC 47

[2020] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Dann v Port Sorell Bowls Club Inc [2020] TASSC 47

PARTIES:  DANN, Kraig Anthony
  v
  PORT SORELL BOWLS CLUB INC

FILE NO:  783/2016
DELIVERED ON:  28 August 2020
DELIVERED AT:  Hobart
HEARING DATES:  25 – 29 November 2019, 3 December 2019
JUDGMENT OF:  Wood J

CATCHWORDS:

Torts – Negligence – Essentials of actions for negligence – Duty of care – Reasonable foreseeability of damage – Particular cases – Other particular cases – Volunteer at a bowls club event sustained burn injury using a barbeque – Attempted to remove a ceramic mug full of flaming fat from under barbeque plate – Not informed about makeshift method of collecting fat and not instructed what to do in the event of a fire – Unsuitable container and not emptied prior to use.

Civil Liability Act 2002 (Tas), s 11.

Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, 239 CLR 420; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42, 234 CLR 330; Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320, 91 NSWLR 752, considered.

Aust Dig Torts [33]

Torts – Negligence – Contributory negligence – Particular cases – Other Cases – Plaintiff failed to make observations of tray and turned up corners before trying to remove ceramic mug from under barbeque – Mug caught on turned up corners of the tray resulting in spillage – Plaintiff acted in haste due to urgency of the situation – Plaintiff's contributory negligence 15%.

Wrongs Act 1954 (Tas), s 4.
Civil Liability Act 2002 (Tas), s 23.

Caterson v Commissioner for Railways (1972) 128 CLR 99; Vos v Hawkswell [2010] QCA 92, considered.

Aust Dig Torts [66]

Torts – Negligence – Miscellaneous defences – Other defences – Voluntary assumption of risk – Plaintiff did not voluntarily agree to the risk that eventuated – Did not advert to the risk that materialised and in the circumstances felt compelled to act – Failure to establish defence.

Civil Liability Act 2002 (Tas), ss 15 and 16.
Carey v Lake Macquarie City Council [2007] NSWCA 4; Dodge v Snell [2011] TASSC 19; Price v Southern Cross Television (TNT9) Pty Ltd [2014] TASSC 70, 25 Tas R 133, applied.
Aust Dig Torts [75]

Damages – Particular awards of general damages – Tasmania – Partial thickness burns to right hand and consequential mental harm, depressive illness and alcohol use disorder – Award of $80,000 general damages for pain and suffering and loss of amenities.

Aust Dig Damages [61]

REPRESENTATION:

Counsel:
             Plaintiff:  B McTaggart SC and P Griffits
             Defendant:  T Cox
Solicitors:
             Plaintiff:  Griffits and Griffits
             Defendant:  Barry Nilsson Lawyers

Judgment Number: [2020] TASSC 47
Number of paragraphs: 340

Serial No 47/2020
File No 783/2016

KRAIG ANTHONY DANN v PORT SORELL BOWLS CLUB INC

REASONS FOR JUDGMENT WOOD J

28 August 2020

On 17 November 2015, Kraig Dann, the plaintiff, was working as a volunteer at the Port Sorell Bowls Club Inc, for a "barefoot bowlers" evening. The Club was catering for about 60 people and the plaintiff had been asked if he would help cook a large quantity of sausages. The Club's gas barbeque was an unsophisticated four burner barbeque. A makeshift method to collect the fat from the barbeque involved a ceramic mug positioned out of sight underneath the barbeque plate. Soon after the plaintiff began cooking the sausages, the mug overflowed and caught fire. The plaintiff turned off the gas, but the contents of the mug remained alight. Mr Dann tried to move the mug which was sitting on a bracket. As the plaintiff moved it, it caught on the upturned corners of the bracket and the fat spilt, severely burning his right hand. The burn injury required extensive medical treatment and he is left with scarring and restriction of movement, and his working capacity is impaired.
The plaintiff brings proceedings against the Port Sorell Bowls Club Inc claiming it was negligent and breached its duty of care to him. The allegations include that the Club failed to provide him with safe barbeque equipment with an adequate fat run-off collection system and also protective gear such as a heat proof mitt and fire safety equipment. Also, it is alleged the defendant failed to provide adequate instruction as to the use of the equipment he was required to use, and provide adequate instruction in fire prevention and fire extinguishing.

The background

The evidence covered background matters that are uncontentious.
The Port Sorell Bowls Club is located in Port Sorell, a coastal town in northern Tasmania. Photographs of the outside of the Club building show the Club building facing the green. In front of the building before the green is a concrete "verandah" which sits several inches above the level of the green. It is where people congregate and watch the bowls. It is also where the barbeque is positioned when it is brought out for use. The barbeque is used for barefoot bowls evenings, also known as corporate bowls. They are held on Tuesday nights during summer for learners or non-bowlers. The evenings had been running for approximately six years.
The plaintiff first cooked on the barbeque when he was new to the Club approximately 12 months before his injury. He was helping out with some of the volunteers on a barefoot bowls night. The barbeque is kept in a locked shed. Members of the committee got the barbeque out of the locked shed, set it up and put it away afterwards. The plaintiff explained that as a volunteer "you would just do the cooking."
During a committee meeting, a few months before his injury, he volunteered to do some barbequing on a regular basis. As one of the witnesses, Luke Marshall recalled, at the meeting, the Secretary of the Club, Graeme Barker asked for volunteers to help run the barefoot bowls evenings, help him collect the money and to cook the barbeque. The plaintiff gave evidence that he was one of the members that "put their hands up", on the basis that he was not available every week but would take it in turns with others.
About a week before his injury, the plaintiff had his first turn since the meeting. He arrived, the barbeque was set up and going. Inside, he collected a plate of sausages and a plate of onions, tongs, and bread. He cooked for about 60 people. After the barbeque, others cleaned up and the barbeque was cleaned by people on the committee and it was put away.
The next time he used the barbeque was the evening he was injured.

The barbeque and the mug

The barbeque is a "Garth" four burner gas barbeque on wheels with a hose attached to a gas bottle. There are photographs of the actual barbeque and the barbeque was tendered on the trial and is in evidence.
The assembly and operating manual of the barbeque is also in evidence. It is called a "jumbuck solid plate bbq 4". There are two wheels on one side so it can be picked up at the other end and moved around. It has a large single solid plate and a hole in the middle of the plate to drain fat and grease. On either side of the plate is a return. There are vents in the front of the barbeque above the four knobs to dispel heat. The barbeque trolley has a wire rack that can be used as a shelf, approximately the same dimensions as the plate, low to the ground.
Underneath the plate there is a metal bracket positioned below the hole in the plate. From the base of the bracket, referred to as the tray, to the barbeque plate is approximately 13.5 cm. A receptacle placed on the tray may be used to collect the fat that drains off the plate. Originally, the barbeque came with a metal receptacle, a "drip can", like a saucepan with a metal handle. It was designed so that it sat on the bracket. The bracket has upturned corners to hold the receptacle in place. Over time that drip can became damaged and was discarded or lost. The barbeque does not have some feature providing for collection of excess fat runoff if the receptacle is full. If the bracket were removed, the fat and grease would drip freely onto the wire rack I have mentioned.
There are rows of burners under the plate, each row in metal housing with holes for the burners on either side of the housing. There is a row on either side of the hole in the plate. The depth/height of the metal housing is approximately 7 cm below the plate. The distance from the edge of the hole in the plate to the closest edge of the metal housing on either side of the hole is approximately 2 cm. Consequently, any overflow from the receptacle on the bracket would be in close proximity to the gas flames. The distance from the front of the barbeque, the panel holding the controls, to the edge of the tray is approximately 18.5 cm.
The barbeque has a metal cover lid that sits on top of the plate, when it was not in use. Someone had written in capitals in a black marker pen the words "EMPTY FAT CONTAINER".
A note in the manual provides:
"NOTE: The drip can should be cleaned on a regular basis. If this is ignored, a build up of fats and greases may cause a fire in the can. More frequent cleaning may be necessary as usage demands."
The evidence establishes that the mug in question belongs to the same set as the mug shown in the photographs that have been tendered. One of the plaintiff's witnesses, Craig Lynch, a Club committee member, measured one of the ceramic cups from the set in the Club kitchen, similar to the one shown in the photographs. His evidence was that the mug he measured was about 100 mm high, he sat the cup on the tray and it was 25 mm above the height of the burners. There is a clearance of approximately 35 mm from the top of the mug to the plate. I note that the base of the mug in the photograph is approximately the surface area of the tray. Further, it may be noted that a mug of this height (or even taller, say 110 mm high) if lifted to the level of the plate and retrieved, can be removed without catching on the winged edges of the tray.
Tendered with the barbeque is a mug. It appears to be a different style of mug to the one in the photographs, although of a similar height and dimension. It is merely illustrative of the general kind of mug that was in place on the barbeque at the time of the incident. During his evidence, the plaintiff used it to demonstrate what he had done in the moments before his injury. I observe that a mug of this kind, 10-11cm in height, could tip over and be touching the gas burners which are suspended below the plate, with the top of the mug above the burners.

The plaintiff's case

The plaintiff was the principal witness for his case and, indeed, the only witness who gave evidence of the incident. A summary of his evidence is as follows.

The plaintiff

The plaintiff went to the Club on 17 November. His intention was to catch up with local friends and have a drink after work and either watch barefoot bowls or, if there was a spot free, maybe have a game. He was not rostered to do the barbequing that night. He arrived at about 5.20pm. When he arrived, Graeme Barker, who he understood was on the committee, as the secretary, president or treasurer, came over to him and spoke to him. He said that Paul Marshall was "meant to be doing the barbeque tonight" but he was playing. Mr Barker said to him "we're running late, can you cook the barbeque?"
The plaintiff replied that it was not his turn but that he would help out until Paul finished.
The plaintiff went into the clubrooms and got a beer and Mr Barker came to him and said to him that everything is set up and asked "can you start cooking the sausages now?" The plaintiff agreed and went outside, the barbeque had been wheeled out of the shed, it was set up in its usual place on the verandah and was going. He put the plate of sausages next to the barbeque and started putting the sausages and onions on the barbeque plate. He was cooking and waiting for Paul to finish his bowls so he could take over.
People were starting to arrive. He was cooking and everything was "going along fine". He had been cooking for about 10 or 15 minutes and Paul Marshall had just arrived. Then, he heard a "woof", a "wall of flames" came up in front of him and he jumped back. He described the flames as "really shooting out" of the barbeque, shooting out the back and blowing up the front of the barbeque through the vents and up either side of the hot plate. The flames were about chin height.
Paul Marshall said "what's going on?" The plaintiff bent down and turned the gas bottle off. Having been a fitter and worked on mine sites, he was conscious that in the event of a fire the immediate danger is, if the gas bottle or the gas bottle line catches alight, there is the potential for an explosion. His evidence was that at the time, there was "a fair few people" around the barbeque. The barbeque was about a metre from the bowls green and there were people on the concrete between the barbeque and the green.
Having turned the gas off, he expected that the flames would go out but the flames continued and in fact were "dripping down" below the barbeque. There was butchers' paper on the rack at the base of the barbeque. There was hot fat dripping onto the paper and the paper was starting to catch fire. There was fire also coming up through the hole in the centre of the barbeque.
The plaintiff then got down on one knee and looked under the barbeque. He saw a ceramic cup sitting "on a little round thing". It was on an angle touching the gas burner and there was hot fat bubbling out of the cup and hitting the burners. The fat was on fire. The hot fat was also dripping down onto the paper, causing a fire. The plaintiff said that he said to Paul "I don't know why someone has put a ceramic cup under there because … something like this can explode". The plaintiff gave evidence that he was conscious that under heat, glass or ceramic can explode. He said he and Paul agreed that if "this cup falls out full of hot fat or if it explodes, …, there's going to be hot fat and glass shards … going to go all over". There were a lot of kids at face level with the barbeque. He said that was his main concern. He and Paul were trying to say "Get away kids". He gave evidence that he believed that if that cup fell over or exploded, there was going to be hot fat splashing and hot shards of glass.
The plaintiff put his sunglasses on, and looked under the barbeque and said to Paul, "We need to get this out. We need to stop this danger". He asked Paul to go and grab him something to wrap around his hand and Paul replied that there was not enough time. The plaintiff wrapped his hand in paper towel that was sitting on top of the barbeque with the purpose of grabbing the handle of the mug and removing it from its position, and extinguishing the fire. He grabbed the handle, touching it quickly to see how hot it was. It was hot but he knew he could get it out safely and "put it on the ground without burning".
The mug was on an angle and it was jammed in against the burners, which was what was causing the fires. As he grabbed hold of the mug, and pulled it out, it caught on one of the folds of the bracket and the hot fat went across his hand. He further explained, he grabbed hold of the handle and as he "started to wiggle it out", the cup fell over and hot fat spilt across his hand. He was asked why he had to wiggle it, and he said because it was wedged in there. He did not know whether it was stuck because of the fat that was on the bracket and the cup, or whether it had tipped and wedged against the burner, but it was wedged in there.
He explained that the top of the cup was above the burners, the hot fat was bubbling out of the cup and going onto the hot burners, "causing the fire, and the fat to keep bubbling and spilling fire over".
He was asked whether, before he grabbed the cup with the paper towel, he thought about what risk there might be to his own health. He responded that he did not really think about that; he was more concerned that if the cup exploded or fell out, there would be hot fat going everywhere and shards of glass exploding; there were a lot of children around and other people; and a chance of children being blinded.
There were no cloths or mitts near the barbeque. There was no fire extinguisher in the vicinity. There was a hose nearby but he was well aware that you do not spray water on hot fat.
He had not seen a manual, he had not received any instruction from anyone about the barbeque or the fat container, and there was no instruction on the barbeque itself. He was shown a photograph of a barbeque cover with the words "EMPTY FAT CONTAINER" in black marker. He had not seen it before 17 November 2015. He did not see the lid until approximately six months before he gave evidence. The barbeque was kept in the Club shed when it was not in use.
He had not received any instruction or advice from the Club about what to do in the case of a fire relating to the barbeque. He had not been told about whether there were any fire extinguishers for use.
The plaintiff was asked about the mug that was positioned under the barbeque collecting the fat. He said it was the type of cup that is shown in the photographs that were tendered and they are normal coffee cups that are sitting out on the bench at the Club. There are hundreds of them.
As the fat spilt over his hand, he felt intense heat but kept hold of the cup and put it down on the ground and then he went straight into the kitchen. He put his hand under running cold water for a "good 20 minutes". He described the burning sensation as "incredible".
He filled the sink up with water to put his hand in but his hand was so hot that within 30 seconds of his hand being in the water the water started to get hot. Graeme Barker went past and the plaintiff asked him for an icepack which he obtained for him. He was in a lot of pain and after about 20 to 30 minutes, he walked home "about 10 minutes away" with the icepack on his hand. By the time he reached home, the pain level "was starting to get way too much". He ran his hand under water. He rang somebody in the local community that he was aware was an ambulance officer in a first response vehicle. She called an ambulance. By the time the ambulance arrived he was vomiting due to the pain. He was taken to hospital.
The plaintiff was shown a photograph of the barbeque which showed a bucket on the shelf below the plate. He was asked whether the bucket was there at the time he was using it on 17 November or the week prior. He said it was not there then, it was put there after his accident. He first saw it a couple of weeks after his accident and saw it contained sand.
In cross-examination, it was put to the plaintiff that the sensible response would have been to clear people from the area. The plaintiff gave evidence that Paul Marshall said "get away kids" and the plaintiff probably said that too, although he could not remember doing so. He acknowledged it was the sensible thing to do. He agreed he did not take further steps to clear people away from the danger.
It was suggested that there were three fire extinguishers at the bowls club at the time of his injury, in the kitchen, the bar and the hallway. The plaintiff responded that he was unaware of that. It was suggested that he could have asked someone whether there were any fire extinguishers around. He replied "No, cause we was – felt like we was under the pressure to do something right there and then".
He was asked about an answer he gave that he was concerned that if the cup had fallen out and broken, and if the hot fat had exploded and gone up the side of the building, it probably would have caught fire. He maintained that the barbeque posed a risk of the premises burning down.
He was asked whether he had previously complained about the barbeque. He said that "we did put in a complaint to the bowls club". Someone else was cooking and there was a flare up. That was suggested to be a recent invention which he denied.

He was questioned about the history he gave to medical practitioners, Dr Evenhuis, Mr Dixon and Mr John de Jong. He agreed that he saw Dr Evenhuis in May 2017 and that he said that he had got tea towels so that he would be able to remove the ceramic mug. The plaintiff explained that he was not sure whether it was a tea towel or paper towel. He agreed that he told him he had arranged a "shield" so that if there was an explosion others would not be harmed. He explained that "we stood between the barbeque and the green where the kids were".
He saw Mr Dixon in October 2017. He was asked whether he told Mr Dixon that the ceramic cup broke, the fat burning his right hand. The plaintiff responded that he did not tell Mr Dixon that.
He agreed that if the mug had exploded in its position, parts of the barbeque may have contained an explosion. He agreed that the time when the mug might explode was completely unknown, he did not know if it was going to explode in one second or 10 seconds or even at all.
When he first looked under the barbeque, it was suggested he had a "good look" at the mug. The plaintiff replied "not a real good look." He looked at it for five seconds. He was asked whether he noticed the tray it was sitting on. He said "No, not really". He did not notice the turned up edges of the tray, adding "there was hot fat and fire dripping down."
He was asked to demonstrate his actions from when he had asked Mr Marshall to "go and get some cloths", and Mr Marshall said "there's not time". Mr Marshall ripped off some paper towel and gave it to him to wrap around his hand. He demonstrated how Mr Marshall had spun out the paper towel "pretty quick". He showed how paper towel was wrapped around his hand and demonstrated his actions in kneeling and trying to pull the mug out. He did not agree that he could not properly see the mug. He did not lift the mug, he tried to pull it straight out. It caught the edges of the tray and spilled on his hand. He said he knew he could "get it out safely and put it on the ground without burning".
He was asked whether, with the benefit of hindsight, he accepted that the better decision was to leave it alone. He did not agree with that and explained:
"It was an action right at the time and that split second was that I thought there was immediate danger to other people, to other kids, and my decision right then was if I didn't do something something catastrophic could happen to injure someone else"
He said at the time he tried to remove the mug, the gas had been off for about a minute but he maintained that flames were still coming out of the vents at the front, and the hole in the centre of the plate and the butchers' paper was on fire.
The extent of the cross-examination regarding the incident directly challenging the account given by the plaintiff is limited to the following matters:
"Q:All right. I want to suggest to you that there wasn't any flame coming out of the vents at the front when you went to remove the cup. You disagree with that?
A:Disagree with that.
Q:There was no flame coming up through the hole in the centre of the barbeque. Disagree with that?
A:Yes, I do.
Q:There was no chance of the premises burning down?
A:Disagree with that.
Q:You didn't hold that belief at that time. Disagree with that?
A:I do disagree with that.
Q:Yes?
A:If there was no fire or anything like that why would I attempt to do anything?
Q:Yes; that there was little risk to children being injured because you had cleared them away. Agree with that?
A:Disagree with that.
Q:Okay. The fire because the gas had been off for a minute was going out?
A:Disagree with that.
Q:The butcher's paper was not on fire, beneath the barbeque?
A:Disagree with that."
The plaintiff did not call Paul Marshall and I shall return to that matter as it was relied upon by the defendant. The plaintiff called Luke Marshall and Craig Lynch. Largely, their evidence was not challenged.

Luke Marshall

Luke Marshall was a member of the Club at the time of the plaintiff's injury and had been a member for 17 years. He was Vice President of the Men's Committee and had held that position for two years. He was familiar with the barbeque and said that the Club had owned it for as long as he could remember. The Secretary and Treasurer of the Club, Graeme Barker, had organised the barefoot bowlers evenings for a number of years. Graeme Barker organised the barbeque equipment and he continued to do that until Mr Dann's accident. He used to get the barbeque out of the shed.
At the meeting when the plaintiff and Mr Marshall's brother volunteered to help with the barbeque, Luke Marshall volunteered to help with the administration side of the competition.
On the evening of the plaintiff's injury, Mr Marshall arrived at about 4.15pm to help Graeme Barker set up. Graeme got the barbeque out of the shed and put it into position and Mr Marshall got the bowls trolley out. He helped Graeme in the kitchen cut the sausages up (approximately 100-120), prepare the onions, put the utensils on the trolley and take the trolley out to the barbeque.
Mr Marshall has the same kind of barbeque at home. He found an effective way of providing for the fat run-off was to cut a large Milo tin, so it is about 300 mm tall and 150 mm wide, put sand in the bottom of it, remove the bracket and place the tin on the wire rack.
Mr Marshall described himself being very familiar with the Club premises at the time of the plaintiff's accident. He was not then aware of any protective gloves kept at the Club premises. He was not aware of any fire extinguishing equipment such a fire blanket or fire extinguishers.
Mr Marshall now runs the corporate bowls evenings and has done so since the night of the plaintiff's accident. He was shown a photograph of the barbeque with a bucket underneath on the rack. He first saw that the following Tuesday after Mr Dann's accident. The bucket has sand in the bottom of it. The bucket is used every time the barbeque is used. To his recollection there have been no fat fires since.

Craig Lynch

Craig Lynch has been a member of the Club for 12 years and he has been a committee member in the past and Club President from 2015-2017.
He is familiar with the barbeque that was involved in Mr Dann's accident. He operated it on a regular basis in 2013-2014. When he was using the barbeque, a square of vinyl was laid on the concrete to prevent any splashes. The barbeque was placed on the vinyl and a flat cardboard box was placed on the wire rack and Mr Lynch used a Boags beer can with the top cut off to catch the overflow which he placed on the cardboard on the rack.
He did not know what others used before him. Once he had cleaned the barbeque he would dispose of the can in the rubbish and the next week use a fresh can. Generally during each use of the barbeque about a third of a can of fat would accumulate.
Since the plaintiff's accident he has helped run the barefoot bowlers evenings. He has been in charge of bringing the barbeque out and setting it up and bringing out the sausages, the bread, and the tongs and leaving it all for the person actually cooking the barbeque. The bucket with sand in it has been used since the plaintiff's accident.
He was not issued with heat protective gloves and he did not see any before the plaintiff's accident. There were no fire extinguishers in sight. He used to go in and out of the kitchen all the time and he did not see any fire extinguishers. He did not see fire extinguishers on the club premises in the period of a year before the plaintiff's accident. He was not given any instructions as to how to deal with a fat fire.

The defendant's case

The defendant did not dispute that there was a fire, and that the plaintiff turned off the gas and made the observations about the mug and the fat on fire bubbling over. The extract of cross-examination at [47] reveals a dispute about the extent of the fire after the gas was turned off. The challenge to the plaintiff's case also involved questioning the wisdom of his response. It was suggested that he could have simply cleared the area of people to eliminate the risk of harm to anyone, obtained a fire extinguisher or asked for one or, failing that, called the Fire Service. It was also suggested that there was no real risk that the Club building may catch on fire. It was suggested as well that, contrary to the plaintiff's evidence and that of Mr Marshall and Craig Lynch, there were fire extinguishers and indeed a fire blanket at the Club, and at least two extinguishers were in plain sight.
The defendant called Graeme Barker and two other Club members, Mr Led Best, and Mr Arnold Bean.

Graeme Barker

Mr Barker has been a member of the Club since 2002 and Secretary from 2003 to 2016. The barbeque had been at the Club for some 4-5 years before the plaintiff's injury. It came with an original tin to be used as a fat container but that disappeared. He was aware that a mug had been placed under the barbeque. That was used as the fat container for roughly a year before the plaintiff's accident. At another time, a tin similar to the original one had been used.
Mr Barker was asked about his practice at the beginning of the 2015 season (November). He would get the barbeque out of the shed and set it up on occasion. This involved opening the shed and wheeling the barbeque out and into position. He would usually help with preparing the food and putting out utensils. He did not remember doing that on the occasion the plaintiff was injured but accepted he may have done.
He became aware of the incident regarding the barbeque after the plaintiff was injured. He accompanied Mr Dann to the kitchen and stayed with him for a short while, and got a bag of ice. He recalled obtaining a tube of burns cream from the first aid kit and took it to the kitchen. It seems he may not have drawn it to the plaintiff's attention. He made a phone call to a member who was a member of the First Response Unit, to ask her to come down to the Club but unfortunately she did not answer the call. When he returned to the kitchen, the plaintiff had gone.
In cross-examination, he denied lighting the barbeque and said he would very seldom do that and that he only did so if he was cooking. He said if he had lit it, he would remember doing so. He said that on the evening of the plaintiff's accident, he did not know whether the mug used to collect fat was empty or not. He agreed that if it was full and someone tried to remove it from underneath the barbeque it would have been difficult, if not impossible, to do so without spilling it. He also agreed it was necessary to lift the mug about 4 millimetres to clear the "return". I understood this to be a reference to the corners of the bracket.
He agreed that after the barbeque was delivered to the Club, one of the members, Rex Marshall wrote on the lid "EMPTY FAT CONTAINER". Other than that, there were no instructions to members in respect of using the barbeque. He accepted there were probably instructions with the barbeque when it was purchased but he did not recall seeing them.
He gave evidence that at the time of the plaintiff's injury, there were three fire extinguishers at the bowls club premises, one was in the kitchen, on the wall above the bench, not far from the stove. The distance from the barbeque was about 30 metres. There was also a fire blanket on the wall next to the fire extinguisher. There was another fire extinguisher at the far end of the dining room near the exit door, approximately 45 metres from the barbeque. The third fire extinguisher was near the bar, in the storeroom. There is a small short passageway between the bar and the storeroom. People were not encouraged to go into that area. There was a first aid kit inside the front door of the Club on a small table, a few metres from the barbeque.
Tasmania Fire Service would regularly attend, conduct inspections and test each fire extinguisher. As secretary he would pay their accounts. Sample accounts were provided for 31 March 2015 and 31 August 2015 from Tas Fire Equipment. It can be inferred that at the material time, there was a fire blanket and three extinguishers, and a fire hose reel that were inspected.

Led Best

Mr Best had been a member of the Bowls Club for about 10 years. He gave evidence that there were three fire extinguishers at the club, in the kitchen, dining area and in the bar area. In cross-examination, he agreed that it was a commercial kitchen and people were not encouraged to go in there. There was a first aid kit inside the door to the dining area, about 10 paces from the barbeque. Mr Best became Secretary of the Club in 2016. In his time as secretary, Tasmania Fire Service inspected the fire extinguishers every six months.
Before the plaintiff's injury he had cooked on the barbeque once or twice. He was aware that a ceramic coffee cup was used as a fat container. He was aware that the barbeque had been supplied with a metal cup, two and a half inches in diameter, two inches high with a handle probably two – three inches long. That had rusted out.

Arnold Bean

Mr Bean has been a member of the Port Sorell Bowls Club from about 2002. He used to cook on the barbeque during the 2013 and 2014 season. When he first started using the barbeque, there was a fat container under the barbeque. It was a tin mug with no handle that sat on a bracket. It was awkward to get in and out. He replaced it with a mug from the kitchen because "it had a handle on it for starters", and after he had finished using it he would "just go and get a new one". He had not experienced any fat fires while using that method.

Consideration of the evidence and the disputed facts

As previously observed, the attack on the plaintiff's credit in cross-examination was relatively narrow, especially in terms of his narrative of the events. There was evidently a dispute about the extent of the fire once he had turned off the gas and whether it was as significant as he said it was. His attempts to usher the children away were challenged as unsatisfactory, and his belief that the building would catch fire was said not to be believable, and so was his belief that there were no fire extinguishers. There was an attack on the wisdom of his response which I will deal with a little later.
It became apparent during the defendant’s closing submissions that there were many other aspects of the plaintiff’s account of the incident and his response to it that are called into question that were not challenged in cross-examination. Indeed, it was contended that I should reject his version of events or at least find it was substantially exaggerated. For example, his account that the butchers' paper was burning, his state of mind about the cup exploding, and the use of his sunglasses were said to be self-serving and "extraordinary". In relation to this extensive attack on the plaintiff's account, various matters were highlighted.

Consideration of the Club's contentions regarding the plaintiff’s evidence

The history taken by Dr John de Jong from the plaintiff in April 2016 was highlighted in that it contains fewer details than those included in the plaintiff's evidence. It was suggested that the additional details are an exaggeration or an embellishment. The plaintiff was not cross-examined about the history he provided to Mr John de Jong. He did not have the opportunity to respond to the suggestion made. I do not regard the difference in detail as supporting the contention of exaggeration. It may be accounted for by the plaintiff's understanding of the detail required by Mr John de Jong compared with his understanding of what was required when giving evidence.
The difference in the account he gave to Dr Evenhuis pointed out in cross-examination does not cause me to doubt the veracity of his evidence. In relation to the history recorded by Mr Dixon that the ceramic mug broke, the plaintiff denied saying that and I do not find that he did say that. It could easily have been an incorrect inference or a mistake in the taking of the history.
The plaintiff's account of his conversations with Paul Marshall as the events were unfolding was said to be extraordinary. It can be seen from the summary of the plaintiff's evidence above that these conversations or comments, were contemporaneous with and mirrored or aligned with his evidence of what was taking place and his perspective or state of mind of the situation. For example, the plaintiff gave evidence that he was conscious that the ceramic cup may explode, and he commented to Paul that it could explode. I am sceptical about whether every one of the comments was actually made or rather, in the case of some, they were likely to have been said given what was occurring. Ultimately, this was not significant in my assessment of his credit.At times they struck me as something of a habit, or a style of recounting events. I note it is not uncommon for some individuals to narrate events in this way, "I saw … and I said to so and so …". In my view, the comments did not add to or detract from the plaintiff's evidence of what was occurring or his state of mind. The reliability of the particular remarks did not bear on my acceptance of his evidence of what in fact happened and why he acted as he did.
The defendant urged me to draw an inference from the fact that Paul Marshall was not called as a witness: Jones v Dunkel (1959) 101 CLR 298. It is argued that because Mr Marshall was not called as a witness, the inference that should be drawn is that the evidence of Paul Marshall would not have assisted the plaintiff, and that I should more readily draw the inference that the plaintiff's evidence of his discussions with Mr Marshall was not truthful or accurate, or at least was exaggerated. It was submitted that the content of the conversations was extraordinary, especially the references to the mug exploding and the agreement the men reached about that.
I reject the submission and decline to draw the adverse inference, in this case. The plaintiff's evidence of his conversations with Mr Marshall was not challenged in cross-examination. The plaintiff was not placed in a position where he was faced with a challenge or an issue with respect to the comments he made to Mr Marshall. Further, there was no challenge to the plaintiff's evidence of the specific comments made by Paul Marshall, such as his comment that there was no time to get a cloth. Further, as mentioned, the cross-examination disputing the plaintiff's observations of the fire and the mug was limited. It would have seemed to the plaintiff that the main aspects of the events as described by the plaintiff and as witnessed by Mr Marshall were uncontentious.
Another submission made on behalf of the defendant was that the plaintiff's version of events and his observations of the fire once the gas had been turned off is improbable and his account should not be believed. However, I regard the plaintiff's observations of the flames and the cup once the gas was turned off as reliable. No doubt the plaintiff was bringing a heightened level of concern and anxiety to those observations, and I make some allowance for that in terms of the plaintiff's evidence of the extremity of the situation. His observations were made of events that occurred in the space of a very short period of time of the gas having been turned off. He said, from turning off the gas to inspecting underneath the plate, to telling the children to get back "would have been within a minute". The time frame may well have been shorter than that. Earlier in his evidence he said "everything happened within 30-40 seconds". I do not conclude that any of his observations were improbable. It is feasible that before the mug was extracted there were still some flames above the barbeque plate. He said that when he extracted the mug it was still bubbling over and on fire. That is feasible given the extent of the initial flare up, and factors such as the heat generated and trapped under the plate near the burners, and the very short time frame since the gas had been turned off. The defendant has not sought to present any countervailing scientific evidence to undermine the probability of the plaintiff's observations.

I regard the plaintiff's concern about the building catching fire as not at all realistic but, I do not find his concern in this regard disingenuous, a fabrication, or poorly reflecting on his credibility. If he genuinely thought the mug might explode or fall out and smash, and I accept he thought that, worry about property damage may have been in his mind with other more pressing concerns that he had about the risk to people nearby.
I accept the plaintiff's evidence that he was unaware of the fire extinguishers. They were not obvious and there is no suggestion that they had been previously drawn to his attention. I note that Luke Marshall was also unaware of them and he was more familiar with the Club premises than the plaintiff was.

Conclusions on disputed facts

Largely, I accepted the plaintiff's evidence of the incident. I am satisfied it was a reliable account of his observations and his state of mind at the time of the incident. I found the evidence of his observations persuasive and credible, allowing, as I have said, for a heightened level of concern. I found his concerns about people nearby and that the mug might explode, to be genuine and giving rise to a real sense of urgency and lack of options and that this was the driving impetus for his conduct.
There were some details of his account of the incident that I was not convinced about. As mentioned, I am not satisfied that each and every one of his comments to Mr Marshall or Mr Marshall's comments to him were made. I accept that the plaintiff's account is of the tenor of the exchange. I accept that Mr Marshall acted as described, looking under the plate, that he said there was not enough time to get a cloth and he unravelled the paper towel. The plaintiff was not convincing on whether it was paper towel that he had wrapped around his hand or a cloth, and his recall was impoverished on this point. However, I am satisfied that his account of Mr Marshall unravelling the paper towel was accurate and that is what he used. These observations do not affect my assessment of the veracity and reliability of his account of the central matters, the incident and his reasons for acting as he did.
There were a few peripheral aspects of his account which I found unpersuasive and questionable. For example, I was dubious about whether a complaint had been made about a fat fire on the barbeque a year before. These matters did not undermine my assessment of his credibility as to the incident.
The credibility and reliability of the defendant's witnesses, Mr Best and Mr Bean was not in question. Mr Barker's credibility was not in issue. Mr Barker did not have a recall of bringing the barbeque out and denied lighting the barbeque. The reliability of that denial was in question. For the reasons provided below I found his denial of lighting the barbeque unpersuasive.
I find that Mr Barker brought the barbeque out of the shed and put it in position. He habitually did so prior to this incident and although he could not recall doing so on this occasion, he acknowledged he may have. Mr Luke Marshall's evidence that Mr Barker brought the barbeque out of the shed was not disputed. I also find that Mr Barker helped Mr Luke Marshall prepare food for the barbeque, although again he could not recall doing so. I accept the plaintiff's evidence that the barbeque was already lit and I note there is no suggestion that Mr Luke Marshall lit the barbeque. Given Mr Barker's conduct in bringing the barbeque out and setting it up, and that he asked the plaintiff to start cooking the sausages "now", it makes sense that he would have lit the barbeque. I find that Mr Barker lit the barbeque.
I infer that the mug had not been replaced or emptied before the barbeque was lit and used. Mr Barker did not suggest that he had emptied the mug. His evidence was that he could not say. I infer from all the evidence that the mug used on this occasion was not empty and in fact, contained a substantial amount of fat. The fat caught fire and was bubbling over the edge of the mug after about 10-15 minutes of cooking. There was evidence of other occasions of cooking, and the amount of fat that was collected on those occasions generally supports this finding. There was evidence that after cooking sausages for about 60 people, the mug that was used would be discarded and that after other occasions of cooking, about a third of a Boags can of fat would have accumulated.
The defendant objected to this finding of fact being made for the reason that it was not a pleaded fact that the mug had not been emptied before the plaintiff started to cook. It was submitted that instead, the particulars of negligence provide that the overflow was caused by a large amount of fatty meat. I conclude to the contrary, the particulars are wide enough to capture the conduct of failing to empty the mug. Particular 8(d) provides that "the fat runoff collection system was inadequate and unsafe" and that the defendant "permitted the fat runoff to overflow and catch fire". Given the uncontested observations of the plaintiff that after 10-15 minutes of cooking, the mug overflowed and caught fire, and the evidence from Mr Barker that he set the barbeque up and he did not suggest he replaced the mug, my conclusion is that the mug had not been emptied or replaced before it was used on this occasion.

Findings of fact

It is worthwhile highlighting the facts that were not challenged that are central to findings of liability in this case. The plaintiff was provided with a barbeque that was lit and ready for use. He was not told about the ceramic mug and the method used to collect fat. The method involving the mug was completely flawed. It was in very close proximity to the burners and the top of the mug was above the height of the burners. If it filled with fat and overflowed it was highly likely that it would catch fire. The plaintiff was not instructed what to do in the event of a fire. As mentioned, the uncontroversial facts ground an inference that the mug had not been emptied prior to use. Removing the mug was difficult and awkward due to the turned-up edges of the tray.
If someone tried to remove the full cup of fat on fire from its position there was a high probability of the individual sustaining a serious burn.
The regular users of the barbeque and committee members who had previously held the role of barbequing were aware of the ceramic mug method and there was knowledge that other similar methods to collect the fat had been used. These methods involved the use of an empty receptacle every time the barbeque was used. This was an obvious and essential precaution. There was a general awareness by those who regularly used the barbeque that there was to be a fresh empty vessel for fat collection before every use. There was the direction in black marker on the lid in the shed, and there was the practice of members that demonstrates that awareness. However, when new volunteers were allocated the task, this knowledge was not passed onto them. The lid stayed in the shed and was not pointed out to them, and the fat collection system using a mug was also not pointed out to them. The fat collection set up was not what would be anticipated by anyone with a general familiarity of gas barbeques. It was counterintuitive that the set up was a ceramic mug in close proximity to the burners on a tray with two winged corners.
In addition to these uncontroversial facts, as I have said, I largely accept the plaintiff's evidence of his observations of the fire, the extent of it, and his reasons for acting as he did.
In relation to the critical moments before his injury, the facts as I find them to be are as follows. I find that when the plaintiff looked under the plate for the first time, he observed the cup on an angle, with fat bubbling over and on fire. He looked for just a few seconds. His attention was focused on the dramatic aspects of the situation: the fire, the fat bubbling over and flames dripping down onto the butchers' paper. He was alarmed by what he saw and was concerned about the fire and the prospect of the mug exploding. He did not notice the turned-up corners of the tray. I note that if a mug is angled and leaning against the burners, it is not sitting in the corners of the tray and the turned-up corners are not as obvious as if the mug is sitting flat. He asked for a cloth and Paul Marshall said there was not time. Mr Marshall unravelled the paper towel for the plaintiff. The plaintiff wrapped his hand in paper towel and leant down a second time, this time to retrieve the mug. He touched the handle quickly to see how hot it was. The tray was relatively close to the edge of the barbeque so that he did not have to lean in under the barbeque. As he reached in, his hand wrapped in paper towel likely obscured some of his view. He did not realise that the turned up corners of the tray were there and would hinder retrieving the mug. He did not lift the mug but moved it out directly, it caught on the corner or corners and spilled. At one point of his evidence he described wiggling it out. However, whether he simply anticipated that because it was on an angle it may be jammed against the burners, and he anticipated needing to free it in this way, or whether he did in fact need to, before the mug caught on the corner or corners of the tray, I do not make a finding on that point.
As previously noted, one of the principal challenges to the plaintiff's case is that his reaction to try and remove the mug was not sensible or the obvious response.
However, I am satisfied that it was a natural reaction to try and remove the receptacle from the tray. It was a natural reaction to remove the fire away from the barbeque, the gas bottle and hose, and for the mug to be moved away from the underneath of the barbeque in order to put out the fire.
A person placed in the situation that the plaintiff was placed in was under pressure. This was not only the plaintiff's perspective, but also Mr Marshall's perspective. When the plaintiff asked him to get a cloth, he replied that there was not time. The rate at which he spun out the paper towel also speaks of time pressure.
The plaintiff had not been informed of the ceramic mug method of collecting fat and the risk of fire, what to do if confronted with the ceramic mug on fire under the barbeque and had not been informed about the fire extinguishers inside the clubrooms.
Clearing the area of people would undoubtedly have been a sensible response to avoid the risk of harm to others. However, even if that had been done, a person in the plaintiff's situation would have remained concerned about the fire, and the possibility of it spreading. Additionally, I accept that the plaintiff was concerned about the prospect of the ceramic mug exploding or falling out and smashing. That is an additional concern that some other people would reasonably share. A natural, sensible inclination was to want to remove the fire source from under the barbeque so that it could be easily extinguished. It was a situation where it seemed to the plaintiff, and also to others in his position, that acting decisively to remove the mug and then dealing with the fire would effectively remove the risk to others. The defendant highlighted in cross-examination that if the plaintiff was correct, the mug could explode at any moment and there was therefore, at any moment, a risk to the plaintiff. However, this point is a two edged sword for the defendant, it gave rise to a need to act immediately and not delay.
I accept that there were three fire extinguishers inside the clubrooms at the time of the plaintiff's injury. However, the plaintiff was not aware of these and they were not obviously placed. Mr Lynch used to go into the kitchen all the time and he had not seen a fire extinguisher. Mr Marshall had helped Mr Barker prepare the sausages and set up the trolley, but he was unaware of any fire extinguishers at the Club.

Duty of care

The defendant admits it owed a common law duty to the plaintiff to take reasonable care for his safety while he was carrying out the barbequing activity. It is acknowledged that as a volunteer he was carrying out the barbequing activity at its premises at the request of the defendant and for its benefit.
It is also admitted by the defendant that as a volunteer for the defendant, the plaintiff was a "worker" as defined under s 7(1) of the Work Health and Safety Act 2012. The defendant admits that it owed a statutory duty to the plaintiff under s 19 of the Act to ensure, so far as was reasonably practicable, the health and safety of the plaintiff while carrying out the barbecuing activity. Section 18 defines "reasonably practicable" in this context:
"18 What is reasonably practicable in ensuring health and safety
In this Act —
reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including —
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about —
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
The duty that the defendant has to the plaintiff, includes to ensure the following, so far as is reasonably practicable:
"19(3) …—
(a)the provision and maintenance of a work environment without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling and storage of plant, structures and substances; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."

Breach of duty of care

Section 11 of the Civil Liability Act 2002 sets out three essential preconditions to a determination of whether a person has breached a duty to take care:
"11 General principles
(1) A person does not breach a duty to take reasonable care unless —
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk."
In relation to whether there was a foreseeable risk of harm, it is not necessary that the precise set of events which produces the harm be envisaged. The plaintiff does not need to prove that the precise manner in which his injury was sustained was foreseeable: Chapman v Hearse (1961) 106 CLR 112.
In deciding whether a reasonable person would have taken precautions against the risk of harm, a court is to consider a non-exhaustive but mandatory list of factors: the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the potential net benefit of the activity that exposes others to the risk of harm (s 11(2)).
In considering the burden of taking precautions to avoid the risk of harm, the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible (s 11(3)).
The reasonable response to the risk and the considerations in s 11(2) of the Act must be assessed prospectively and not with the wisdom of hindsight: Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422 at 461-463; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48, 239 CLR 420 at [31]; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42, 234 CLR 330 at [18] per Gummow J.
Central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of risk: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCCA 320, 91 NSWLR 752 at [102] per Leeming JA.
It is essential for a court to identify the risk of harm. It is only by correct identification of risk that the court can proceed to assess what a reasonable response to that risk may be: Dederer at [59] per Gummow J. The difficulty is in formulating the risk of harm and the level of abstraction or particularity with which the harm is to be defined: Uniting Church at [108] and [117]. It must be a risk which materialised when the plaintiff suffered injury.
The risk is not to be confined to the precise circumstances which are alleged to have occurred, although it must encompass those circumstances: Uniting Church per Leeming JA at [118].
There may be a range of appropriate formulations of the risk involving greater or less generality: Uniting Church at [119]. However, it is important to achieve the correct level of generality or particularity so that it is possible to assess what a reasonable response to that risk would be: Dederer at [59].
In Erickson v Bagley [2015] VSCA 220 at [33] and in Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55], the Victorian Court of Appeal said, "Necessarily the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred."
The principles are conveniently stated in Erickson v Bagley (above) in the judgment of Kyrou and Kaye JJA at [33]:
"As with the common law, in defining the content of the duty of care, the section focuses on the identification of the risk, its foreseeability, the probability of the risk, and the reasonableness of precautions which are alleged to be required to address that risk. Thus, the first step in the analysis requires the appropriate identification of the risk against which it is alleged that a particular defendant failed to exercise reasonable care. Commonly, the proper identification of the risk can be difficult, if not problematic. Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, the risk, referred to in s 48, is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well established that, in order that a defendant be held to be negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances, in which the plaintiff was injured, might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred." [Footnotes omitted.]
With these principles in mind, the risk of harm may properly be characterised as follows: the risk of a person suffering a burn injury caused by them removing or trying to remove the ceramic mug from the tray under the barbeque when it was full of fat and on fire. This is not the only appropriate characterisation of the risk of harm, and it can be characterised at a greater or lesser degree of abstraction. There are circumstances that may be properly taken into account, including those that bear on the prospect of the mug catching alight, such as the mug had not been emptied or replaced since it was last used and the height of the mug above the burners and its proximity to the burners. There are other circumstances such as the incident occurring at a function when there are a large group of people including children nearby, and that the individual had no prior knowledge of the method of fat collection being used. There are circumstances which bear on the risk of spillage which may also be taken into account such as the configuration of the tray and that the mug was awkward to remove.

Has the defendant breached its duty of care?

In terms of s 11(2)(a) and the probability that the harm would occur if care were not taken, I see the risk of harm as significant. There was a high likelihood of the fat in the mug catching fire if the fat overflowed, and there was a high prospect of an overflow given that an empty mug was not used on the date in question.
A contentious issue is the prospect that individuals in the plaintiff's position would try and remove the ceramic mug. The defendant argues that this is not a reasonable or rational response. However, I see this as a relatively likely response. The plaintiff held the belief that the mug may explode and that would pose a risk to people present and a risk to property. It was not suggested that the risk of explosion was an irrational belief. The risk of harm to people was realistic, notwithstanding that the barbeque would to some extent shield people from the ceramic debris and boiling fat. Others in the plaintiff's positon may share that belief and concern. Even if someone did not have that belief they may still attempt to remove the mug given the particular circumstances including the presence of a large number of people and the element of surprise, unfamiliarity with the barbeque, and a sense of urgency.
In terms of the other s 11(2) considerations, it is conceded that any harm caused is likely to be serious.
The burden of taking precautions was minimal. Any financial burden was negligible. An alternative system of fat collection was put in place after the plaintiff's accident, and is illustrative of appropriate responses to avoid the risk of harm. While the existence of this alternative does not affect liability (s 12), it is illustrative of the simple and obvious alternatives available. The precaution should have been taken of using a suitable fat collection container of appropriate dimensions for the position it was to be placed in. Other precautions include ensuring that the fat collection container was emptied before each use and instructing volunteers to ensure this was done. There should have been provision of suitable equipment such as an oven mitt and instructions as to what to do in the event of a fat fire such as to turn off the gas, clear people away, use the fire extinguisher or fire blanket to extinguish any continuing fire, and not to attempt to remove the fat container. The time and effort involved in taking these precautions would not have impacted upon other burdens that the Club had to avoid similar risks of harm for which the Club may be responsible.
In relation to s 11(2)(d), while there was potential net benefit to the community and to the Club of the activity engaged in of running the barefoot bowls evening and the barbeque, those who benefited from the activity could do so, without the risk of harm.
I find the Club breached its duty and ought to have used a safe system for fat collection. This could have been the system used by Mr Lynch and Mr Marshall involving the empty Boags beer can positioned on the wire rack, or the bucket of sand method. If this system had been used, there would have been no need to move the receptacle and any fire in the receptacle could have been easily smothered and extinguished. The mug was an unsuitable container given its height so that it was at a level above the burners and any fat overflow would likely come in contact with the gas flames, and which also meant that it was difficult to manoeuvre out and away from the tray. In the case of a shorter vessel, a greater clearance between the top of the vessel and the plate would have been evident and the vessel could be easily lifted up and away from the tray.Also, the handle of the mug was not a long saucepan handle like the drip can, and was another factor adding to its unsuitability for fat collection.
The Club breached its duty by failing to ensure that a suitable container, placed in a safe position was used, and that the receptacle was empty before it was used. It failed to provide adequate instructions in this regard to the volunteers working on the barbeque and people responsible for setting it up. The Club ought to have made provision for a fat fire by providing an oven mitt or heat proof gloves as part of the cooking equipment. Further, the Club failed to provide adequate instructions in the case of a fat fire, such as the need to clear people away, information about the location of the fire extinguishers and fire blanket, and the use of those to extinguish any fire continuing after the gas had been turned off, and an instruction not to attempt to move the fat container.

Causation

Section 13(1) of the Civil Liability Act provides that the prerequisites for a decision that a breach of duty caused particular harm are:
1 The breach of duty was a necessary element of the occurrence of the harm ("factual causation").
2 It is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ("scope of liability").
It is not in contention that it is appropriate that the scope of the Club's liability extend to the entirety of the harm the plaintiff has suffered.
Section 14 provides that in deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact on which the plaintiff wishes to rely relevant to the issue of causation.
Section 13(1) imports a "but for" test: Badenach v Calvert [2016] HCA 18, 257 CLR 440; Strong v Woolworths Ltd [2012] HCA 5, 246 CLR 182 at [18] per French CJ, Gummow, Crennan and Bell JJ. The plaintiff must prove, on the balance of probabilities, that but for the Club's breach of duty, the harm would not have eventuated.
A necessary condition is a condition that must be present for the occurrence of the harm. In Strong v Woolworths at [20], the judgment of the plurality noted that there may be more than one set of conditions necessary for the occurrence of particular harm, and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within the section.
Under s 13(3) it is relevant in deciding factual causation to decide what the person who suffered the harm would have done if the person who was in breach of the duty had not been so in breach. The matter is to be decided subjectively in light of all the relevant circumstances.
My conclusions as to causation are as follows. If not for the Club's breach of duty, an empty container would have been used to collect the fat before the plaintiff started cooking and it is probable that there would not have been a fat fire and the plaintiff would not have been injured. I am satisfied on the balance of probabilities that if that had been used, the fat in the container would not have caught on fire. That finding alone is sufficient to establish causation. If a container had been placed on the bottom wire rack it is highly unlikely that it would have caught fire because it was nowhere near the gas burners and if it had, there would not have been an injury because it would not have been necessary to move it. The container could have been left in place and the flames easily extinguished. If it had been moved, moving it would not have been awkward and I am satisfied, on the balance of probabilities that it would not have resulted in injury. If a container of a suitable height had been used and placed on the tray then while there may have been an overflow it is less likely that the fat would have caught alight. If the container had had a suitable long handle, it is probable that boiling fat would not have spilt on the plaintiff's hand. If the plaintiff had been provided with a mitt or a heat resistant cloth at the barbeque, then I am satisfied he would have used them, rather than the paper towel wrapped around his hand. He contemplated going to the kitchen to get a cloth but decided against it because he thought there was not enough time. If he had used a mitt or glove, it is probable he would not have sustained the burns.
If he had been instructed not to remove the mug or fat container, I am satisfied he would have followed that instruction. If instructed that, in the event of a fire, he was to evacuate the area then I am satisfied on the balance of probabilities that he would have followed that instruction too. If he had been told about the location of the fire extinguishers and fire blanket inside the clubrooms, he may have used them or had them nearby. His use of these items would turn on the instructions he was given in other respects. For example, if instructed to clear people from the area, he would have done so, and may then have thought the situation required less immediate attention, and simply had an extinguisher and blanket at the ready.
The following particulars of negligence and breach of statutory duty in the statement of claim have been established:
"8        In breach of its duty referred to in paragraph 7A above and of its statutory duty referred to in paragraph 7B above, the Defendant failed to take reasonable care for the health and safety of the Plaintiff while carrying out the barbecuing activity.
PARTICULARS OF NEGLIGENCE OR BREACH OF DUTY OF THE DEFENDANT, ITS EMPLOYEES OF AGENTS:
(a)       Failing to provide the Plaintiff with sufficient and safe barbeque equipment for the task which he was required to carry out;
(b)       Failing to provide adequate safety equipment, protective gear and fire safety equipment to enable him to carry out the required barbeque operations in safety;
(c)       Failing to provide him with barbeque equipment which had a fat runoff collection system that was adequate for barbequing a large amount of fatty meat in safety and would not permit the fat runoff to catch fire;
(d)       Requiring him to use barbeque equipment to cook a large amount of fatty food when its fat runoff collection system was inadequate and unsafe for that purpose and permitted the fat runoff to overflow and catch fire;
(e)       Failing to provide adequate instruction in the use of the equipment he was required to use for as well as adequate instruction in fire prevention and extinguishing."
Other particulars are alleged and have been established but need not be set out as they are very similar or just cast in more specific terms.
I should note for completeness that there are allegations of "further negligence" set out at par 9 of the statement of claim to the effect that the plaintiff's injuries were exacerbated by the further negligence of the defendant, its employees or agents:
"(i)Failing to have on hand or provide to the Plaintiff any adequate first aid, medical assistance or pharmaceutical supplies to treat his injuries at the first available opportunity;
(ii)Failing to call an ambulance or transport him to hospital for emergency medical assistance immediately after his injuries."
These particulars have not been pressed by the plaintiff. Essentially, the evidence in the plaintiff's case did not extend to these particulars. There was evidence relating to these particulars led on behalf of the defendant such as Mr Barker providing a tube of burn cream to the plaintiff from a first aid kit that was kept at the clubrooms in plain sight and that he tried to call a "first response unit". This evidence was not disputed in cross-examination. There was no medical evidence led on behalf of the plaintiff that delay or a failure to administer certain first aid treatment exacerbated the plaintiff's injuries.

Contributory negligence

The defendant pleads that the injuries sustained by the plaintiff were caused or contributed to by his own negligence. This defence is available to a breach of statutory duty as well as to findings of negligence: Wrongs Act 1954, s 2. See also, Piro v W Foster & Company Ltd (1943) 68 CLR 313.
The particulars are:
"Further or in the alternative, the defendant says that if the plaintiff was injured as alleged in the statement of claim, which is not admitted by the defendant, then any injuries suffered by the plaintiff were caused or contributed to by his own negligence:
PARTICULARS OF CONTRIBUTORY NEGLIGENCE
(a)Failing to empty the fat runoff container before using the barbeque.
(b)In failing to adhere to the warning sign on the lid of the barbeque lid which states 'empty fat container' before using the barbeque.
(c)Pouring oil onto the barbeque plate before barbequing instead of using a light oil spray from a pressure pack can, or similar quantity of oil.
(d)Attempting to remove the fat runoff container under the barbeque when the liquid was overflowing.
(e)Failing to turn the barbeque off and allow the fat to cool before attempting to remove the fat runoff container.
(f)In failing to seek assistance when the fat runoff container commenced to overflow.
(g)Having used the barbeque on a number of previous occasions, the plaintiff would have been aware of the sign on the barbeque lid, and the consequences of not adhering to it, in not emptying the fat runoff container before using the barbeque."
I note that particulars (b), (c) and (g) are not pressed. There is no evidence that the plaintiff was aware of the "sign" on the barbeque lid and there is no evidence that he poured oil on to the barbeque plate. The defendant does not contend to the contrary. Further the contention at (e) that the plaintiff failed to turn the barbeque off is not pressed, no doubt in light of the evidence that he did turn the gas off. I do not understand the defendant's position to be that the plaintiff should have emptied the mug beforehand as alleged in (a). Indeed, there is no dispute that the plaintiff was unaware of the existence of the mug before the fire.
Section 23(1) of the Civil Liability Act provides that the principles that are applicable in determining whether a person has been negligent also apply in determining whether a person has been contributorily negligent for the purpose of apportioning liability under s 4 of the Wrongs Act. Section 23(2) provides:
"23(2) For the purpose of apportioning liability under section 4 of the Wrongs Act 1954 —
(a)the standard of care required of the person who suffered harm is that required of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time."
Therefore the question is whether the plaintiff's conduct posed a significant risk of harm such that a reasonable person in the plaintiff's positon would have taken precautions against the risk. What is reasonable care depends on the circumstances of the case: Astley v Austrust Ltd [1999] HCA 6, 197 CLR 1.
Section 4(1) of the Wrongs Act provides for the damages to "be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage".
Here, the plaintiff was confronted with a situation of urgency. His conduct is to be judged by reference to the exigencies of the moment: Caterson v Commissioner for Railways (1972) 128 CLR 99 at 111-2 per Gibbs J; Vos v Hawkswell [2010] QCA 92.
The defendant was responsible for creating a situation that was fraught with risk and danger. Then having placed the plaintiff in that situation, the defendant failed in its duty in multiple respects so that the plaintiff was extremely poorly equipped to handle the situation. He was not informed at all about the risk and how best to respond. From the plaintiff's perspective, the situation was entirely unexpected and what would seem to be the sensible response instinctively, i.e., to remove the flaming receptacle from the barbeque, was in fact fraught with risk. Some of that risk was apparent to the plaintiff. A reasonable person could see that there was a risk of spillage from the mug. However that was not the risk that eventuated, resulting in harm. The risk that eventuated was the difficulty of extracting the mug from its tray due to the turned up corners of the tray. That was not evident to the plaintiff, but it could have been if he had taken steps to look more closely. However, he did not make those observations because, as I find, due to the urgency of the situation and his focus on the dramatic aspects of the scene. I note too, the turned up corners of the tray were less obvious because the mug was tipped on an angle and not squarely sitting in the corners of the tray.
Due allowance must be made for the unusual situation in which the plaintiff found himself: Vos v Hawkswell (above).
The plaintiff misjudged the situation, he failed to make observations which could have been made. He did not note the turned up corners of the tray. His evidence was "I knew I could get it out safely and put it on the ground without burning". He failed to observe the configuration of the tray as a potential obstacle in removing the mug. Was his failure to observe, or the assumptions he made that there would be no hindrance in removing the mug negligent in the circumstances, or was it mere inadvertence? Did he fail to act reasonably in the dangerous situation created by the defendant's wrong-doing? As I have said, his behaviour must be judged by reference to the exigencies of the moment. In judging his failure to observe the turned-up corners of the tray as he acted to remove the mug, I find that his observations were limited to a degree by the paper towel wrapped around his hand. He was aware that he had not looked closely at the mug and its surrounds. He gave evidence that before he tried to retrieve it he looked at it for just a few seconds. I note too the mug was high under the barbeque plate and there could have been obstructions, other than the corners of the tray. He thought the mug was jammed and either wriggled it or was anticipating that he would need to free it from being jammed. Either way, he was expecting some resistance and hindrance. This could have resulted in a spillage or splash. I find his state of mind that "I knew I could get it out safely" was merely a reference to the temperature of the handle or was an assumption, impulsively reached. Any protection offered by the paper towel was only against the temperature of the handle, not a spillage. I accept in his favour that it is counterintuitive that a container that is difficult to extract would be chosen as the means of fat collection. The defendant has satisfied me on the balance of probabilities, that in the circumstances, the plaintiff's conduct, in particular, his attempt to retrieve the mug without taking stock and observing the surrounds of the mug and the tray amounted to negligence. The plaintiff failed to take reasonable care for his own safety. In this regard, there was negligence by the plaintiff in his attempt to remove the fat runoff container as alleged in 11(d).
I am not satisfied that the plaintiff was negligent as alleged in (e) in failing to allow the fat to cool before attempting to remove the container. His decision to act decisively and to try and resolve the situation before the fat had cooled was not negligent for the reasons I have given. Similarly, and for the same reasons, I am also not satisfied that the plaintiff was negligent as alleged in (f) in failing to seek assistance.
I regard a just and equitable apportionment for the plaintiff’s negligence as being 15%. The plaintiff was in an unexpected situation of danger, and he took the path of the lesser of two evils. His haste in seeking to resolve the situation of danger and protect others was understandable given the exigencies of the situation but there was a failure to pause and make observations in his attempt to remove the mug and it was that failure that amounts to negligence. Contrasted to the defendant's negligence, his breach was not significant. The defendant's negligence represents a gross departure from the standard of the reasonable person while the plaintiff's negligence arose when he was seeking, in difficult and pressing circumstances, to resolve a hazardous situation created by the defendant.

The plaintiff's hand condition is now static and the surgeons do not expect further improvement. However, I note there is agreement by the medical experts in this case with the general proposition that pain levels are affected by psychological symptoms, and treatment in that regard can positively affect pain. In the event that the plaintiff's depressive condition improves, so too will his pain and his coping capacity. The plaintiff's physical pain and impairment and his psychological condition are "bi-directional", to quote Mr de Jong. The down side is that if the plaintiff's hand does not fully recover, and he continues to suffer physical pain and impairment, his psychological condition will consequently suffer.

Consequential mental harm

There are a number of issues that arise in relation to the plaintiff's depression and anxiety and alcohol use disorder. It can be seen that while the experts are not in agreement about the diagnosis or diagnoses that apply, they are agreed that the plaintiff's mental harm, the development of his psychological condition or conditions, resulted from his hand injury. The evidence is overwhelming that the plaintiff would not have suffered the mental harm but for the defendant's negligence and that the accident was a necessary condition for the development of his psychological condition.
Initially, there was an issue as to whether the defendant is liable for the plaintiff's alcohol use disorder, or whether the disorder fell outside the defendant's scope of liability, Civil Liability Act, s 13(1)(b). However, recognition was taken by the defendant that s 34 of the Act imposes a test of whether a reasonable person in the position of the defendant ought to have foreseen that a person of normal fortitude "might", in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The circumstances of the case include the nature and extent of personal injury suffered by the plaintiff: s 34(3). Clearly, the threshold is low: "might" suffer a recognised psychiatric illness. Here the test for reasonable foreseeability is the Wyong Shire Council v Shirt test which does not exclude a risk which is remote in the sense that it is extremely unlikely to occur, providing it is not fanciful or far-fetched: Anwar v Mondello Farms [2015] SASCFC 109, 123 SASR 321 per Gray J at [19] and per Stanley J at [95] and [106]. The test does not require the reasonable person in the defendant's position to have foreseen the specific psychiatric illness suffered, but rather any psychiatric illness: Anwar v Mordello Farms [94] and [107] per Stanley J. Undoubtedly, the test is satisfied in this case and the plaintiff's mental harm, including his alcohol use disorder, falls within the defendant's scope of liability.
There is a significant issue as to whether the plaintiff suffers from an alcohol use disorder or whether he suffers from a major depressive illness as a separate condition. In this regard, there is a difference in the opinions of Dr Sale on the one hand, and Dr White and Mr de Jong on the other. I find the difference entirely explicable by reference to the professional perspective they brought to their diagnoses. Dr Sale saw the plaintiff on a single occasion at a time when his alcohol abuse disorder was entrenched, and, given that the symptoms of that disorder are depressive in nature, it had a confounding effect in terms of ascertaining an underlying depressive condition. It is completely unsurprising that he found it difficult to make a diagnosis of major depression. His alcohol consumption at that time would account for his depressive symptoms. He acknowledged that factors such as whether there was a delay in the onset of the alcohol disorder subsequent to symptoms of anxiety and depression, and whether there was any improvement after four weeks of abstinence, were significant. These factors were borne out by the evidence of the plaintiff which I have accepted.
The plaintiff described mentally struggling for a couple of months before he began drinking heavily. Mr de Jong started seeing the plaintiff because of his depression and anxiety. These were then the pressing symptoms, assessed as severe, and are known psychological sequelae of this sort of physical injury. That first consultation when the depression and anxiety symptoms were the prominent concern, was some six months after the plaintiff's injury. His alcohol use was then a problem, assessed as high risk, but it became much worse over time. As noted, in Mr de Jong's opinion, the plaintiff's depression and anxiety are primary conditions and his alcohol abuse was secondary. The plaintiff's alcohol use was principally an attempt to try and control his anxiety.
As noted, the plaintiff described feeling worse psychologically after his four week period of abstinence.
The evidence given by Mr de Jong provided reliable and comprehensive insight regarding the plaintiff's condition. He has seen the plaintiff 43 times on a regular basis from May 2016. He has seen the fluctuations in his symptoms. He has assessed the physical injury as having a profound effect arising from the "collapse of his identity". The masculine values emphasising work, hardiness and self-reliance ascribed to the plaintiff by Mr de Jong are demonstrated in the plaintiff's evidence.
I note that Dr White's opinion with respect to the plaintiff's alcohol consumption is that it has increased over time as a way of coping, to the point where he has now developed an alcohol use disorder. Evidently, the alcohol use disorder is considered to be a secondary condition as a way of coping with his psychological symptoms of depression. This accords with the chronology of the development of symptoms and Mr de Jong's evidence and testing. I find that the plaintiff resorted to alcohol as a way of coping with his psychological condition, and his increasing dependence on alcohol occurred in the context of an exacerbation of his psychological symptoms.
I accept the evidence of Dr White and Mr de Jong that the plaintiff's alcohol dependence is a secondary condition, separate to his condition of Major Depression. This has implications for his prognosis.
The plaintiff's psychological condition is tied to his physical pain and incapacity. As noted, I have found that it is most unlikely that this physical condition will improve. I accept Mr de Jong's opinion for the reasons he gave that the plaintiff's psychological condition will not resolve. These co-morbid conditions will persist, although there will be "episodes where he will muster his resources and recover or improve to some extent."
I accept Dr White's opinion that, with respect to the plaintiff's alcohol use disorder, the prognosis is poor. His depth of experience and expertise bearing on this opinion was not in question. Dr White noted that the prognosis is poor particularly with a long-standing condition that has not been responsive to treatment, and an attempt at detoxification has failed, as is the case here. There is the prospect of improvement with an intensive treatment program and detoxification program.
I found Dr Stewart's opinion regarding the plaintiff's alcohol use disorder was based on false assumptions. His opinion that the plaintiff's capacity for rehabilitation was entirely dependent on himself and the choices he made, was superficial and simplistic. It did not touch on the plaintiff's psychological condition and the difficulty the plaintiff has had in adjusting to his new circumstances. I reject Dr Stewart's opinion with regard to the plaintiff's alcohol use disorder. I should note that the plaintiff would need to decide to recover before that was possible. However, that is just the beginning, and whether he does successfully recover, whether he has episodes of recovery, or whether he remains dependent, cannot be determined with any kind of certainty.
I note Mr de Jong assesses the plaintiff's chances of recovering from his alcohol use disorder as 50/50 with as much chance that he will deteriorate as he will improve.
There are factors that will work to improve his psychological condition and alcohol use disorder. The reduction of stressors is one, including the resolution of this litigation. I note Dr Hyde's opinion that the plaintiff is unable to move forward positively with his recovery until his litigation has been completed. While I accept this, in my view some of the defendant's experts were inclined to place too much weight on this. The plaintiff will still be left with the major stressor of his pain and incapacity and the loss of his vocational identity. The resolution of this court case will certainly assist but, doing the best I can to prognosticate according to the evidence, I regard this matter as important to the improvement in his condition but that it will not have the significant effect that is hoped for, particularly long term.
The most important factor in optimising the plaintiff's chances of improvement in his condition is treatment. I have mentioned the robust treatment recommendations made by Dr White. Mr de Jong also recommends treatment to address his anxiety and depression. Mr de Jong stated that this would be offered in the hope that it would help him to adjust to a life without the meaningful work that he did before, and to learn to accept his circumstances. While I find that the plaintiff will co-operate with this counselling and endeavour to get well, whether he has the psychological resources ultimately to adjust, remain to be seen. Having a sound work ethic and being someone who is hardy, may not be enough.
If he becomes well enough, a return to some meaningful employment would contribute to an improvement in his psychological condition, with implications for his pain and his alcohol use disorder. The chances of him returning to work that he values draw in external considerations which I will return to in the context of assessing future economic loss.
An issue was raised by the defendant as to whether the plaintiff has taken the steps he should have taken to resolve his alcohol abuse disorder and whether he has failed to mitigate his loss. Here, there is a particular focus on the fact that after the plaintiff was discharged from the detoxification program he started drinking again, and that he was not "committed" to abstinence. I find that there are no steps which he could reasonably have taken that he did not take. His alcohol use disorder is a co-morbid condition tied to his anxiety and depression. I find that he was very unwell psychologically, and there is no suggestion that I can see in the evidence that he was not doing his best to address his addiction. He was following the recommendations of his general practitioner and treating psychologist. Before he participated in the detoxification program he was assessed as compliant and willing to participate. He achieved some success. He was able to reduce his drinking as a consequence of his involvement.
The defendant argued that, according to the evidence of Dr White, it can be seen that the plaintiff's life will likely be shortened as a consequence of his heavy consumption of alcohol. It was suggested that Dr White's evidence was that his life expectancy was 10 years. To the contrary, Dr White's evidence was that the plaintiff's life expectancy would be shortened if his heavy consumption of alcohol continued but by up to 10 years, and he could expect to have problems in his 60s. It is evident from the evidence of Dr White, referred to above at [261], that he was not suggesting the plaintiff only had a life expectancy of no more than 10 years. The impact referred to by Dr White will not impinge on the time period when the plaintiff would have been working, and so does not impact on his future wage loss.

Past medical and associated expenses

There is agreement in relation to medical expenses, pharmacy expenses and travelling expenses. It is admitted by the defendant that expenses in the sum of $10,611.90 were reasonably incurred in respect of the injuries, the subject of this claim, and that in relation to each expense the amount is reasonable.
There is a dispute in relation to the expense associated with the carpal tunnel surgery undertaken by Dr Kode. The defendant admits that the expense of $1,481 was incurred by the plaintiff and that the amount of the expense is reasonable, but does not admit that it is causally related to the plaintiff's accident.
I note the evidence of the plaintiff that the referral was recommended by his treating physiotherapist at the Launceston General Hospital. Dr Kode recommended surgery. The evidence now demonstrates that in fact the plaintiff did not have a carpal tunnel injury. Indeed he received no real benefit from the surgery except in relation to restoring perspiration ability.
The cost of surgery is compensable, notwithstanding it did not lead to any material improvement in his condition. It was undergone in the reasonable hope that it would discover the cause of his symptoms, or some of his symptoms resulting from the injury sustained, and that it would lead to the alleviation of his pain and incapacity.
Special damages are assessed in the sum of $12,092.90.

Economic Loss

Past loss of earnings

If not for his hand injury, the plaintiff would have taken up employment with Baytech Trades Pty Ltd. The plaintiff has been wholly incapacitated for work since his injury.
The plaintiff's total employment package, including superannuation, would have been $105,000 per annum from commencement in November 2015. His gross weekly salary, excluding superannuation but including leave loading, would have been $1,846 per week. Tax per week is $451 in the financial year 2015-2016, and $445 per week in subsequent years. He would have earned $1,395 nett per week in the first financial year, $1,401 nett per week in the subsequent two financial years, and $1,404 nett per week thereafter.
From 23 November 2015 to 1 December 2019, he would have earned a total of $292,845 nett. From 1 December 2019 to today, he would have earned $54,756.
He would have received superannuation contributions of $8,998.96 per annum, $173 nett per week, a total of $42,904.
Baytech was to provide and arrange a lease of a vehicle as part of his employment benefits, as well as a telephone and computer. The lease of a Ford Ranger had been arranged. These additional benefits are valued at $479 per week. The defendant has highlighted that there is no evidence that he was entitled to use the vehicle for other than work purposes. I note there is no evidence that the telephone and computer were for private use. Assuming the vehicle was for private use, it was also pointed out that there was no evidence of the value of the use of the vehicle, such as the cost of maintaining a vehicle.
Clearly, the lease of the vehicle was part of his salary package. I infer this was not to be a vehicle for work purposes only. In the absence of evidence I assume that the cost of the lease (annual cost $13,062.48) represents approximately the monetary value of this benefit to the plaintiff. I allow the amount of $251 per week. I decline to allow for the benefits of the telephone and the computer. The benefit of the leased vehicle since 23 November 2015 to today is allowed in the sum of $62,248.
I find that it is likely the plaintiff would have exploited his earning capacity further through his high voltage testing work through D & D Investments Pty Ltd. This was work he could undertake on a flexible basis when he was available. He carried out that work in the 2013/2014 and 2014/2015 financial years. He had more time for that work in those years because he was working for Skilled "on the tools" on a part-time basis. The income he earned in those years from D & D Investments Pty Ltd is not representative of what he would have earned from that source when working for Baytech. Ascertaining what he might have earned with D & D Investments Pty Ltd is entirely speculative. Perhaps half the income he received in the financial years 2014/2015 which was $12,000 would be the sort of amount that might be anticipated. I note that in that financial year his income from Skilled was $22,463.
His employment contract with Baytech provided for a salary review and adjustment conducted annually by 1 July each year based on considerations such as productivity and performance, but also subject to factors such as market trends and company performance.
The best approach is to regard these two prospects of additional income as positive contingencies.
The defendant contends a reduction for negative contingencies at 30% is appropriate, the same as identified by the defendant for future economic loss. I will address the negative contingencies in the context of future economic loss. For now, it can be said with certainty that such a reduction for past wage loss is not reasonable. The negative contingencies identified, such as previous health issues, would amount to no more than a slight possibility of emerging to impact on his earning capacity in this relatively short period from the time of his accident until today. The plaintiff was in general good physical and psychological health at the time of his accident. If I was to make an allowance for negative contingencies for this period it would give rise to a reduction of no more than 5%. For the past period from the date of accident until today, the prospect of additional income as a positive contingency neutralises any negative contingencies.
I assess past wage loss in the sum of $452,753.

Future loss of earnings

I find that work as a fitter and turner will be out of the question given his physical condition. He lacks the grip strength required and the skin on his hand cuts easily. In order to undertake work with his company D & D Investments, he needs to pass the induction process on Aurora sites. As someone with a pre-existing hand injury, the prospect is that he would not be cleared. Mr Waller is the Managing Director of Complete Workforce Solutions Pty Ltd and gave evidence which I accept. It is consistent with the plaintiff's evidence with regard to these matters which I also accept. This company is one of the largest labour hire companies in Tasmania. His evidence provided an accurate picture of the realities of work sites and the procedures in place. A comprehensive medical questionnaire must be completed by the prospective employee. Employers are risk averse in relation to pre-existing injuries as a consequence of potential workers compensation liability and the pressure brought to bear by insurers not to take on the risk of a worker suffering an aggravation of a pre-existing injury. I accept that if the plaintiff disclosed his hand injury he would have no realistic prospect of being employed as a fitter and turner.
I accept the plaintiff's evidence that his prospects of obtaining work as a business development manager, or in a managerial role hiring staff such as with Baytech, would also be minimal given his condition. The procedures in place for entry to work sites involve an induction process, and require a medical clearance which would apply to him in a managerial role.
The defendant highlighted the plaintiff's managerial experience, making the point that he was equipped for work in other sectors other than at work sites. It must be understood though, that the plaintiff's managerial role is very specific to hiring staff and filling labour gaps. While those skills may possibly translate to work in other spheres, this has not been explored in the evidence. It is likely that he will have to retrain to undertake suitable employment.
Having regard to all the evidence before me, I regard the plaintiff as incapacitated for work for the next two years until his intensive treatment regime is complete. Beyond that, I expect there is a significant prospect he will have a capacity to work and be able to undertake employment. There are many uncertainties in forecasting the future and the extent of the plaintiff's loss of earning capacity. Any employment he engages in is likely to be less remunerative than he has previously engaged in. It is likely to be part-time rather than full-time. There will be a prospect that, despite improvement in his psychological condition, his symptoms may re-emerge, or that he may relapse in terms of his alcohol use disorder. Assessing his future loss of earning capacity is a speculative exercise given the imponderables. I take a cautiously optimistic approach and I will proceed on the basis of a 40% reduction for retained earning capacity beyond two years from today.

The defendant has advanced many negative contingencies. These are described as vulnerabilities idiosyncratic to the plaintiff.
The plaintiff's prior consumption of alcohol is highlighted. I accept the evidence of the plaintiff and his partner as to his alcohol consumption before his accident. He would drink on a couple of nights a week when he was not working the next day. He drank 6-10 beers. I do not see that as problematic and his work was a regulating influence.
The defendant highlighted an experience when the plaintiff was seriously assaulted in 2011 and experienced symptoms such as nightmares, and attended a psychologist. The symptoms had almost entirely resolved at the time of his injury in 2015. I do not see that as a significant vulnerability.
His health was generally good. His father was a Vietnam Veteran who had died of a heart attack in his 50s. The plaintiff had presented to a hospital with symptoms. The plaintiff was having regular check-ups in relation to his heart which is protective against that risk. He was on medication for high blood pressure. He had had knee injuries in the past and surgery as a young man. That had not emerged as debilitating but could in the future.
There were other vulnerabilities advanced but these were speculative.
Mr de Jong accurately summed-up the plaintiff's vulnerabilities as setbacks which are not significant, and before his accident he was a well-adjusted individual who he was functioning well.
I would regard an appropriate discount for negative contingencies as 10%. This makes suitable allowance for the usual contingencies of mortality, illness and injury and also the contingency of unemployment which I would regard as low in the plaintiff’s case. There are the positive contingencies of additional income, and increases in salary to reflect his performance. I would assess those as 5%. Accordingly, I allow a discount for negative contingencies of 5%.
The plaintiff is aged almost 50 years (date of birth 7 December 1970). I consider the plaintiff would have worked full-time until retirement age at 67 years of age. He loved his work and enjoyed being in demand and the contact with people. His salary package with Baytech is a reliable indicator of his pre-accident earning capacity and his loss.
I allow the following:

(1) Future loss of earnings for two years, discounted at 5%: s 28A Civil Liability Act

$1,828 per week x 99.4 $ 181,703.20

less: negative contingencies of 5% ($181,703.20 x 0.95) $ 172,618.04

(2) Future loss of loss of earnings beyond next two years, discounted at 5%

$1,828 per week x 555 $ 1,014,540.00

less: deferred payment for two years ($1,014,540 x 0.907) $ 920,187.78

less: discount for retained earning capacity of 40% and negative contingencies of 5% $ 506,103.28

Total loss of future earnings

$ 678,721.32

I have had regard to this award for future economic loss to check it against what I would have awarded if I had taken a broad-brush approach rather than an arithmetical calculation. It approximates an amount which I expect I would allow as reasonable, and as reflecting the evidence and the imponderables.

Future medical expenses

It is reasonable to allow an award for future medical expenses to reflect a comprehensive treatment regime of the kind recommended by psychiatrist Dr White. Such a treatment regime is broadly in line with the opinion of Mr de Jong. Dr White recommends the following treatment and has included costings in his recommendation:
·     Consultations with a psychiatrist at $350 per session, fortnightly consultations for four months, three weekly for four months, then monthly for four months: $6,000 in the first year.
·     Medications in the first year: approximately $2,000.
·     Ongoing conjoint therapy with a psychologist, would likely require 12-14 sessions over one year, at the current rate of approximately $240 per session: in the first year a cost of $3,000-$3,500.
Dr White's recommendation included that in the second year the costs allowed should be one half to one third of these costs.
He suggested that there be an allowance for diminishing costs thereafter until ongoing treatment and support could be provided by a general practitioner.
Dr White noted that hospital admission may be required for detoxification and the cost is in the order of $1,000 per day for the first 14-28 days, with additional rehabilitation costs that are difficult to predict. Allowing an admission of 21 days, the cost would be at least $21,000.
I regard these recommendations as a useful indication of the cost of intensive treatment that should be allowed. However, I also consider it is not possible to be definitive about the regime in terms of the number of consultations by which medical specialty, or the rate at which these consultations may diminish. The costings provided by Dr White seem reasonable and are a useful indication. I note that it is agreed that "the cost of admission to a facility like Calvary St Lukes for detox is $9720 and associated specialist care $1565.90". That may be too low but it is agreed and that is the allowance I will make.
Whether these ongoing consultations at a diminishing rate span the next two or three years or longer, such as five years, also cannot be forecast, and I note Dr White does not attempt to predict this.
Doing the best I can on the evidence available, taking what is a broad approach to endeavour to strike a reasonable and realistic amount for the needs of the plaintiff, for the comprehensive treatment regime I allow an amount of $32,000.
After the comprehensive treatment regime has been completed, it is likely the plaintiff will need to see his general practitioner. All going well, he may attend, as result of his injury, in the order of four times per year for supervision of ongoing treatment and prescriptions for medications. The cost of each visit is on average $70. It is also likely that the plaintiff will require medication, at least from time to time into the future and for many years. Again, in these matters precision is not possible and I allow what seems to be a reasonable amount of $3,000 for attending his general practitioner and an amount of $2,000 for future medication costs.
There is a probability that the plaintiff will need episodes of psychological care for many years, if not the remainder of his life. It is impossible to say how often that need may arise. There is a prospect that he will not respond to the intensive treatment regime, or that, if his condition does improve, he is left with significant residual difficulties. All I can do is place those prospects into the mix of uncertainties. It is impossible to bring any more certainty to the task of assessing his future medical needs in this regard. It is reasonable to assume an ongoing need for intermittent attendances upon his treating psychologist to allow for the prospect of relapse or the need for ongoing support.
Ultimately, the plaintiff's response to the intensive treatment regime, and the residual difficulties he may be left with are unknown. Accordingly his future medical needs in the long term are unknown. It is sensible to make a global award to meet those needs without endeavouring to bring precision to the task. It is conceded that Mr de Jong has not charged the plaintiff for treatment to date and may not do so in the future. I would have allowed a global amount of $4,000 for the future cost of intermittently attending a psychologist. Given the uncertainty as to whether the plaintiff will be charged for these consultations, I will allow a notional amount of $2,000.
His travel expenses are just as difficult to determine. Presently the cost of travelling for treatment is $0.50c per kilometre. In the past, he has incurred travelling expenses of $2,994 which are part of the agreed special damages. I will allow what seems to be reasonable as a global sum, the amount of $2,000.
I will allow $41,000 for future medical and travelling expenses.

General damages

The plaintiff experienced acute pain for some weeks. His physical condition has largely stabilised but he continues to suffer pain in his right hand every day. His life over the past 5 years has been overwhelmed by the sequelae of the injury and his incapacity to work. He has severe depression and anxiety. He is devastated by his incapacity to return to his work, and his sense of identity is profoundly affected. Previously an active and sporty person, his only sporting interest is bowls and that is problematic for him as it is associated with the stress of his injury. He has an alcohol use disorder which developed as a coping mechanism and which is incapacitating and dominates his day. His thinking now focusses around when he is going to have his next beer. His relationships with his partner and children have been affected. His losses and mental suffering are presently substantial. Allowing for the prospect of significant improvement in his psychological condition and alcohol use disorder, some of his losses and suffering will remain, particularly his inability to return to his former work which he highly valued.
I would award $80,000 for pain, suffering and loss of amenities, reflecting increases in general damages during the past several years in Tasmania.

Conclusion

The damages I have allowed are:

Past medical and pharmaceutical expenses $ 12,092.00

Past loss of earnings $ 452,753.00

Future loss of earnings $ 678,721.00

Future medical and pharmaceutical expenses $ 41,000.00

General damages $ 80,000.00

Total

$1,264,566.00

The plaintiff’s damages should be reduced by 15% because of his contributory negligence, an amount of $189,684.90. The result is $1,074,881.10. Having reviewed the total amount I am satisfied that it is just and reasonable and that the plaintiff is entitled to an award of $1,074,880.00.
The plaintiff seeks an award of interest on the judgment. As agreed, I shall allow counsel the opportunity to make submissions on this point.

(1) Future loss of earnings for two years, discounted at 5%: s 28A Civil Liability Act
$1,828 per week x 99.4	$ 181,703.20
less: negative contingencies of 5% ($181,703.20 x 0.95)	$ 172,618.04
(2) Future loss of loss of earnings beyond next two years, discounted at 5%
$1,828 per week x 555	$ 1,014,540.00
less: deferred payment for two years ($1,014,540 x 0.907)	$ 920,187.78
less: discount for retained earning capacity of 40% and negative contingencies of 5%	$ 506,103.28
Total loss of future earnings	$ 678,721.32

Past medical and pharmaceutical expenses	$ 12,092.00
Past loss of earnings	$ 452,753.00
Future loss of earnings	$ 678,721.00
Future medical and pharmaceutical expenses	$ 41,000.00
General damages	$ 80,000.00
Total	$1,264,566.00