Fraser v Victorian WorkCover Authority
[2022] VCC 2241
•19 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Ballarat COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-20-02505
| PETER FRASER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21, 23, 25, 26 and 28 October 2021 | |
DATE OF JUDGMENT: | 19 December 2022 | |
CASE MAY BE CITED AS: | Fraser v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2241 | |
REASONS FOR JUDGMENT
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Subject: TORT – NEGLIGENCE
Catchwords: Workplace injury – safe system of work – contributory negligence – bilateral Achilles tendon injuries – mental reaction – assessment of damages – pain and suffering damages – economic loss
Legislation Cited: Corporations Act 2001 (Cth), s601AG
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803; Kirriwellage v Best & Less Pty Ltd [2013] VSCA 355; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Fox v Wood (1981) 148 CLR 438; Alcoa Portland Aluminium Pty Ltd v Husson (2007) 18 VR 112; Kondis v State Transport Authority (1984) 154 CLR 672; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544; Wyong Shire Council v Shirt (1980) 146 CLR 40; Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; Hardy v Mikropul Australia Pty Ltd [2020] VSC 42; Neindorf v Junkovic (2005) 80 ALJR 341; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Erickson v Bagley [2015] VSCA 220; Erickson v Bagley & Anor [2014] VCC 2126; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Nagle v Rottnest Island Authority (1993) 177 CLR 423; Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Swain v Waverley Municipal Council (2005) 220 CLR 517; Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; Miletic v Capital Territory Health Commission (1995) 130 ALR 591; Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2) [1967] 1 AC 617; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Griffin v Victorian Workcover Authority [2016] VSC 101; Naxakis v Western General Hospital (1999) 197 CLR 269; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Bendix Mintex Pty Ltd and Ors v Barnes (1987) 42 NSWLR 307; TC v State of New South Wales [2000] NSWSC 292; Tabet v Gett (2010) 240 CLR 537; Lithgow City Council v Jackson (2011) 244 CLR 352; Chappel v Hart (1998) 195 CLR 232; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; X & Y v Pal (By Her Tutor X) (1991) 23 NSWLR 26; Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1; Luxton v Vines (1952) 85 CLR 352
Judgment: Plaintiff’s claim dismissed. Judgment for the Authority against the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Mr M A Belmar | Zaparas Lawyers |
| For the Defendant | Ms R N Annesley KC with Ms G-J Cooper | Wisewould Mahony |
Table of Contents
Introduction
The claim
The Plaintiff’s evidence at trial
The Plaintiff
Background
System of work
State of vehicle on the day of the Plaintiff’s injury
The Plaintiff’s activities on the day he was injured
Circumstances of injury
Nature and location of object causing injury
Mechanism of exit from vehicle and injury
Events immediately following the Plaintiff’s injury
Worker’s Injury Claim Form
Date of injury
Clothing on the day of the incident
Sandra Rae Legg
Stephen Andrew Cloney
The Authority’s evidence
James Ware
Missing witnesses
Medical evidence
The Plaintiff’s treating practitioners’ reports
The Plaintiff’s medico-legal reports
The Authority’s medico-legal reports
Submissions
The Plaintiff’s submissions
The Authority’s submissions
Credit
The credit of the Plaintiff
The credit of Sandra Legg
The credit of Stephen Andrew Cloney
The credit of James Ware
Findings
What injury did the Plaintiff sustain?
When did the injury occur?
What was the state of the vehicle on the day the Plaintiff was injured?
Was there a piece of metal inside the vehicle in the vicinity of where the Plaintiff was injured?
Was the angle iron visible?
Was the angle iron sharp?
Was the angle iron protruding?
If the angle iron did protrude, did Dreamtech know/ought to have known, of the protrusion?
Did the Plaintiff see the angle iron prior to the day he was injured?
Legal principles
Duty of care
Breach of duty
Reasonable foreseeability of risk of harm
Did Dreamtech fail to take reasonable precautions in response to the reasonably foreseeable risk of harm?
If Dreamtech breached its duty of care, did the breach of duty cause the Plaintiff’s fall?
Conclusion
HER HONOUR:
Introduction
1On 12 March 2016, the plaintiff, while working as a metal fabricator/welder at a limousine fabrication/alteration business operated by his employer, Dreamtech Conversions Pty Ltd (“Dreamtech”),[1] suffered injuries to his Achilles tendons bilaterally and to the calf area of his legs.
[1]Dreamtech is currently de-registered and has ceased to operate; however, it held an insurance policy with the Victorian WorkCover Authority (“the Authority”) that covered, and continues to cover, any liability it has or had to the plaintiff for injury, loss and damage. The plaintiff makes a claim against the Authority pursuant to s601AG of the Corporations Act 2001 (Cth)
2On the day he was injured, the plaintiff had attended work and was performing work on the inside of the rear of a partially complete stretch Lincoln motorcar which was being converted into a gelati vending vehicle (“the vehicle”). The plaintiff alleged he suffered injury when he went to exit the vehicle from the rear and caught his clothing on a piece of metal, causing him to fall heavily and awkwardly outside the vehicle.
The claim
3The plaintiff alleged Dreamtech owed him a duty of care to provide a proper and safe place of work, a proper and safe system of conducting his work, competent co-workers and proper supervision. He further alleged that Dreamtech’s servants or agents were negligent, and his injuries, loss and damage were caused by their negligence.
4The Particulars of Negligence alleged that Dreamtech was negligent by:
(a) failing to provide a safe and proper place of work;
(b) failing to devise a safe work method statement for working in the relatively confined space of the vehicle;
(c) having in the rear of the vehicle a protruding piece of metal which was likely to catch on clothing;
(d) failing to remove all pieces of metal extending internally in the body of the vehicle so as to prevent a hazard;
(e) failing to warn the plaintiff about the presence of the piece of metal;
(f) failing to remove the piece of metal when its function had ceased; and
(g) failing to highlight and/or make obvious the presence of the piece of metal should it have been necessary for it to remain in situ.
5The plaintiff sought damages for pain and suffering, loss of enjoyment of life, loss of earnings and loss of earning capacity.
6An earlier pleaded claim of breach of statutory duty was abandoned at trial.
7The Authority admitted Dreamtech employed the plaintiff and that it owed him a duty of care to act reasonably, including a duty to avoid unnecessary risk of injury. It admitted, by a Claim Form dated 23 May 2016, that the plaintiff claimed injury to both of his Achilles tendons on 12 April 2016 as a result of doing welding on a car. The Authority denied the circumstances of the injury as alleged and denied it was negligent, or that any negligence on its part caused the plaintiff’s injury, loss and damage. It contended that when the plaintiff went to exit the vehicle from the rear, he did not catch himself on a piece of metal, causing him to fall heavily and awkwardly outside the vehicle. Rather, the plaintiff jumped from the vehicle, and that was the cause of his injury, loss and damage.
8The Authority alleged that if it was negligent, the plaintiff was contributorily negligent.
9Central to resolution of the issue of whether there was any negligence was a dispute as to whether the plaintiff caught his shirt and fell as alleged or whether he stepped, jumped, or intentionally moved from the vehicle.
The Plaintiff’s evidence at trial
10At trial the plaintiff adduced evidence from the plaintiff, the plaintiff’s partner, Ms Sandra Legg, and Mr Stephen Cloney, a former employee of Dreamtech from 2008 to 2013.
11Several documents and medical reports were also tendered by the plaintiff. These included:
(a) reports from the plaintiff’s treaters, Dr Peter Burr, general practitioner; Dr John Adamopoulos, chiropractor; Mr David Shepherd, orthopaedic surgeon, and Mr Otis Wang, orthopaedic surgeon;
(b) medico-legal reports from Dr Joseph Slesenger, occupational physician, and Mr Iain McLean, orthopaedic consultant of knee problems;
(c) radiology and other reports including ultrasound reports dated 16 May 2016, 14 November 2016 and 31 October 2017;
(d) operation report dated 20 March 2017 and various clinical notes from Dr Adamopoulos; the Casey Super Clinic, and Dr Peter Burr, general practitioner, Narre Warren Medical Centre;
(e) various photographs of the vehicle;
(f) Worker’s Injury Claim Form and an Employer’s Injury Claim Form; and
(g) a summary of agreed calculation of the plaintiff’s economic loss.
12The plaintiff did not rely upon any expert evidence.
The Plaintiff
Background
13The plaintiff was born in January 1957 and was aged sixty-five at the date of the hearing.
14He lives at Narre Warren South with Ms Legg.
15The plaintiff has two independent children from earlier marriages: a daughter aged twenty-five years and a son aged thirty-six years.
16The plaintiff moved to Australia when he was three-and-a-half years old. His mother was from Italy and his father was from Scotland. He completed school to Year 11.
17After he finished school, the plaintiff’s first major job was with Coles as a trainee assistant manager. He remained with Coles for a few years.
18The plaintiff completed an apprenticeship as a motor mechanic and subsequently, worked in the automotive industry for over thirty-five years.[2] He worked for Sargent, re-conditioning engines for about seven years, before commencing his own mechanical workshop business in which he worked for approximately ten years. He then worked for a short time with a friend in his business erecting spray booths.
[2] Transcript (“T”) 147, Line/s (“L”) 4-6
19From around 2008, the plaintiff worked at Dreamtech Pty Ltd, a company formerly directed and owned by Mr James Ware and Mr Graeme Scott. The business converted stretch Hummer vehicles to limousines. The plaintiff performed fabrication and mechanical work for the business.
20From August 2011, a new company, Dreamtech, was commenced by Mr Ware and Mr Scott. The plaintiff was thereafter employed by Dreamtech as a mechanic/fabricator until 30 June 2016.
21The plaintiff considered himself to be a good mechanic with skills in trimming, upholstery, metalwork and fabrication. He was experienced – he described himself as “anal” – and said he took great care when working on a vehicle which was not his own. He required minimal supervision.
System of work
22The plaintiff gave evidence about the usual work he performed on vehicles for Dreamtech. He described using drills, grinders, welders, nail guns and undertaking upholstery work during a usual day’s work. He cut steel every week to fabricate parts of vehicles and he worked with an angle iron “quite often”.
23The system of work utilised by Dreamtech and adopted by the plaintiff in a typical fabrication process involved fabrication of the steel framework of a vehicle by taking measurements, cutting the steel, putting it in place and then, provided it was correct, welding it off.
24For specific jobs, the plaintiff said Mr Ware and Mr Scott had a plan, but it was not written down. They gave the plaintiff instructions as to what they wanted done. On occasion, they came out and looked at the work, but there was no particular system of inspection. The plaintiff said, “they would come out and say, ‘We need to cut this, here and here’”.
25At the time he was injured, the plaintiff was working on a stretch Lincoln motorcar which was being converted into a gelati-vendoring vehicle. He said he had not been provided with a written or diagrammatic plan from which to work, and he had not been given any directions, instructions or warnings about hazards, or protruding or sharp-edged metal.
26He said that prior to his accident, he had never been shown an injury book and no-one had explained to him what he needed to do in the event of an accident or injury, although he had once reported a cut to his head to Mr Scott.
27The plaintiff was not aware of a particular person at Dreamtech who had been appointed as the occupational health and safety officer.
State of vehicle on the day of the Plaintiff’s injury
28The plaintiff was questioned about his recall and memory of the state of the vehicle on the day he was injured. He said the fabrication of the vehicle was not complete. No changes had been made to the front of the vehicle.
29The rear passenger door of the vehicle had been removed and remained off. There had been no change to the rear passenger section of the vehicle from the back door backwards and no changes to the left-hand rear door panel.
30The top part of the left-hand rear door pillar (as distinct from the left-hand rear door panel) had been cut away, replaced and filled in. The top section of the left-hand rear door panel had been cut away and replaced, but otherwise there had been no changes to either the top or bottom sections of the left-hand door pillar. The plaintiff did not do any work on the pillar and did not attach any piece of metal or steel to it.
31Looking from the rear of the vehicle,[3] the left side and left half of the roof of the vehicle had been cut out. Blue steel beams had been inserted into the roof by the plaintiff. They ran along the centre of the vehicle from the front to the rear. There was an arched steel beam on either side of the vehicle which was positioned beside the door pillar.
[3] Exhibit D; and PACB, page 239
32The plaintiff said there was an L-shaped greyish angle iron (“angle iron”) affixed to the blue steel frame. Before he was injured, the plaintiff said, “it never stood out”. He had not put it there and he did not know its purpose.
33After the steel beams had been inserted into the vehicle, the plaintiff described the process of doing repairs to the floor to cut out the top of the tunnel, which was a raised section in the middle of the interior of the vehicle which ran lengthwise. The process of repairs to the floor to cut out the top of the tunnel involved placing a new cover over the tunnel and stitching it on, applying a primer to the floor and installing a movable floor.
34The movable floor was made of Alumiclad. The plaintiff described this as being like a sandwich of aluminium with a plastic filling and more aluminium. It sat on a steel platform. The steel platform was fabricated so that it moved and slid backwards and forwards via two electric rams over the tunnel. Refrigerators, which the plaintiff described as “huge”, sat on the moveable platform. The doors over the refrigerators had hydraulic arms.
The Plaintiff’s activities on the day he was injured
35On the day he was injured, the plaintiff said he was working on the fabrication of the vehicle and was welding brackets that attached a moveable platform to the floor of the vehicle. His evidence was that the floor had not been attached to the frame/moveable platform. This meant that the hydraulic arms of the doors over the refrigerators, which were installed after the movable floor was finished, had also not been installed.
36The plaintiff’s evidence was that he had entered the vehicle via the small left rear door[4] shown in exhibit C,[5] which was a photograph taken on 9 March 2016.
[4] T64, L2-3; T164, L27 – T165, L3; Exhibit C
[5] Exhibit C; photograph at PACB page 244
37The plaintiff’s evidence was that as he entered the vehicle, he was looking forward and slightly to the left and was focused on where he was going to weld. He was not looking at his surroundings. He remembered having to balance himself as he crawled into the vehicle on his hands and knees.
38Once inside the vehicle, there was very limited space or headroom. He said he could not have stood inside the vehicle. There were a lot of obstructions on the floor, including pieces of metal, and there was also a lower section in the floor as shown in exhibit D.[6] The plaintiff said he was aware of where he was and what he was doing, but when working in cramped spaces, he said, “I don’t look at everything … I only look at what I’m actually working on at the time”.
[6] Exhibit D; photograph at PACB page 255
39The plaintiff said he could not really see the left-hand door pillar in his peripheral vision, and he was not really looking at the steel arch. He was not aware of what was immediately next to him because he had a welding helmet on, with the visor down.
40The plaintiff’s evidence was that he had taken a welding rod in with him to weld the steel brackets onto the rear of the floor of the vehicle to support the structure. He said a grinder and tools were already in the vehicle.
41The plaintiff provided varying accounts of where he was positioned in the vehicle to weld. He initially described his position as kneeling in a small hole in a section of the floor. He described this as the position which he marked on exhibit A[7] immediately to the left of where he could be seen squatting. He marked where he said his knees were positioned. Next, he described having to straddle pieces of metal in the floor. He said he had one knee on one side, and the other knee on the other side of a piece of metal, to try and balance himself. Later, he said he had both knees in the same section of the floor faced towards the rear of the vehicle and he was squatting.[8]
[7] Exhibit A; photograph at PACB page 253; T104, L4-8
[8] T106, L7-17; Exhibit A
42As cross-examination proceeded, the plaintiff expanded on his evidence and said because there was no top on the movable platform on the day he was injured, he had to navigate the cross bars of the support structure and try to position himself so he could weld. There was bracketry/bracing in the floor which held the bearing mechanism that the floor slid on. There were “brackets on the tunnel” and “on the other pillar” which the plaintiff said he had to reweld off, linish and grind. He was welding to his left. He said he was facing sideways and leaning over the tunnel towards the other side of the vehicle, and straddling the framework of the movable platform,[9] as shown in the area marked with the letters “LX” and “RX”[10] in exhibit 3.[11]
[9] T227, L2-24; Exhibit 3
[10] T199, L24 – T200, L11; Exhibit 3
[11] T228, L11-12; Exhibit 3; photograph at PACB page 280
43In cross-examination, it was suggested to the plaintiff the Alumiclad floor was inserted after all the work had been done on the floor underneath it.
44It was further put to the plaintiff that to ascertain the height and measurements of the hydraulic door, the refrigerators had to be installed and permanently affixed to the movable floor. The hydraulic arms were then completed after the top of the moveable floor was affixed and the refrigerators had been installed.
45The plaintiff said, even if the photographs which showed the moveable floor in place were taken on 9 March 2016, he was welding on the morning of the day he was injured and there were no refrigerators in the vehicle. He said he caught himself on a sharp object as he was exiting the vehicle and fell out of the door.
46It was suggested to the plaintiff that if the Alumiclad floor had been installed/affixed to the moveable platform, and the refrigerators and hydraulic doors were in place, he could not have been welding inside the vehicle on the day he said he was injured. It was contended this, in turn, cast doubt on his recollection of the mechanism of his injury. The plaintiff disagreed.
47The plaintiff’s evidence in cross-examination was that after the Alumiclad floor was installed, measurements were taken of the refrigerator and the floor to identify how much room was needed for the door. The door was manufactured. The refrigerators were then installed permanently. Finally, the process of installing and perfecting the fit of the hydraulic doors was undertaken.
48The plaintiff was shown the photographs comprising exhibit 5, taken on 9 March 2016.[12] These showed the moveable floor in place with the refrigerators installed. The plaintiff referred to photographs of the refrigerators sitting on wooden pallets and suggested that the refrigerators could have been taken off the pallets using a forklift and placed on the moveable platform as a “test fit” and then moved off again after the “test fit” was complete. It was suggested this was consistent with one of the photographs in exhibit D which showed a refrigerator sitting on the moveable floor[13] but not affixed to the frame on which it was sitting, the Alumiclad floor still having the plastic coating with writing and arrows on it.
[12] T243, L30-31; Exhibit 5; photographs at PACB pages 296 and 297
[13] Part of Exhibit D; photograph at PACB page 290
49When pressed, however, the plaintiff simply did not remember whether the refrigerators remained in place after they were taken off the wooden pallets. The plaintiff also could not remember whether the refrigerators were placed in the vehicle before the hydraulic arms were installed. He could neither confirm nor deny that. He accepted that if the evidence was the door was built, installed and tested before the hydraulic arms were installed, he could not disagree with that evidence. He was then cross-examined to establish the date that the hydraulic arms and doors were installed.
Circumstances of injury
50The plaintiff could not recall the last part of the vehicle he welded before he exited the vehicle, but he said he was kneeling with both his knees at the position marked with a red line on exhibit 2.[14] After he finished welding, he wanted to exit the vehicle through the rear door. As he was “starting to exit the vehicle” he turned to his right and had to straddle the beam to try to get out the door on the left-hand side. He started “to kneel or crawl towards the back door”, the door opening past the pillar. He was navigating the structure that was in the floor and the three or four different levels. He was moving slowly, he said, because he had a welder in his hand and a welding helmet/visor on. The helmet/visor was half up and half down so he could see where he was going.
[14] Exhibit 2; photograph at PACB page 287
51The plaintiff said he brushed past the centre pillar and felt a sharp object which grazed his side. When he attempted to move away from it, he said it grabbed his shirt and put him “off balance as [he] was exiting the door”. He said:
“… I was - that was in the motion of getting out of the back door when that happened and then it put me off balance because I had the welder and I had the helmet on so - and then it happened so quickly.”
Nature and location of object causing injury
52The plaintiff was unable to specifically identify the location or nature of the sharp object. He recognised that there was an angle iron shown in several photographs. It had never stood out to him as a hazard. He had not put it there and he did not know its purpose. He therefore had no reason to be on guard as he went past the pillar. He was unable to say if, or how far, it protruded into the entry of the doorway, although he said, from the photographs, he could “see the angle iron protruding in the large entrance”.
53Further, when questioned about whether he had previously caught himself on a metal edge while working on a car, he responded he had not. This was the first time he had encountered a protruding piece of metal in a vehicle that might catch clothing or skin, although pieces of metal that may have presented a hazard to a person if they were not aware of them, “happened quite often” in work environments such as inside a limousine. The plaintiff said that “on a rare occasion you would come across something that had been cut and not finished and it would leave a sharp edge”. His usual practice was therefore to smoothen all the edges with a linisher – a form of grinder – or cover them with a rag.
54The plaintiff was cross-examined about the improbability that he did not see the angle iron. He was asked about the date the hydraulic doors were fitted to the vehicle, and it was suggested the angle iron was obvious. Further, it had a legitimate purpose to act as a temporary door stop so the hydraulic door could be fitted properly. The plaintiff did not know whether the angle iron was used as a doorstop. He suggested it was not, and the frame of the door closed against the floor. He accepted the angle iron doorstops were integral to the fitting of the roof top.
55The plaintiff agreed that the angle iron was present after 22 February 2016 because the hydraulic doors, seen in exhibit 4[15], had not been installed before that date. He accepted that the photograph in exhibit 4 taken on 2 March 2016 also showed an angle iron at the left-hand rear pillar and one at the left-hand front pillar.[16] The further photographs, in exhibit 4[17] and exhibit 5,[18] which were taken on 9 March 2016, showed that the moveable floor and the refrigerators were in place. They also showed the protruding angle iron.[19] Based on those photographs, the plaintiff accepted the angle iron was present until at least 9 March 2016.
[15] T250, L13 – T251, L8; Exhibit 4; photograph in PACB page 243
[16] T238, L23 – T239, L5; Exhibit 4; photograph in PACB page 243
[17] Exhibit 4; photograph in PACB page 244
[18] Exhibit 5; photograph in PACB page 296
[19] Exhibit 4
56Footage from two videos was played of the vehicle’s hydraulic doors being opened and closed. The footage was taken on 8 March 2016.[20] The plaintiff was wearing the t-shirt he said he was wearing on the day he was injured. He accepted he was not injured when the video footage was taken.
[20] T245, L7-14; Exhibit 6
57In the videos, the plaintiff was observed to be assisting with the alignment of the hydraulic door and using the angle irons as a temporary door stop. It was suggested to him he would have been able to see the angle irons on 8 March 2016 because they were obvious in the video footage. His response was he could not say, because he was concentrating on the door going up and he was not trying to observe anything. He did not know whether the doorstops were obvious. He agreed though that they were greyish in colour and were affixed to the steel beam which was vibrant blue. He also said the doorstops would have stood out “[i]n contrast to the beam but the surroundings I am not quite sure.”
58It was put to the plaintiff that his memory of what happened to him was so poor that he really could not recall what happened at all. He accepted that his “memory is pretty poor normally” and that he “put all of that out of my mind pretty much”. He said that even in May of 2016, he could not remember when the injury happened. He was “not positive of the dates”.
Mechanism of exit from vehicle and injury
59In his affidavit sworn 19 September 2019 for the serious injury application, the plaintiff said that as he went to get out of the rear vehicle and proceeded to his knees (as he had to), he felt his shirt catch on something which knocked him off balance. Because he was unbalanced, he fell forward. To arrest his fall and to avoid hitting his head, he reached out with one hand and grabbed the door opening. He managed to get one foot out and that went under the car. He fell onto the ground to his knees. His feet went under the vehicle at a funny angle. He said he felt and heard a cracking sound.
60In evidence, the plaintiff described exiting the vehicle and landing on the floor just outside the vehicle “like a bag of spuds”. He said he was “spread eagle everywhere”. He heard a cracking noise. He tried to stand up and both his legs hurt. He managed to get up and went to the office to see Mr Scott. The plaintiff said he was in so much pain that he could not remember whether he went home immediately, but when he arrived home, he told Ms Legg what had happened.
61The plaintiff was cross-examined about the account he gave of the mechanism of his injury in his affidavit and it was suggested that it differed from the account he had given in his evidence. In cross-examination, he accepted that insofar as he swore in his affidavit that he tried to arrest his fall and reach out with one hand and grab the door opening, this was inconsistent with the evidence he had given at trial. He also agreed that in evidence, he did not describe any movement of his feet from underneath him by getting his left leg out and his right leg out before he fell out of the vehicle.
Events immediately following the Plaintiff’s injury
62Following his injury, the plaintiff said he felt immediate pain and was unable to walk.
63He said he did not tell Mr Ware anything about his fall because he did not see or speak to him.
Worker’s Injury Claim Form
64The plaintiff submitted a Workers’ Injury Claim Form dated 23 May 2016.[21] The description of the accident provided on the Claim Form was that his injury occurred on 12 April 2016[22] and that the circumstances of the injury were he was “working in rear of vehicle climbing out of rear shirt caught on steel landed on balls of feet tearing both Achilles” (sic).[23]
[21] Exhibit B
[22] T254, L1-9; Exhibit B
[23] T279, L25-29; Exhibit B
65The plaintiff was cross-examined about the accuracy of the information contained in the WorkCover Claim Form and his familiarity with the WorkCover process. It was put to him that he knew, from operating his own business, that when he signed a WorkCover Claim Form he was making a declaration that it was true and correct. The plaintiff accepted this. He agreed he provided a handwritten description of the accident. He wrote that the injury occurred on 12 April 2016 and also that he had provided information about how the injury occurred to Mr Scott, and signed the form. When the truthfulness of the information he had provided in the form was challenged, the plaintiff’s explanation was he did not read the form, although he should have, and assumed that because the information was coming from his employer, it was correct.
Date of injury
66In the plaintiff’s affidavit sworn on 2 September 2019 for the purposes of his serious injury application, the plaintiff said he believed he was injured on 12 April 2016.[24] The Further Amended Statement of Claim however, alleged that the plaintiff was injured on 12 March 2016.
[24] Exhibit D
67When the plaintiff was cross-examined about when he was injured, he said he was not “exactly positive” what date the injury happened, and he may have got the dates confused. He said he had obtained notes from a medical clinic he attended and was “piecing together” when the accident occurred by reference to other documents.
68The plaintiff accepted he was not injured in the video taken on 8 March 2016 so the injury must have occurred after that date. Because 12 March 2016 was a Saturday, and he did not work on Saturdays, he accepted the injury could not have happened on 12 March 2016. He also accepted he did not work on Fridays, save for the odd occasion, which meant it was unlikely he was injured on 11 March 2016. Further, because he had seen Dr Santhl Kosaraju at Casey Medical Centre on 12 March 2016, and she had noted that he had experienced a history of pain in both lower legs on the back of his heels “for a day”, he accepted his injury most likely occurred on Thursday, 10 March 2016.
Clothing on the day of the incident
69The plaintiff was asked about what he was wearing at the time of the incident. He said in evidence that he was wearing a t-shirt and overalls. When challenged about this, he said, “I’m pretty well it was shorts because I had slight grazes on my knees which I recall as well” (sic). However, he later said “I knew I was wearing that – that t-shirt but I can’t recall whether I had long pants or short pants on”.
Sandra Rae Legg
70Ms Legg said that she had been in a relationship with the plaintiff for twenty-one years.
71Prior to the incident, she and the plaintiff had a passion for classic cars, and enjoyed attending car shows, restoring cars, and going for drives. She described him as being “full of life and fun to be around,” and also as being “quite agile and quite fit”. She said that he had a motorbike and used to go for rides weekly with his friends. They had also previously travelled to the United States to go to swap meets and car shows.
72Ms Legg said that prior to the incident, the plaintiff had suffered a cardiac event, requiring stents, and they had purchased pushbikes for him to exercise. She said they had only been able to ride twice before he sustained his injury, preventing him from riding the bike again.
73On the day of the incident, Ms Legg recounted the plaintiff returned home after work. She saw him limping. She asked him what had happened and recalled the following conversation:
“…he said to me, ‘I was working in the back of one of the cars. I got out, something grabbed my shirt, and I fell, and I’ve hurt my leg’. And I looked at him and I said, ‘Your shirt’s ripped’, and, ‘What happened? What caught you?’ He said, ‘I don't know. Something caught me’, and I’ve looked at his shirt, and he had a scratch on his skin.”
74Ms Legg could not remember what date or day the incident occurred.
75There was a small rip on the right-hand side of the plaintiff’s t-shirt, near his rib area, above his waistline. She told him to go and have a hot shower, and afterwards she massaged a Deep Heat treatment on his legs, as they thought he had pulled his calf muscles.
76Ms Legg recalled the plaintiff was in a lot of pain following the incident. He did not get any better. Not long after the accident, they arranged for the plaintiff to see Dr Adamopoulos. Ms Legg said the chiropractor “did an adjustment on the legs or tried to. It just - it got worse from there.” Ms Legg also recalled that she took the plaintiff to see a GP at the Casey Superclinic; however, she could not recall what the outcome of the appointment was.
77The plaintiff saw a sports physiotherapist and Ms Legg recalled the plaintiff received dry needling treatment which caused a bad reaction in his left leg. There was concern it may have been thrombosis.
78The plaintiff was later referred to see Mr David Shepherd and ultimately underwent surgery.
79In the month or two prior to his surgery on 20 March 2017, Ms Legg recalled the plaintiff was having difficulty getting through each day. He had to take his shoe off to drive home as he was unable to bend his foot with his shoe on.
80Following the surgery, the plaintiff had time off work. Ms Legg could not recall for how long. He eventually went back to work. Ms Legg said for two weeks though, the plaintiff had to sit on the couch with his feet elevated. He found it difficult to mobilise. As Ms Legg was working, she left him food and water while she went to work for the day. After about five days, the plaintiff was complaining that his incisions felt extremely tight. A nurse came to their home to look at the bandages and told them there had been a massive bleed in both his Achilles. Because the plaintiff could not mobilise, “depression set in very badly” for him. Ms Legg came home from work, and she recounted the plaintiff would be in tears.
81Dreamtech went into liquidation in June 2016 and the plaintiff was then unemployed. He later worked for a company called HG Limos.
82Ms Legg described the holidays that she and the plaintiff had taken since his injury.
83In 2016, she said she and the plaintiff went to Reno, Nevada in the United States to a car festival for five days. During the festival the streets were closed off, and people stood at the barricades to watch the cars progress in a line. They were unable to do that because the plaintiff could not stand. Even walking from the hotel two blocks away was too much for him. Most nights his legs were sore, and she had to give him a massage.
84In 2019, she and the plaintiff went on a trip to Italy to see the plaintiff’s family for two to three weeks, before they went to Scotland for four days to see Ms Legg’s family. She recalled that while they were travelling in Italy, they either used the train or the hop on/hop off bus, or the hop on/hop off boat. While they were on the bus or the boat, they did not get off very often. They were limited due to the plaintiff’s injury, and a lot of the destinations were very busy. There were a lot of things the plaintiff could not do, particularly because of the hills in Italy.
85Ms Legg said that during their time in Scotland, her cousins drove them around. On one occasion she and the plaintiff went for a walk, but otherwise they just stayed at the house and relaxed, as it was too much for him.
86Ms Legg said that the plaintiff is now only able to work two days per week. She has reduced her work hours to help the plaintiff with his depression. She said when the plaintiff comes home from work, he will be often limping. When he sits on the couch, he constantly moves his feet, as they are constantly agitated and sore. When his feet are sore, Ms Legg attempts to massage them, but sometimes they are too sore, and she cannot touch them. She can feel the thickness of his Achilles on his left side, which is worse than the right.
87Ms Legg described the impact of the injury on the plaintiff’s hobbies and interests since the incident.
88I considered Ms Legg to be a co-operative witness who provided an honest and reliable account of events. She did not exaggerate her recollections.
Stephen Andrew Cloney
89Mr Cloney commenced his employment with Dreamtech Pty Ltd as a panel beater in around 2008. He later worked as the head of fabrication. He continued to work for Dreamtech, ending his employment in around mid-2013. He was called by the plaintiff to give evidence.
90Mr Cloney gave some general evidence in relation to his practices during his time with Dreamtech Pty Ltd and Dreamtech, including his practice with respect to the use of angle irons. He said that in 2013, angle iron would have been cut with either a drop saw or an angle grinder. He gave evidence that after the angle iron was cut, the edge was sharp. The practice he adopted was to take the sharp angle iron to the linisher, which is a sanding tool, and dull the edges that had been cut. He denied being given any training by Dreamtech with respect to this practice and said that it was a practice he had put into operation himself.
91Mr Cloney’s evidence was the angle irons were on occasion attached to either the inside or outside of vehicles during the fabrication process to provide a temporary support or to “make a jig for a part of the car that needs to be in the same, exact place for every car”.
92Depending on the use of the angle iron, it would either be bolted to the car, so it could be removed when no longer required, or if the angle iron was to be a permanent fixture, it would be welded in place. If the angle iron was to remain in place, depending on its location, and the awkwardness of its position, Mr Cloney’s practice was to either mark the angle iron with a rag, or wrap some tape around it. He did this because the height between the floor and the ceiling in a limousine is very narrow. A person needed to be on their hands and feet to crawl in and out of the vehicle. Marking the angle iron was done to prevent someone who was entering and exiting the vehicle from snagging themselves on it.
93I considered Mr Cloney to be a co-operative witness; however, in my view, his evidence, in the end, was of limited, if any relevance. He ceased working for Dreamtech three years prior to the incident. To the extent his evidence pertained to the system of work employed by Dreamtech, it related to the system of work in 2013. It had no bearing on the system of work in 2016. I therefore ascribed it very little weight.
The Authority’s evidence
94The Authority called evidence from Mr James Ware, a former director of Dreamtech.
95It also tendered various photographs and videos; paragraphs 12 and 13 of the plaintiff’s serious injury affidavit sworn 2 September 2019; clinical notes from the Narre Warren Medical Clinic and Dr Adamopoulos; a hand-drawn diagram prepared by the plaintiff; medico-legal reports from Dr Michael Baynes, occupational physician; Dr Graeme Doig, orthopaedic surgeon; Mr Arshad Barmare, orthopaedic surgeon, and Associate Professor Anthony Buzzard, general surgeon. It also tendered the plaintiff’s payslips dated 12 February 2013 to 9 September 2014 and a letter dated August 2016 from Ron Griffiths, massage therapist.
James Ware
96At the time of the incident, Mr Ware was a director of Dreamtech, alongside Graeme Scott. He was also the manager and CEO of the business and was hands-on in the workshop as well.
97He had operated an automotive business since 1991 and had a background working in the manufacturing of vehicles and stretch limousines since 1995.
98Dreamtech ceased operations in June 2016 after going into liquidation due to a downturn in the limousine industry in Australia and throughout the world.
99Mr Ware had known the plaintiff since approximately 1996. They met when the plaintiff was running his own automotive gas fitting business. The plaintiff did some work for Mr Ware and Mr Scott, and they did some work for him.
100The plaintiff commenced working with the predecessor company of Dreamtech in 2008. Mr Ware said the plaintiff was employed as a coach builder or mechanic in the workshop “but he also took the role as the leading hand or workshop manager”. The role he had as a coach builder then leading hand/manager continued with Dreamtech.
101Mr Ware gave evidence that his role was “more towards the engineering side of things” and Mr Scott’s role was “electronics and electrics”. Mr Ware estimated that in late 2015 to early 2016, he spent 70 to 80 per cent of his day on the floor.
102Mr Ware’s evidence in relation to the plaintiff’s work schedule was that the plaintiff worked Monday to Thursday and would generally start work between 7.00am and 7.30am, which was usually before he or Mr Scott arrived at work. The plaintiff had his own key and code to the security system. The plaintiff generally left work around 4.00pm to 4.30pm.
103Aside from himself and Mr Scott, there were four employees. Mr Ware described the plaintiff as follows:
“[He] had a wide band of skill sets being in the industry for as long as he had been so we would rely on him for virtually everything and guidance for the other fellows in the workshop as well to - they could come to him to get advice on what they were doing.”
104Mr Ware recalled receiving a customer order in relation to a Lincoln limousine, which they started work on in October 2015. The job involved taking an existing stretch limousine that had been manufactured in the United States and turning it into a gelati van. The job was a prototype. It was a one-off job. He said that he and Mr Scott planned what had to be done, but they also involved the plaintiff, as he had wide experience and good ideas about how to go about building vehicles.
105In relation to the system of work adopted by Dreamtech, Mr Ware was not familiar with a safe work method statement.
106Mr Ware said the plaintiff was very involved in the project. The transcript records:
Q:“And in relation to this particular project, this limousine gelati project, gelati truck project, how involved was … [the plaintiff] in relation to the construction of it?---
A:He was pretty involved. We like to give people sort of a pet project and if it was a pet project of anyone’s, it was probably … [the plaintiff’s]. We were all obviously hands-on in building it but, yeah, he had a big say in how things were going to be done on that, yeah.”[25]
[25] T458, L19-26
107Mr Ware described the steps involved in the project. These included completely stripping out the inside interior of the vehicle, cutting the side and roof of the vehicle and using the measurements of the refrigerators to make a profile out of wood of what the refrigerator was going to look like so it would fit into the vehicle; cutting the top off the transmission tunnel inside the floor to lower the floor height; reinforcing the body of the vehicle with a steel structure and making a section over the length of the roof between the front and the back to fit a hinge to make the side of the vehicle open up; manufacturing the sliding door; manufacturing the moveable platform using specialised heavy duty linear bearings and linear rods to make very heavy duty drawer runners that attached to rails that ran from left to right inside the vehicle; manufacturing the moveable floor frame from food grade stainless steel; installing the freezers onto the moveable floor; connecting the mechanisms to make the freezers slide and roll individually on the floor and to make the floor slide in and out of the vehicle; making the roof door and the frame to fit around the freezers inside the vehicle in the shape of the profile of the vehicle; installing the electric actuators to operate the roof door, and gluing the fibreglass shell over the structure, to cover it, and tidying the vehicle up.
108Mr Ware was asked about the left-hand rear door pillar of the vehicle. His evidence was that there had been no changes to its actual structure. It remained in its original condition. The only change made, other than the attachment of the blue steel hoop, was to the window of the outer skin. Mr Ware was shown exhibit 8.[26] This included a photograph which showed part of the roof of the vehicle which had been cut out as well as the blue framework, which was also referred to as the arch loop or beam. It also showed a grey section of the vehicle which extended down to a white section. The white section was the outer side panel skin which was not part of the door pillar.
[26] Exhibit 8; photograph at PACB page 261
109Exhibit 8[27] included a photograph taken on 20 January 2016. It showed the outer skin which had been cut for the door. The side panel had been connected to an infill panel which covered the blue hoop or arch. A piece of metal had been welded where the window used to be between the roof and white side panel. After 20 January 2016, Mr Ware said the only other work done to the vehicle was to manufacture the overhead door and the side of the vehicle.
[27] Exhibit 8; photograph at PACB page 272
110Mr Ware was next shown another photograph forming part of exhibit 8.[28] This was a photograph taken from the right-side of the vehicle looking to the left-hand rear pillar. Three holes had been cut out of the white section of the vehicle. Mr Ware said those holes were used to access the bolts that held the door hinges on the outside of the pillar. Between the top and middle square hole was a piece of angle steel that was welded to the blue beam and attached with high strength rivets to the pillar. Mr Ware said the angle steel did not protrude past the face of the beam. It stopped slightly short of the beam.
[28] Exhibit 8; photograph at PACB page 287
111Mr Ware described the drive tunnel and the rusty pipe inside the drive shaft. He said the drive tunnel and shaft needed to have steel plates welded over them and to be painted. That work needed to be completed before the sliding floor surface was attached, because after that occurs there is no further access to that section of the vehicle.
112Mr Ware also identified three black beams going down the perpendicular which he said were to support the heavy-duty drawer runners.
113Mr Ware was questioned in relation to the moveable platform. His evidence was he believed the platform had been glued down prior to the incident. Accordingly, there would have been no need for any further welding to take place inside the vehicle. Mr Ware was questioned as to how he could tell the platform was glued down.
114Mr Ware was shown one of the photographs in exhibit 5.[29] He said that as the two refrigerators could be seen on the moveable platform in the photograph, the white plastic covered stainless steel surface had been glued down.
[29] Exhibit 5; photograph at PACB page 297
115Next, he was shown the photographs from exhibit D. One photograph[30] showed a refrigerator on the moveable platform. Mr Ware said the refrigerator was on the platform to work out the profile and shape of the roof beam supports. The front edge of the platform was black. He explained that was the undercoat before the floor was glued down. In the next photograph the pull-out beam was painted white. Mr Ware said that the floor must have been glued down because the beam had to be painted from all edges. The painting would not have been able to be done after the floor was glued on. Once the floor was glued down, Mr Ware said there is no more welding done in the rear of the vehicle.
[30] Exhibit D; photograph at PACB page 295
116Mr Ware was asked about the process of gluing the floor down and his recollection of the date that occurred. He said the moveable floor was glued down with polyurethane adhesive and was then clamped using a piece of steel running behind the fridges with some barbell weights, to weigh it down.
117Mr Ware was shown exhibit 4 which was a photograph taken on 2 March 2016.[31] He said the white painted front beam and the piece of blue steel which lay on top of the floor to clamp it down while the glue was going on, could be seen. His recollection was the floor was glued down on the Friday before the refrigerators were fitted. He said this was on 4 March 2016. He recalled this because they wanted to allow the glue to dry over the weekend.
[31] Exhibit 4; photograph at PACB page 243
118At that stage, the roof was being held up by a piece of wood. The roof had question mark shaped hinges at the front and the rear. The refrigerators could not be fitted until after those hinges had been installed. His evidence was those hinges were not manufactured until 29 February 2016.
119Once the hinges had been manufactured, the refrigerators had to be fitted and a section of reinforcement for the doors needed to be made. Once the refrigerators were put onto the platform, they remained there so that work could be done to make them operate with the floor.
120The door of the vehicle then needed to be held inside the profile of the car as it was manufactured so that when the skin was put on it lined up with the roof and side panels. The end frame of the door had zigzag shaped bits of steel welded inside them and those were supported at each end near the pillars.
121Looking at one of the photographs in exhibit 4,[32] Mr Ware identified a piece of metal angle iron which he called a “door stop”. It was his recollection that angle irons were temporarily fitted to the vehicle at the front and at the back to support the roof frame. He thought they were either 25 x 25 millimetre or 40 x 40 millimetre, but he could not remember. Mr Ware said the angle irons were put into the vehicle when they started fabricating the roof doorframe and not before. He said that was after the question mark shaped hinges were received on 29 February 2016. They remained in place until the door was virtually complete, even after the hydraulic arms were in place. Mr Ware said that the hydraulic arms were purchased on 4 March 2016, and were installed very shortly after that, maybe even on the same day.
[32] Exhibit 4; photograph at PACB page 244
122Exhibit 17[33] showed the door almost complete. The skin was temporarily attached to the outside and the doorstops had been removed.
[33] Exhibit 17; photograph in PACB page 311
123Mr Ware referred to a video taken of the door opening and closing and stated that it was taken on 8 March 2016.[34] It was Mr Ware’s evidence that following their installation, the hydraulics were likely only disconnected from the door frame when the frame was painted, but they were otherwise not removed.
[34] Exhibit 6
124Mr Ware said he recalled seeing the angle irons when they were in place, but did not know who fitted them, or whether he had given instructions in relation to them being affixed to the vehicle. Mr Ware estimated that the approximate length of the angle iron would have been around 200 millimetres and the depth of the angle iron was either 25 x 25 millimetres or 40 x 40 millimetres.
125Mr Ware was shown exhibit C.[35] In that photograph the angle iron could be seen. It was a silvery grey colour. Mr Ware said it protruded about 50 millimetres into the middle section of the vehicle on one side and overhung about 50 millimetres towards the rear on the other side. It did not protrude into the opening of the passenger door. Mr Ware referred to a photograph which he had marked up identifying what he believed the angle iron looked like, although the photograph was of the right rear door rather than the left.[36]
[35] Exhibit C; photograph at PACB page 244
[36] Exhibit D; photograph at PACB page 258; T495, L17 – T496, L20
126Mr Ware gave evidence about Dreamtech’s system for cutting angle iron in 2016. The process he instructed employees to use was to cut any metal in the workshop with the cold cut-off saw to make a clean square cut, then to use the linishing machine to smooth the cut edges. To his knowledge, he, Mr Scott, Mr Shaun Decorado (another employee) and the plaintiff all used that system.
127In cross-examination, Mr Ware agreed that he did not know what system the person who cut the angle iron followed before it was installed in the vehicle. The angle iron he saw did not have a jagged edge.
128Mr Ware believed the incident in which the plaintiff was injured occurred on 12 April 2016. He recalled he was on his way to the spray booth. He described his position in various ways as about “3 and 5 metres [away]”; in line with the Lincoln vehicle, about 4 metres behind the rear of the vehicle and “5 metres behind the bumper bar, at the rear of the vehicle, but in line with the left-hand side of the vehicle. Around about the left-hand rear taillight, but 5 metres behind it.” A diagram of the workshop and the location of the spray booth vis-à-vis the Lincoln vehicle, drawn by Mr Ware, was also tendered.[37]
[37] Exhibit 18, T564, L19-21
129Mr Ware said, “from my peripheral vision I saw some movement and I turned to see … [the plaintiff] on the balls of his feet after he had jumped from the back door of, of the vehicle about a metre to a metre and a half away from the vehicle.” He saw a “flash of someone moving”, and then as he turned, he saw the plaintiff “landing on his feet some distance from the vehicle”. In cross-examination, Mr Ware said he “saw movement out of … [his] peripheral vision” and “saw … [the plaintiff] landing on the balls of his feet”. He said it was “sharp in his mind”.
130Mr Ware recounted that he then saw the plaintiff stand up and turn around, he looked a bit stiff and had a nervous smile on his face. Mr Ware said the plaintiff did not say anything to him that day other than to express, just before he went home, that he was feeling a “bit stiff”. He said Mr Scott told him the plaintiff had reported the incident to him.
131In cross-examination, Mr Ware said he spoke with the plaintiff briefly to ask if he was okay, to which the plaintiff replied that he was.
132Mr Ware said the plaintiff was not wearing any welding gear and did not have any welding equipment with him when he saw him. There was no welding equipment near the vehicle or in his hand. Mr Ware accepted that he did not see what the plaintiff was doing in the vehicle before he saw him move out of the vehicle.
133When he continued to the spray booth, Mr Ware said the plaintiff “didn’t appear to be injured in any way or form at that point. He continued about his work for the rest of the day.”
134Mr Ware initially said the incident took about one to two minutes but in cross-examination, said it was under a minute.
135Mr Ware accepted that it was not possible to stand up in the vehicle in the section behind the rear pillar.
136Mr Ware said the following day, the plaintiff reported the incident to him and Mr Scott. The plaintiff was feeling “pretty sore” and was going to have to go and see a doctor. Mr Ware said, “for the next couple of weeks he was – he admitted that he probably hurt himself when he’d done the jumping from the car”.
137Mr Ware said the plaintiff made a WorkCover claim approximately one month later. In the month between the plaintiff’s injury and lodging the WorkCover claim, it was Mr Ware’s recollection that the plaintiff was put on light duties and was told not to push himself and only to do what he could.
138In cross-examination, Mr Ware said he considered the plaintiff to be a competent welder and did not require supervision. Despite this, he stated the plaintiff was not involved in a lot of welding work, and other employees, including himself, welded more often than the plaintiff.
139Mr Ware said he did not see what the plaintiff was doing in the vehicle that day, although it was his belief that the welding had been finished and the plaintiff therefore could not have been welding that day.
140In relation to the system of inspection at Dreamtech, it was put to Mr Ware that Dreamtech had no system to ensure that vehicles under construction or fabrication were inspected for potential metal hazards by way of protruding items which might have caught skin or clothing of a worker. Mr Ware’s evidence was he inspected the inside of the vehicles daily to ensure there were no potential metallic hazards protruding. He said the system in place was that all workers were to keep an eye out for hazards and advise each other and management if any were identified.
Missing witnesses
141The Authority did not call Mr Scott to give evidence.
142The plaintiff submitted that there was an unexplained failure to call Mr Scott, who would have been able to give evidence about the reporting of the injury, the knowledge of Mr Ware about what had been reported and the filling in of the Worker’s Injury Claim Form. It was submitted the Court should draw the inference that the evidence of Mr Scott would not have assisted the Authority’s case.
143The Authority submitted that no adverse inference ought to be drawn, or could be drawn, against Dreamtech because Dreamtech was an incorporated entity with two directors and one of the directors – Mr Ware – had given evidence. He had worked on the vehicle and had knowledge of the circumstances including the plaintiff’s exit from the vehicle. Further, Mr Ware’s evidence as to the progress of construction of the vehicle was unchallenged. There was no necessity to call Mr Scott to give evidence about completion of the Claim Form and the employer response form as those documents spoke for themselves. It was reasonable and consistent with the Authority’s obligations in civil proceedings to call Mr Ware only and no adverse inference should be drawn against the Authority for not calling Mr Scott.
144There are three conditions for the operation of the rule in Jones v Dunkel.[38] The missing witness would have been expected to be called by one party rather than another, their evidence would elucidate a particular matter and their absence is unexplained.[39]
[38] (1959) 101 CLR 298
[39]Payne v Parker [1976] 1 NSWLR 191 at 201-202 per Glass JA (albeit in a dissenting judgment but in a passage accepted as correctly stating the relevant principles); Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803
145In this instance, Mr Ware who, like Mr Scott, was a director of Dreamtech, was called to give evidence on behalf of the Authority. Mr Scott might have been called to give evidence on behalf of the Authority, but his evidence would not have assisted the resolution of the issues in dispute any more than Mr Ware’s did. First, the plaintiff said he reported the incident to Mr Scott on the day of his injury. That was not seriously challenged by the Authority. Second, any knowledge of Mr Ware about what had been reported was evidence best given by Mr Ware, not Mr Scott. Third, as the Authority submitted, the content of the Worker’s Injury Claim Form spoke for itself. Further, given that Mr Ware’s evidence also had some relevance to the direct events on the day the plaintiff was injured, it was appropriate he was called to give evidence. Given each of these matters, I am not prepared to draw an adverse inference against the Authority for not calling Mr Scott.
146The plaintiff also made a submission that Mr Shaun Decorado was not called to give evidence. Mr Decorado’s evidence could only have been relevant to the issue of whether there was a system of work in place in relation to the process of cutting angle iron and smoothing the edges with a linishing device. The plaintiff put the relevant system of work to Mr Ware and asked whether Mr Scott used it. The answer was that he did. Any inference that may have been drawn from evidence from Mr Decorado would have been to a like effect. His evidence was not going to elucidate any issue to a greater extent than the evidence which had already been given. At most, he may have used a different system, but that would not have been decisive. Again, I do not propose to draw any adverse inference against the Authority for not calling Mr Decorado.
Medical evidence
The Plaintiff’s treating practitioners’ reports
147Dr Peter Burr prepared two reports dated 25 November 2019 and 19 April 2021. In his first report he noted that in the early part of 2016, the plaintiff “was involved in an accident at work, where his feet were stuck under a car and he fell forward”.[40] The plaintiff felt pain and a tearing sensation in both Achilles tendons.
[40] Exhibit E
148He was initially managed with physiotherapy and massage; however, his symptoms persisted.[41]
[41] Exhibit E
149The plaintiff saw his chiropractor, Dr Adamopoulos, on 12 March 2016. Dr Adamopoulos recorded in his report dated 4 March 2021 that the plaintiff complained that “[w]hile working on a vehicle in an awkward twisted position, he attempted to exit the vehicle and he got snagged and jerked forward, landing heavily on his toes and forcefully stretching both Achilles”.[42] In a subsequent email to the plaintiff’s solicitor, Dr Adamopoulos recorded that his notes said: “Bilateral Achilles strained getting out of car, got snagged and pulled forward => landed heavily on toes and pulled both Achilles”. Dr Adamopoulos also noted that the plaintiff had been referred to his doctor for an assessment and to obtain a referral for an ultrasound.
[42] Exhibit G
150The plaintiff did not undergo the ultrasound at that stage and self-managed the injury with intermittent ice packs and Panadeine.[43]
[43] Exhibit G
151On 12 March 2016, the plaintiff also consulted with a general practitioner, Dr Kosaraju. She was not his usual general practitioner. The plaintiff reported to Dr Kosaraju that he had “pain on both lower legs on the back of his heels for 1 day”.[44] The doctor recorded the plaintiff had “jumped awkwardly from car at work”.[45] She also noted that he “felt immediate pain and unable to walk informed work seen chiro who advised US” (sic).[46]
[44] Exhibit 14, page 202
[45] Exhibit 14, page 202
[46] Exhibit 14, page 202.
152The plaintiff underwent an ultrasound of bilateral Achilles tendons, but not until 16 May 2016. The ultrasound concluded that he had “bilateral achilles tendinopathy, more prominent on the left side, with no evidence of a tear”.[47]
[47] Exhibit 14, page 123
153On 18 May 2016, the plaintiff consulted his usual general practitioner, Dr Burr. He discussed management of his injury and was referred for physiotherapy.[48]
[48] Exhibit 14, page 205
154When the plaintiff saw Dr Adamopoulos again on 21 May 2016, the clinical notes recorded that the plaintiff’s Achilles was observed to be inflamed on the ultrasound. Dr Adamopoulos recorded the plaintiff’s history, “following jumping out of limo and landing heavily in March 2016. See notes 12 March 2016.”[49]
[49] Exhibit 15
155In August 2016, the plaintiff saw a massage therapist, Mr Ron Griffiths. The history the plaintiff gave him was, “Peter presented with trauma to (L) and (R) achilles after jumping”.
156On 9 November 2016, the plaintiff consulted Dr Burr again and was referred for a further ultrasound.[50]
[50] Exhibit 14, page 208
157On 11 November 2016, the plaintiff was referred to Mr David Shepherd, orthopaedic surgeon specialising in feet and ankles.[51] Mr Shepherd, in his report, noted he had diagnosed the plaintiff with bilateral non-insertional Achilles tendinopathies. Mr Shepherd had obtained a history that the plaintiff had Achilles pain following an incident at work where his feet were stuck under a car, and he fell forward. He experienced a tearing sensation and pain at the back of his Achilles.[52]
[51] Exhibit 14, page 207
[52] Exhibit H, page 89
158The plaintiff underwent a further ultrasound of each foot on 14 November 2016. This concluded that he had bilateral Achilles tendinosis. There was linear intrasubstance hypoechoic change within the right Achilles tendon.[53]
[53] Exhibit 14, page 125
159In March 2017, bilateral Achilles debridement surgery was undertaken.[54]
[54] Exhibit E; Exhibit 14, page 127; Exhibit H
160The plaintiff’s recovery was slow and never complete due to chronic pain and exacerbation of depression.[55]
[55] Exhibit F
161Following several post-surgical reviews, Mr Shepherd last saw the plaintiff in June 2017.[56]
[56] Exhibit H
162A further bilateral Achilles ultrasound was performed on 31 October 2017. The conclusion was that the plaintiff was suffering from severe bilateral non-insertional Achilles tendinosis (left worse than right).
163On 16 November 2017, the plaintiff consulted Mr Otis Wang, foot, ankle and knee orthopaedic surgeon, seeking a second opinion in relation to his Achilles, having undergone bilateral Achilles surgery with Mr Shepperd in March 2017. In his report dated 21 April 2021, Mr Wang noted the plaintiff had experienced a difficult post-operative course despite ongoing physiotherapy. Repeat ultrasound confirmed the plaintiff had bilateral non-insertional Achilles tendinopathy. Mr Wang saw the plaintiff for a review consultation on 13 February 2018. He continued to have non-insertional tendinopathy on the left side.[57]
[57] Exhibit I, page 93
The Plaintiff’s medico-legal reports
164Dr Joseph Slesenger, specialist occupational physician, prepared a report dated 11 March 2021.[58] At the consultation with Dr Slesenger on 28 February 2021, the plaintiff had advised Dr Slesenger that he had been injured on 12 March 2016 at work with Dreamtech. The history provided by the plaintiff was that –
“… He was working alone inside the vehicle. The vehicle was at ground level. He advised that he was crouched. He advised that he was wearing a helmet and a loose-fitting T-shirt whilst welding (he usually wore a loose T-shirt to avoid sparks penetrating his clothing). He advised that as he exited the vehicle, the right side of his T-shirt caught on a piece of metal welded onto the chassis. He fell forwards and to maintain his balance, he put his left leg out, which twisted underneath the chassis of the vehicle and possibly fell onto his knees. His right foot also ended up under the chassis of the vehicle. He developed immediate pain in the posterior calf and into the Achilles.”[59]
[58] Exhibit J, page 101
[59] Exhibit J, page 103
165Mr Iain McLean prepared a report dated 18 March 2021 following examination of the plaintiff the same day. He recorded a history from the plaintiff that while he was –
“… working on 12 March, 2016 he was in the back of a vehicle kneeling and doing some welding; and then went to get out of the vehicle but in the process his shirt caught on an edge; so that he fell forwards initially with the weight through a flexed left knee and foot and then similarly onto the right leg and foot.”[60]
[60] Exhibit K, page 115
The Authority’s medico-legal reports
166The plaintiff saw Dr Graeme Doig on 1 March 2018 at the Authority’s request. The history he gave to Dr Doig was that he had been working at Dreamtech as a mechanic and coach builder and he sustained an injury to both heels on 12 April 2016. Dr Doig reported that –
“… He was in the back of a limousine when unfortunately; his shirt got caught on a piece of steel that was sticking out. He tried to jump out but his feet got caught under the sill of the vehicle, causing him to fall forwards, resulting in an acute stretching mechanism through his calves and Achilles tendons. … He managed to finish his shift and reported the problem as his pain failed to settle.”[61]
[61] Exhibit 20, page 24
167The plaintiff was further examined by Dr Doig on 29 January 2021, who prepared a further report dated 15 February 2021.[62] Dr Doig sought confirmation about the history of the plaintiff’s fall and his mechanism of injury. The plaintiff provided a different history to that provided when he was examined by Dr Doig on 1 March 2018:
“… He said he was about to exit the vehicle after welding with his helmet and visor in place. He wore a loose shirt. … [He] described a piece of metal which had been welded inside the vehicle which should not have been present. Unfortunately, upon exiting and carrying the welding equipment with the visor in place, the right side of his shirt caught on the piece of steel resulting in him twisting and losing balance, falling forwards. His left foot was out of the vehicle at the time and this resulted in the weight of his body causing an over-extension/dorsi-flexion mechanism through his ankles as he fell to the ground. He experienced immediate pain in both Achilles-tendon regions, particularly the left side.”
[62] Exhibit 21
168On 28 November 2018, the plaintiff was examined by Associate Professor Buzzard who prepared a report of the same date. In Professor Buzzard’s report, he recorded, in relation to the plaintiff’s mechanism of injury, “in April 2016 he was at work jumping awkwardly out of a car when he fell forwards, with his legs pinned under the car”.[63]
[63] Exhibit 23, page 66
169On 14 December 2018, the plaintiff was seen by Dr Steven Stern. Dr Stern recorded that –
“… he was welding inside a vehicle and he got up to get out of the back door. His shirt got caught on a piece of steel but he jumped out of the vehicle. His feet then got caught under the vehicle and fell forwards. Because both feet were trapped both Achilles tendons were extended.”[64]
[64] T283, L12-27
170Similarly, the plaintiff saw Mr Barmare at the request of the Authority on 11 June 2019. The history which Mr Barmare took was that –
“… [The plaintiff] was assembling a trailer for Dreamtech Conversions, he was trying to climb out of that vehicle and his shirt got caught on some steel and also his heel got caught in the side of the vehicle. He fell down and that led to stretching of his both tendo Achilles. He had pain and restriction of movement. He informed both his employers but unfortunately it was not taken care of. … .”[65]
[65] Exhibit 22, page 40
171On 20 April 2021, the plaintiff saw Dr Baynes. He provided an account of his injury that –
… at some point in 2016 he was on his knees inside a vehicle welding and was in the process of getting out the backdoor of the car whilst wearing his welding helmet and holding the welding gun when his shirt got caught on the frame of the car. He fell with his left foot sliding underneath the sill of the car and falling forward. He is not quite sure where his right foot went. He advises that he had a sudden onset of pain in the left Achilles tendon. As he stood up he then noted he also had pain in the right Achilles tendon. He was unable to continue working and reported his injury to the office and went home. Due to worsening pain, he ultimately attended a doctor and was referred for an ultrasound. …”[66]
[66] Exhibit 19, page 18
Submissions
The Plaintiff’s submissions
172In relation to the credit and reliability of the plaintiff, it was submitted the plaintiff was an honest person who did not deliberately mislead when giving his evidence. The plaintiff’s memory had deteriorated, but contrary to the Authority’s submission that the plaintiff was unreliable and had reconstructed his evidence, the plaintiff’s memory of events was not that bad. In giving evidence about the mechanism of his injury, the plaintiff did not make any significant concessions. His account of how he was injured, including the account he gave to Ms Legg, remained consistent. Further, although his memory was challenged, he remembered the key elements of his accident. Similarly, his evidence that he was welding inside the vehicle also remained constant. To the extent there were inconsistencies about the fall or where his hand or leg were, they were not of any significance. Some variation in the accounts given to different people was to be expected and the content of clinical notes had to be considered in the context in which the notes were prepared and should not be taken literally.
173With respect to Mr Ware’s evidence, it was submitted that his evidence was of limited relevance in relation to the mechanism of injury because he conceded he did not know, and could not see, what the plaintiff was doing inside the vehicle. He could not say how the plaintiff was injured or how he tore his t-shirt. To the extent he said he saw someone landing, thereby perhaps bolstering the conclusion that the plaintiff had jumped, this evidence should be rejected. His memory of events surrounding the plaintiff’s injury was not clear and he did not make any notes of records of what happened at the time. Further, it was submitted that Mr Ware’s evidence about the angle iron was unclear with respect to the date he saw it or how closely he inspected it.
174Counsel for the plaintiff made oral submissions in relation to the substantive. He submitted there were four essential issues to be determined. First, whether the plaintiff proceeded to exit the vehicle from the rear and, in doing so, caught his clothing on a metal piece, causing him to fall outside the vehicle. Second, whether Dreamtech breached the duty of care it owed to the plaintiff to provide a reasonably safe place and system of work. Third, if Dreamtech was negligent, whether the plaintiff was guilty of contributory negligence. Fourth, if Dreamtech was negligent, what damages should be awarded.
175In relation to the first issue, it was submitted that on the day he was injured, the plaintiff was welding in the back of the vehicle. He proceeded to exit the vehicle from the rear, whereupon his clothing caught on a metal piece, causing him to fall outside the vehicle. The angle iron was the only structure upon which the plaintiff was likely to have caught himself. It was unlikely there was another piece of metal in the vicinity.
176The plaintiff relied on his evidence that something grabbed his shirt and he fell. He also relied on evidence from Ms Legg that on the day he was injured, the plaintiff’s t-shirt was ripped, and he had a scratch on his skin; the plaintiff looked pale and was limping, and she massaged his legs. She took him to the Casey Super Clinic and to see Dr Adamopoulos the following day. The plaintiff also relied on the clinical notes of Dr Adamopoulos dated 12 March 2016; the clinical notes from the Casey Super Clinic dated 12 March 2016; the Workers’ Injury Claim Form dated 16 May 2016 signed 23 May 2016, and the Employers’ Injury Claim Report dated 23 May 2016.
177Second, counsel for the plaintiff submitted Dreamtech breached the duty of care it owed to the plaintiff to provide a reasonably safe place of work. It was reasonably foreseeable that a person moving within the relatively confined space of an unfinished vehicle, could contact a protruding piece of angle iron. That risk was not far-fetched or fanciful. If the risk of injury was not far-fetched or fanciful, then the employer had a non-delegable duty to take precautions to guard against the foreseeable risk of injury and to provide a reasonably safe system of work. The precautions which could have been taken to guard against the foreseeable risk of injury included warning the plaintiff, taking action to grind down the piece of metal and tying a rag to the end of the piece of metal to make sure the protrusion was less hazardous. The evidence of the system of work and inspection of hazards was ad hoc and haphazard and therefore the employer breached the duty of care that it owed.
178Third, it was submitted that if Dreamtech was negligent, there was no contributory negligence on the part of the plaintiff. The plaintiff did not see the angle iron or put it in place. It is unclear how sharp or protruding the angle iron was, but it was sharp enough for the plaintiff to catch himself on it. It was a hidden hazard about which he was not warned. The plaintiff referred to Kirriwellage v Best & Less Pty Ltd,[67] Mayhew v Lewington’s Transport Pty Ltd[68] and Czatyrko v Edith Cowan University[69] and submitted that because there was a risk of injury to the plaintiff, Dreamtech was required to take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminated the risk, or by the provision of adequate safeguards.[70] Further, it was reasonable for the plaintiff to exit the vehicle holding welding equipment and his helmet. There was no evidence it was common practice for him to jump out of such vehicles. There was no reason for the plaintiff to suspect he needed to be on his guard as he passed the pillar.
[115] T16, L5-7; T24, L14-20
254It was submitted such a risk was not far-fetched or fanciful.
255That characterisation of the risk however, does not properly take into account the source of the risk of harm.
256In my view, the risk, properly characterised, is broader. When the general type of harm and overall circumstances in which the harm was suffered are considered, the risk is a risk of an employee catching clothing on a piece of metal inside a confined, partially fabricated vehicle and becoming unbalanced, resulting in a fall from the vehicle and consequent personal injury.
257The Authority submitted that because the angle iron was neither sharp nor protruding, it was not inherently dangerous and did not pose a danger or expose the plaintiff, to unnecessary risk. The risk of injury occurring was “far-fetched or fanciful”.[116] Consequently, reasonable care did not require Dreamtech to take any steps to eliminate or minimise the risk of injury. The plaintiff argued to the contrary.
[116] Wyong Shire Council v Shirt (supra)
258I have accepted that the angle iron was visible, not sharp and did not protrude into the body of the vehicle. Nevertheless, it did protrude parallel with the side of the vehicle. While it is difficult to conceive how a person might have caught their clothing on such a protrusion, such a risk was not too far-fetched or fanciful. It is also not too far-fetched to conclude that if a person were to catch themselves at a position near the rear exit of the vehicle, the person may fall and sustain injury. Although the risk may have been minimal, even remote, it was nevertheless reasonably foreseeable.
259The plaintiff contended that once it was accepted that the plaintiff’s t-shirt became caught on the protruding angle iron, it followed that he was not provided with a safe system of work and there had been a breach of the duty of care owed by Dreamtech as his employer not to expose him to unnecessary risk of injury. The fact that there was a protruding or sharp-edged piece of metal in the vehicle was enough, of itself, so it was submitted, for Dreamtech to be found negligent, particularly, because the plaintiff was not warned about it or protected against the risk of injury in some other way.
260The plaintiff relied on the decision of Husson.[117] In that case, the trial judge found that the mere presence of a protrusion on a column in a cooling cabinet indicated that Alcoa had been negligent. Any maintenance works in the cabinet should have been carried out so as not to leave a protrusion, particularly as it was a confined space in which the plaintiff was working, a fact that Alcoa knew. The Court of Appeal upheld the decision.
[117] Supra
261The Authority submitted that unlike in Husson,[118] the presence of a protrusion, given the incomplete metal fabrication work which was being undertaken in the Lincoln vehicle at the time the plaintiff was injured, was not evidence that Dreamtech breached the duty of care that it owed to its servants and/or agents not to expose them to any unnecessary risk of injury. A finding that there was a protruding piece of metal present did not make negligence any more or less likely. The plaintiff had failed to discharge the burden of proof. The protrusion had a necessary function as part of the system of work to act as a doorstop to support the hydraulic doors until they had been completely fitted and locked in position. That purpose was not challenged by the plaintiff. Further, the system of work was that angle iron would have been cut with a saw and smoothed off with a linisher and there was no evidence that did not occur on this occasion.
[118] Supra
262I accept the Authority’s submission that the current case differs from the circumstances in Husson,[119] and the mere presence of the angle iron does not establish that Dreamtech breached the duty of care it owed to the plaintiff. The plaintiff was aware the vehicle was in the process of being modified and was not complete. It was not reasonable to expect that there might not have been protruding pieces of metal. The angle iron was a necessary part of the fabrication process of the vehicle, acting as a doorstop. It was not jagged or sharp and was in a position parallel to the door pillar. It was grey, so it stood out in comparison with the blue steel beam. It protruded only 50 millimetres past the blue beam towards the rear of the vehicle, parallel with the side panel, and the end was still 10 centimetres from the rear door opening. Dreamtech had a system of work which required that the angle iron be cut with a saw and smoothed off with a linisher. There was no evidence that did not occur on this occasion.
[119] Supra
263Having accepted that there was a reasonably foreseeable risk of injury and found that the reasoning in Husson[120] does not apply, before a finding could be made for the plaintiff, the plaintiff would also need to establish that there was a reasonably practicable means of avoiding the risk which might have been taken and which Dreamtech failed to employ.
Did Dreamtech fail to take reasonable precautions in response to the reasonably foreseeable risk of harm?
[120] Supra
264To determine whether Dreamtech failed to take reasonable precautions it is first necessary to consider what reasonable precautions could have been taken that would have reduced or eliminated the risk of harm to the plaintiff. Assuming there are such reasonable precautions, it is then necessary to weigh the probability that the risk of injury will eventuate and the seriousness of the injury likely to ensue if it does, against the cost/burden, difficulty and inconvenience of taking precautions to guard against the risk of harm.[121]
[121]Wyong Shire Council v Shirt (supra) at 47; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at paragraph [201]; Swain v Waverley Municipal Council (2005) 220 CLR 517 at paragraphs [108]-[109] per Gummow J and Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18 at 26 per Dixon CJ and Kitto J in the context of an employer’s obligation to an employee
265The plaintiff said that Dreamtech was negligent by failing to put in place a safe system of work. It said appropriate precautions which could have been taken by Dreamtech were to provide warnings to the plaintiff; to make the presence of the angle iron clear by marking it in some way with a rag; by grinding the edges of the angle iron, or by covering the angle iron with masking tape. I disagree.
266The plaintiff suggested that a reasonable precaution which could have been taken to prevent injury was for Dreamtech to warn the plaintiff about the presence of the angle iron. On the other hand, the Authority contended this was a case where the plaintiff was not, or ought not to have been, ignorant of the presence of the angle iron. Using reasonable care, he either did or could have discovered the angle iron. The protrusion was of a type which was readily anticipated in a partially complete vehicle. The argument was essentially that the protrusion was obvious.
267In Romeo,[122] a majority of the High Court considered the obviousness of risk posed by an unfenced cliff as a factor relevant to breach. A requirement that entrants be warned, or that a fence be installed, was therefore “neither reasonable nor just”.[123]
[122] (Supra) at 447
[123] Romeo (supra) at 478 per Kirby J
268Notwithstanding Romeo, in Vairy v Wyong Shire Council,[124] Hayne J stressed that obviousness of risk is not determinative of questions of breach of duty.[125] Further, in subsequent cases, the High Court explained that what reasonableness requires depends on the facts of each case and each case must be considered on its merits. The enquiry is what precautions, if any, a reasonable person in Dreamtech’s position would take in response to a reasonably foreseeable risk of harm.
[124] Supra
[125] Vairy (supra) at paragraph [162]
269In Thompson v Woolworths (Qld) Pty Ltd,[126] the High Court explained that the obviousness of a risk and the remoteness of other people failing to observe or avoid it are factors that are relevant to an assessment of what reasonableness requires as a response. For some risks reasonableness may require no response. If the obviousness of a risk and the reasonableness of an expectation that a person will take care for their own safety were irrelevant, as the High Court said, “community standards of reasonable behaviour would require radical alteration”.[127]
[126] (2005) 221 CLR 234
[127] (Ibid) at paragraphs [35]-[37]
270In an employment context, the High Court has adopted the position that because the obligation of an employer is to provide a safe system of work, if the precautions would be simple and inexpensive, the reasonable employer would take all such precautions even if the risk of harm is low.[128]
[128]Miletic v Capital Territory Health Commission (1995) 130 ALR 591 at 594; Czatyrko v Edith Cowan University (supra) at paragraphs [13] and [15]
271In relation to whether a warning was a reasonable precaution, I do not consider, in the context and circumstances of this case, that it was a reasonable precaution that would have protected the plaintiff from the risk of harm.
272First, the angle iron was visible.
273Second, I do not accept the plaintiff’s evidence that he did not see the angle iron. Despite what the plaintiff said in evidence, his evidence was unreliable. He had no genuine recollection of whether he saw the angle iron prior to the day of his injury or not. He worked inside the vehicle over many days and had been required to enter and exit it repeatedly and necessarily passed the position of the angle iron. The angle iron was a different colour to the blue beam. Further, the plaintiff was a careful person in the work he carried out. He worked in cramped and confined spaces quite often. He installed the steel beams into the roof and knew to be careful about them. He knew the vehicle was a work in progress. Although he said he did not install the angle iron, when asked, “Prior to your accident, had you ever noticed that item before?” rather than simply saying he had not seen it, he responded, “It never stood out, no”.
274The inference I draw from all the facts is the plaintiff had observed the angle iron, but he had not considered it to be a hazard and therefore had not taken much notice of it. This was consistent with his later evidence when he said: “Obviously you can see the angle iron protruding in the large entrance from – I am looking at the pictures. But it wasn’t something that I was aware of that would be a hazard.” On the day he was injured, the plaintiff just did not keep a proper lookout as he moved in the vehicle.
275Third, even if the plaintiff did not see the angle iron, I do not consider it was reasonable for a person working inside an unfinished partially fabricated vehicle, to expect a warning. Because the vehicle was incomplete, it was reasonable to expect that it might have had protrusions and that a person would be required to take care for their own safety.
276Fourth, if there was to be a warning given, it is hard to comprehend what that warning might have been, other than for the plaintiff to take reasonable care for his own safety.
277Even if providing a warning was reasonable, when the totality of the evidence is considered and when the probability of serious injury, together with the seriousness of any injury which might eventuate are weighed against the cost and burden of taking precautions, the failure to provide a warning does not constitute a breach of duty.
278Although I have found that there was a reasonably foreseeable risk of injury, the probability of serious injury arising from catching a t-shirt on the angle iron and falling out of the vehicle was extremely low, almost negligible. There was a piece of metal inside the vehicle, but it was not sharp. The angle iron did not protrude towards the middle of the vehicle. It was parallel to the side of the vehicle, and it protruded only about 50 millimetres. It was visible and it was unlikely that clothing would have been caught on it by a person taking reasonable care for their own safety. Neither the plaintiff nor Mr Ware said that this type of protrusion was regularly encountered. In those circumstances, the chance of harm was so small that it is likely reasonable care did not require steps to be taken to eliminate the risk.[129] Further, the seriousness of the consequences if the risk of harm arose, in circumstances where I have found that the angle iron was not sharp, was also extremely low. These matters point strongly against a failure to provide a warning constituting a breach of the duty of care owed.
[129]Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2) [1967] 1 AC 617 at 642-3 per Lord Reid
279Against the low probability of serious harm arising and the unlikelihood of the consequences being serious, must however, be weighed the cost and burden of taking steps to alleviate the risk of harm. The evidence disclosed that Dreamtech had taken steps to enhance the visibility of the angle iron by using a grey angle iron against a blue beam. The angle iron was readily visible to the plaintiff and was a usual incident of the job. Further, there was no evidence the angle iron, if it was sharp, had not been ground or linished.
280Next, while marking the protruding metal may have provided a visual warning to the plaintiff, this would not have prevented injury if the plaintiff was not looking where he was moving, which was the case on his version of events. The plaintiff, in cross-examination, initially said he did not look inside the vehicle before he entered. He later said he looked through the back door before he went into the vehicle. He had “a woman’s look type thing”. As he entered the vehicle, his focus was on where he was going to weld. He said, “I wasn’t looking at my surroundings”. He was wearing a welding helmet which was quite small, and he did not have a lot of side vision. He did not inspect the angle iron and he did not think he ever looked at it. But he said: “Obviously you can see the angle iron protruding in the large entrance from – I am looking at the pictures. But it wasn’t something that I was aware of that would be a hazard.” In my view, marking the angle iron with either a rag or with masking tape, would have made no difference to whether the plaintiff caught his t-shirt in circumstances where the plaintiff was not looking where he was moving.
281Similarly, while the plaintiff submitted that Dreamtech could have ground and linished the edges of the angle iron with a linisher to ensure it was not sharp, as the Authority correctly pointed out, that was the system of work generally adopted by Dreamtech in any event, and there was no evidence it was not followed in this instance. More than that though, I have found that the angle iron was not sharp. It is unlikely that even if the angle iron had been ground and linished, that taking that precaution would have affected the outcome at all.
282In my view, given the nature of the work being undertaken (metal fabrication inside a vehicle), the visibility of the angle iron, the fact that it was not sharp or protruding into the inside of the vehicle, as well as the many years of experience the plaintiff possessed and the necessity of the angle iron to temporarily support the roof frame it was not necessary for Dreamtech to take any particular precautions beyond what it did, to reduce or eliminate the risk of harm to the plaintiff. Consequently, I find that there was no negligence on the part of Dreamtech.
If Dreamtech breached its duty of care, did the breach of duty cause the Plaintiff’s fall?
283If, contrary to the conclusion I have reached, Dreamtech did breach the duty of care that it owed, it is necessary to consider whether Dreamtech’s breach of duty caused the plaintiff to sustain injury.
284Notwithstanding the case pleaded by the plaintiff that his injuries arose by reason of catching his t-shirt on a sharp protruding piece of angle iron in the unfinished vehicle, the plaintiff did not address the issue of causation in its submissions. His case proceeded from the standpoint that if it established negligence, it was entitled to an award of damages.
285It was submitted by the Authority that if Dreamtech was negligent, the incident/injury did not arise out of, or was not caused by, Dreamtech’s negligence. The Authority pointed to the fact that Dreamtech had an appropriate system of work in place for cutting and smoothing pieces of angle iron; the angle iron was not jagged; the angle iron was not inherently dangerous; it ran parallel to the door frame and did not protrude into the rear door opening; the hooped beam restricted close access to the angle iron; the angle iron contrasted with the blue steel beam; the angle iron was a necessary part of the construction of the vehicle; the position of the angle iron meant it did not require flagging with a rag or paint, and even if the angle iron had been flagged, because the plaintiff was wearing a welding helmet, he would not have seen it in any event. If it is correct that the existence of deficiencies in Dreamtech’s system of work did not cause the plaintiff’s injury, then causation is not made out.
286It is convenient therefore to now deal with the question of causation.
287The critical question in the causation enquiry is whether Dreamtech’s negligence caused the plaintiff’s injury.[130] This requires consideration as a matter of fact as to whether the relationship between the event in question and the plaintiff’s loss is capable of being causal. If it is, the next question is whether it should be held to be causal, or a cause of the loss. If damage would have occurred notwithstanding the negligent act or omission, the act or omission is not a cause.[131]
[130] Husson (supra)
[131] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 530
288The “but for” test is a useful way of excluding a cause if the answer to the question it poses is that the accident would have occurred in the same way in any event.[132] However, it has its limitations in cases where there are two or more events which would each be sufficient to result in a plaintiff’s injury. The result could be that, contrary to common sense, neither is the cause.[133]
[132] March v E & MH Stramare Pty Ltd (ibid) at 522
[133]March v E & MH Stramare Pty Ltd (ibid) at 516; Griffin v Victorian Workcover Authority [2016] VSC 101 at paragraph [397] per Zammit J
289To overcome this hurdle, the High Court has adopted the commonsense test of causation. That is, causation is essentially a question of fact to be answered by reference to commonsense and experience.[134] Where the risk of harm is caused by one of two or more causes, the plaintiff will fail to establish liability unless the plaintiff can establish which caused the actual harm.[135]
[134] March v E & MH Stramare Pty Ltd (supra)
[135] Amaca Pty Ltd v Ellis (2010) 240 CLR 111
290The plaintiff bears the burden of proof. The burden may be discharged by inferences drawn from all the circumstances.[136]
[136] Naxakis v Western General Hospital (1999) 197 CLR 269 at 269, 282-4 and 288
291In deciding the issue of causation in this case, I have adopted the approach identified by the Full Court of the Supreme Court of Victoria in Transport Industries Insurance Co Ltd v Longmuir,[137] a case where inferences loomed large in determination of whether a fire was deliberately lit. That is, I have evaluated the totality of the evidence to fairly consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. As Tadgell JA said in that case:
“… The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”[138]
[137] [1997] 1 VR 125
[138] (Ibid) at 141, citing Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 per Mummery J
292It is impossible to espouse a formula to measure probabilities; however, in analysing questions of causation:
“… the trier of fact is entitled (indeed encouraged) to take a ‘robust and pragmatic approach’ to proof of causation.”[139]
[139]See the High Court in Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 and the New South Wales Court of Appeal in Bendix Mintex Pty Ltd and Ors v Barnes (1987) 42 NSWLR 307 at 318 per Mason J
293Where there are competing hypotheses as to what caused the plaintiff’s injuries, to satisfy me that the negligent conduct of Dreamtech was a cause of the injury suffered by the plaintiff, the plaintiff must establish that the more probable inference appearing from the evidence is that the plaintiff’s injuries were caused by Dreamtech’s negligence, as opposed to some other cause. If the evidence gives rise to competing inferences, neither of which is more probable than the other, the plaintiff will not discharge the burden of proof and establish the hypothesis with the required degree of probability.[140] The plaintiff must demonstrate that the competing inference is less likely.[141]
[140]Jones v Dunkel (supra) per Dixon CJ at 305; TC v State of New South Wales [2000] NSWSC 292 at paragraph [50]; Tabet v Gett (2010) 240 CLR 537 at paragraph [111] per Kiefel J
[141] Lithgow City Council v Jackson (2011) 244 CLR 352 at paragraph [94] per Crennan J
294A causal connection will not be established if the plaintiff would have persisted in a course of conduct regardless of the breach of duty (for instance a failure to warn).[142]
[142] Chappel v Hart (1998) 195 CLR 232; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
295Based on the totality of the evidence, for the reasons which follow I do not accept that the plaintiff sustained the injuries to his ankles and heels because of Dreamtech’s negligence.
296I have found that the angle iron was visible. I have also accepted that although it was not sharp, the angle iron did protrude, albeit parallel to the side of the vehicle. Having made those findings, I accept that the most probable object upon which the plaintiff caught his t-shirt was the angle iron. No other protruding metal object was identified by either party. The plaintiff’s evidence was that he caught and ripped his t-shirt and that was not seriously challenged in cross-examination.
297The essence of the plaintiff’s case and his account of the mechanism of his injury suggested that catching his t-shirt on the angle iron was the catalyst for his fall from the vehicle and the cause of his subsequent injuries. There were, however, other alternate competing hypotheses as to how the plaintiff sustained his injuries.
298The Authority suggested that the plaintiff had jumped from the vehicle and slipped on the floor and caught and ripped his t-shirt on the angle iron after he had commenced to jump. This hypothesis was consistent with the contemporaneous accounts the plaintiff gave to several medical or other health practitioners.
299I found Ms Legg to be truthful and reliable. The evidence she gave about what she was told by the plaintiff on the day he was injured also suggested that the plaintiff may have caught and ripped his t-shirt after he had “got out” of the vehicle.
300In paragraph 13 of the plaintiff’s serious injury affidavit sworn 2 September 2019, the plaintiff said he –
“… went to get out of the rear of the vehicle and as I proceeded out on my knees (as I had to) I felt my shirt catch on something which knocked me off balance. As I was unbalanced, I was falling forward and would have hit my head first. I tried to arrest this fall and reached out with one hand and grabbed the door opening. I managed to get one foot out but I was still falling. I got the other foot out and they went under the car and I fell down to the ground onto my knees. My feet went under the car at a funny angle. I felt and heard a cracking sound.”
301Nothing was included in the serious injury affidavit about the plaintiff having jumped from the vehicle. However, contemporaneous accounts by the plaintiff to treating health practitioners and subsequent reports to various medico-legal experts of what occurred, suggested that the plaintiff had in fact jumped.
302Dr Adamopoulos’ note recorded that “bilateral Achilles strained getting out of car … got snagged and pulled forward and landed heavily on toes and pulled both Achilles”. The plaintiff had told Dr Adamopoulos on 12 March 2016 that he fell out of the back of the vehicle and tried not to land awkwardly, but when he was cross-examined, he said that he did not know or recall how he landed. The plaintiff explained the mechanism of his fall by saying he knew that one foot was stuck under the sill of the car, and he over-extended the other foot. The reference to “got snagged” was not explained in terms of the plaintiff catching his t-shirt.
303Similarly, the plaintiff said, in relation to the note Dr Adamopoulos had made on 21 May 2016 recording that the plaintiff had jumped from the vehicle, he did not know what would be called a jump, but he could not have jumped because he was not on his feet. He said this notwithstanding, he had already described getting up off his knees to get out the door.
304The plaintiff also told Dr Kosaraju on 12 March 2016 that he had jumped out of the vehicle. When cross-examined about this, the plaintiff accepted that a jump was a deliberate, controlled movement, whereas a fall was “out of control”. He did not know how the doctor had worded the description of his accident or what he told the doctor, but he was “pretty sure” he did not tell her that he had jumped because he could not jump out of the car, especially with a welding helmet on.
305When the plaintiff saw Mr Griffiths, he recorded the plaintiff had “presented with trauma on left and right Achilles after jumping”. When cross-examined about this, the plaintiff said, “Maybe that’s the way I expressed how, what happened, but it wasn’t actually how it happened. I fell out of the vehicle. I didn’t jump out of the doorway, having a welder and a helmet on.”
306The WorkCover Claim Form stated, “working in rear of vehicle climbing out of rear shirt caught on steel landed on balls of my feet tearing both Achilles” (sic). Although it made no reference to jumping, that does not determine that the plaintiff did not jump from the vehicle. The Claim Form, prepared in May 2016, referred to the accident occurring on 12 April 2016,[143] when in fact that was not the date of the accident. It is possible the Claim Form was completed by Mr Scott, but it had to have been prepared from information provided by the plaintiff. Either the plaintiff was unable to remember the date of the injury, or he did not check the details in the Claim Form and assumed the information contained in it was correct. Given how careful the plaintiff was generally, it is more likely the plaintiff’s memory was unreliable and he jumped from the vehicle.
[143] Exhibit B
307The accounts the plaintiff gave to the medico-legal experts about how he was injured also made consistent reference to him jumping out of the vehicle rather than falling. The plaintiff accepted in cross-examination that he may have described his motion as a “jump” to Dr Doig. He also said that because the floor was very slippery, in the forward motioning as he fell, his feet may have got stuck under the sill, or one of them at least, and then, because he did not have flexibility, it fractured his Achilles.
308He accepted he told Professor Buzzard he was injured in April 2016 and the injury occurred “at work jumping awkward out of a car when he fell forwards, with his legs pinned under the car”.[144]
[144] T283, L1-11; Exhibit 23, page 66
309The plaintiff also agreed he may have said to Dr Stern that “he was welding inside a vehicle, and he got up to get out of the back door. His shirt got caught on a piece of steel, but he jumped out of the vehicle. His feet then got caught under the vehicle and fell forwards. Because both feet were trapped both Achilles tendons were extended.”
310In relation to the account the plaintiff gave to Dr Barware, the plaintiff did not think it was quite right. He said, “I didn’t get my foot snagged in the vehicle, underneath the vehicle.”
311The mechanism of injury described by the plaintiff in his affidavit was hard to comprehend and was also inconsistent with the plaintiff’s evidence at trial. At trial, the plaintiff said he did not put his hand out to arrest his fall. He also did not describe any movement of his feet or how he got his left and right legs out before he fell from the vehicle. He said he caught his t-shirt, then fell, but given the unreliability of his memory overall, I prefer his earlier contemporaneous accounts that he jumped from the vehicle and injured himself.
312I accept the plaintiff may have caught his t-shirt on the angle iron; however, I am not satisfied that catching his t-shirt necessarily occurred as he was proceeding to the exit or that it unbalanced the plaintiff, at least not in a way which had any impact on his subsequent motion.
313The plaintiff said in evidence that:
“I was basically – exit the vehicle from the rear and I still had my welding helmet on and that’s when I caught my shirt, just on the lower ribs as I was exiting, it took me off balance and I fell out the door.”
314However, he later said:
“As I started to - because I was trying to break - balance myself, getting out of the vehicle because it’s there’s three or four different levels of vary that you had to try to navigate. And as I proceeded to get out the back door I felt something grab me and I was - that was in the motion of getting out of the back door when that happened and then it put me off balance because I had the welder and I had the helmet on so – and then it happened so quickly.”
315On his own evidence, he caught his t-shirt when he was in the motion of getting out of the back door. His contemporaneous accounts of how he got out the back door were that he jumped. Those accounts were provided at a time when the events were clear in the plaintiff’s mind. Because the plaintiff’s subsequent recollections were unreliable, I prefer the contemporaneous accounts that the plaintiff jumped from the vehicle, landing awkwardly, catching his feet under the sill of the vehicle, and suffering the injuries to his ankles and heels.
316The plaintiff had a very dim memory of catching his t-shirt. He did not see the angle iron at the time. He assumed the angle iron was jagged or sharp, but I have found that was not the case. The evidence left open several views of the facts. The plaintiff said he was moving slowly, at a “snail’s pace” before he reached the exit and when he caught his t-shirt. I accept the Authority’s submission that this makes it unlikely the plaintiff caught and tore his t-shirt at this point or, if he did, that it caused him to over balance. Similarly, the plaintiff could not say with any certainty that he did not tear his t-shirt after he fell on the floor.
317Standing back and viewing the totality of the evidence from a distance, making an informed, considered, qualitative appreciation of the whole as Tadgell JA in Longmuir[145] stated was necessary, the evidence cast doubt on the plaintiff’s entire account of the mechanism of his injury. The evidence certainly did not rise to the level of the plaintiff demonstrating that the competing inferences were less likely that the inference for which he contended.
[145] Supra
318In my view, although the plaintiff maintained that he caught his t-shirt as he was moving slowly towards the exit of the vehicle and this caused him to become overbalanced and then to fall from the vehicle, it was at least equally as probable that the plaintiff caught his t-shirt after he had commenced the motion of jumping from the vehicle. The commonsense cause of the injury was the jump, not the plaintiff catching his t-shirt. Because the plaintiff jumped and landed awkwardly, he caught his feet under the sill of the vehicle and suffered the injuries to his ankles and heels.
319As outlined above, it is not enough for the plaintiff to show that harm might have been caused by Dreamtech’s conduct.[146] To accept one version in favour of the other in those circumstances would give rise to a decision based purely on conjecture.[147] Having determined that it is at least as probable that the plaintiff suffered the injuries to his ankles and heels because he jumped from the vehicle and landed awkwardly, catching his feet under the sill of the vehicle, and having found the plaintiff’s evidence about when and how he caught his t-shirt to be unreliable, I have formed the view that the totality of the evidence does not enable me to be satisfied, on the balance of probabilities, that what caused the plaintiff to fall and then in turn to sustain injuries, was Dreamtech’s negligent system of work. The plaintiff’s injuries were caused by his own actions in jumping from the vehicle, not any negligence on the part of Dreamtech. The plaintiff has not discharged the onus he bears.
[146] X & Y v Pal (By Her Tutor X) (1991) 23 NSWLR 26 at 48 per Clarke JA
[147]Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1, cited with approval in Luxton v Vines (1952) 85 CLR 352 at 358
Conclusion
320Having determined that Dreamtech did not breach the duty of care it owed to the plaintiff and that even if it did, Dreamtech’s negligence did not cause the plaintiff’s injury, it is unnecessary to consider questions of contributory negligence and damages.
321Accordingly, I dismiss the plaintiff’s claim.
322There will be judgment for the Authority against the plaintiff.
323I shall hear the parties in relation to costs.
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