Gangi v Boral Resources (NSW) Pty Limited (No 2)
[2013] NSWSC 569
•17 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Gangi v Boral Resources (NSW) Pty Limited (No 2) [2013] NSWSC 569 Hearing dates: 10 April 2012, 4 February 2013, 5 February 2013, 6 February 2013, 7 February 2013, 8 February 2013, 11 February 2013, 12 February 2013, 13 February 2013, 14 February 2013, 15 February 2013, 18 February 2013, 19 February 2013 Decision date: 17 May 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Judgment for Mr Gangi.
The parties must undertake the resulting mathematical calculation of damages in accordance with the conclusions which have been reached on the various matters dealt with in the judgment. They should provide short minutes within 21 days. The order should include an order that:
All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
The usual order as to costs is that they follow the event, which in this case is an order in favour of Mr Gangi, as agreed or assessed. If the parties wish to be heard on costs they should approach.
Catchwords: TORTS - negligence - concrete batching plant - plant collapse onto truck - bin collapse - scope of duty of care - whether risk of harm arising from collapse was foreseeable - exposure to significant risk - constructive knowledge of risk - whether risk ought to have been known - systems of work at the plant - how the plant was maintained - deficiencies in systems - bin support structure required maintenance before collapse - bin support system - expert evidence - s 5B Civil Liability Act 2002 - causation - s 5D Civil Liability Act 2002 - reasonable care was required - plaintiff's injuries - credibility - medical records - expert evidence - damages - physical and psychological injuries - economic losses - orders
EVIDENCE - privilege - experts not given access to relevant information - inferences drawn against defendantLegislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Evidence Act 1995Cases Cited: Christian v R [2012] NSWCCA 34
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Mason v Demasi [2009] NSWCA 227
McGuinness v State of New South Wales [2009] NSWSC 40; (2009) 73 NSWLR 104
Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Roads and Traffic Authority of New South
Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316
Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263; (2009) 77 NSWLR 360
Wilson v Nilepac Pty Ltd [2011] NSWCA 63
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 4Category: Principal judgment Parties: Salvatore Gangi (Plaintiff)
Boral Resources (NSW) Pty Limited (Defendant)Representation: Counsel:
Mr DJ Russell SC with Mr N Ghabar (Plaintiff)
Mr MT McCulloch SC with Mr RG Gambi (Defendant)
Solicitors:
Daniela Sicurella (Plaintiff)
Colin Davidson, Davidson Legal (Defendant)
File Number(s): 2010/346723 Publication restriction: None
Judgment
By an amended statement of claim filed in Court when the hearing commenced in April 2012 the plaintiff, Mr Gangi, pursued proceedings in negligence against Boral Resources (NSW) Pty Ltd ('Boral'), the occupier of a concrete batching plant located at Artarmon. He claims damages for physical and psychological injuries, as well as economic losses he claims to have suffered after part of the plant collapsed onto the truck that he was driving on 14 December 2007. Boral admitted that it owed Mr Gangi a duty of care, but amongst other things denied that it owed him the duty pleaded, that the alleged risk was foreseeable, or that it caused his injuries and losses.
The hearing was adjourned and resumed in February 2013, so that Mr Gangi could deal with recently served evidence, which revealed information which had previously not been disclosed to him about the collapse and its cause, about which further expert opinions were then obtained.
At the hearing it emerged that Mr Gangi was a director and shareholder of Gangi Holdings Pty Limited, which had had a contract with Boral for a number of years for the provision of services of a cement agitator truck and driver. Before the collapse Mr Gangi drove the company's truck six days a week. On the day of the collapse he was driving a replacement truck. He had reversed that truck under the plant, where it was to be loaded with raw concrete materials stored in large overhead bins. The plant then collapsed without any warning, creating a huge dust cloud, damaging the back of the truck and injuring Mr Gangi.
Mr Gangi returned to work part-time in April 2008. He has never returned to full-time work. Gangi Holdings Pty Limited now engages the services of another driver, three days per week, to fulfil its contract with Boral.
The plant was a steel structure, built some 50 years prior to its collapse, having then been owned and operated by Boral for some 25 years. The plant was gravity fed, the bins being loaded from above and emptied into trucks parked below. It was the bins, carrying hundreds of tonnes of raw materials, sand and aggregate, which collapsed.
The plant operated in a corrosive environment, making it vulnerable to deterioration from constant impact and rust. Boral had a maintenance regime in constant operation at the plant to deal with the effects of this environment. Nevertheless, on its own case, during the entire time of its ownership of the plant, Boral had no knowledge of how the bins which collapsed were supported in the structure and it never maintained those supports. Boral demolished the plant after the collapse and built a new plant on the site.
What caused the collapse was the subject of competing expert evidence. Neither expert had the opportunity to inspect the plant, nor were they given access to information which Boral acquired when it demolished the plant, which would have shed light on how it had been designed and constructed; how the bins were supported in the structure; the condition of those supports; and what caused the plant to collapse. In the result the experts were unable to agree as to how the bins were supported, or what caused the collapse.
The issues
In closing submissions it became apparent that the issues document provided by Boral at the outset of the hearing, did not in fact clearly identify all that was put in issue. It was then explained that the document had been intended only to provide 'some information as to the evidentiary matters likely to come before your Honour and require determination'. That approach did not accord either with the duty imposed on the parties by s 56(3) of the Civil Procedure Act 2005, to assist the Court to further the overriding purpose specified in s 56(1), the just, quick and cheap resolution of the real issues in the proceedings, nor the Court's standard directions for trials such as this.
The issues which must be resolved in any trial are those which the parties identify and pursue. That is why it is provided in the Common Law Division's General Case Management List Practice Note 5:
"Listing for hearing
52. When ready for trial, for proceedings in which a claim is made for damages for personal injury or disability, standard directions in the form of Appendix B are deemed to have been made, unless the Court otherwise orders."
Appendix B requires that:
"57. Within 7 days of a hearing date having been allocated:
(i) The plaintiff's legal representative is to prepare a draft chronology of relevant events and serve a copy of it upon other parties which have an address for service;
(ii) Each party is to prepare a draft schedule of damages, outlining in detail the heads of damages, and identifying the evidence which supports that head of damage.
(iii) Each party is to prepare its final schedule of issues in dispute."
Final identification of the issues in dispute must plainly occur before a trial commences. It follows that these documents should be provided to the trial judge at the commencement of the hearing. They will be relevant to the identification of what evidence is admissible under s 55 and s 56 of the Evidence Act 1995, it being there provided that relevant and admissible evidence is that which could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.
It does not accord with the obligations which s 56 of the Civil Procedure Act imposes on the parties, that clear identification of the issues in dispute is left to final submissions, unless, of course, what is then being clarified is that an issue earlier identified as being in dispute, is no longer being pressed.
Under the Civil Liability Act 2002, an onus is imposed on a plaintiff pursuing a negligence claim to establish that the defendant owed him or her a duty of care; that there was a breach of that duty; that damage was suffered; and that the damage was caused by the breach of the duty. Sections 5B and 5C of the Civil Liability Act provide:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
Difficult questions can arise about the nature and extent of a particular duty; whether there has been a breach of that duty; and whether any breach has caused any loss or damage.
In this case there was but little common ground between the parties when the hearing commenced in February 2012, but some agreements emerged at the resumed hearing in 2013, including that Mr Gangi had suffered a psychological injury as the result of the collapse, which Boral accepted had involved him in a horrific experience. Boral also accepted that it owed Mr Gangi a duty to take reasonable care in the performance of its concrete batching plant. That, however, was submitted in final submissions, to 'beg the question', because the scope of the duty was in issue.
Mr Gangi's case and how it was defended
Mr Gangi claimed that the risk of harm arising from the collapse of the plant was foreseeable and ought to have been known to a reasonable person in Boral's position, given that Boral knew, or ought to have known that:
a. bins housed in structures such as the plant were at risk of catastrophic failure due to the extremely harsh physical and chemical environment in which the plant operated
b. the combination of chemical and physical environment in and around the bins can and does lead to corrosive attack on steel and other metal components
c. the corrosive effect could be exacerbated over time
d. there were no structural steel beams or supporting columns in place which supported the weight of the bins and their contents
e. the bins and their contents were being supported only by a row of bolts in shear
f. how the bins and their contents were being supported
Boral denied that the collapse of the plant was foreseeable. It also denied that it had constructive knowledge of the risk of such a collapse, or that Mr Gangi's constructive knowledge claim had been properly particularised. It also denied that it should have taken the precautions Mr Gangi claimed should have been taken against the risk of collapse; or that they were precautions which a reasonable person would have taken to guard against that risk; and that the risk of harm was not insignificant.
The precautions that Mr Gangi claimed a reasonable person in Boral's position would have taken to avoid the risk of harm, included:
- inspecting the bins and supporting structures to ascertain:
- how they were being held up
- whether their structural integrity was adequate to support the weight of the materials being loaded into the bins.
- Obtaining advice from experts as to whether:
- the structural integrity of the support systems was adequate for the load
- the method of fixing the bins to the support structure was adequate for the load
- additional support was required, given the load
- Maintaining the bins, support structures and the mechanism fixing the bins, to guard against the risk of collapse.
Boral denied that it was negligent in failing to inspect the bin support structure, or in failing to maintain those structures to guard against the risk of collapse. It also denied that but for its negligence the bins would not have collapsed as they did and that it was appropriate for its liability to extend to the harm caused by its negligence.
In closing submissions it was submitted for Boral that as the case had developed, it concerned whether it owed a duty to become suspicious and that therefore, it concerned what it was that held the bins which collapsed in place within the structure, from the time that it acquired the plant in 1982, until it collapsed in 2007. The evidence as to how the plant was designed and constructed, it was submitted, involved but conjecture and speculation, nevertheless, the evidence established that the collapse was caused by a latent defect in its design. That defect was the method by which the bins were fixed to the surrounding structure, which permitted the component parts which held the bin to the structure to deteriorate through corrosion to such a point, that it failed catastrophically in 2007.
It should immediately be observed, for reasons which will become apparent when l deal with the experts' evidence, that it cannot be accepted that there was any defect in the design of this plant, which Boral had successfully operated for some 25 years, before it collapsed, some 50 years after construction. That there was a defect in the design of the plant was not a view which even the expert called by Boral, Mr Taylor, advanced. As he put it, at its highest, the bins' support structure was bad engineering, or poor design. Nevertheless, he considered that the plant could have continued operating indefinitely, had it been maintained.
The risk was not insignificant
The significance of the risk to which Mr Gangi was exposed was well established before the accident. The grave risk to which Mr Gangi was exposed when the bins collapsed was as articulated in Boral's closing submissions:
"The risk of a person suffering injury as a result of the sudden, catastrophic collapse of the Plant caused by the inappropriate method of securing the storage bin(s) to the structural component(s) of the Plant."
The risk of harm was foreseeable and one which ought to have been known to a reasonable person in Boral's position
I am satisfied that Mr Gangi made out this aspect of his case.
The importance of the bin supports to the integrity of the plant was because of the huge loads which they carried; the caustic environment in which the plant operated; the considerable loading stress to which both the bins and the supporting steel structure of the plant were constantly subjected; and the fact that trucks and people were located under the bins, as the trucks were being loaded with raw materials.
There was no suggestion that Boral had actual knowledge that the plant was at risk of collapse. Boral's case was that the establishment of its constructive knowledge of this risk necessarily depended upon all of the facts, matters and circumstances which were known to it, or else ought to have been known to it, at the time of its alleged negligence, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences. While the photographs in evidence showed a scene of devastation and catastrophe, an onus fell on Mr Gangi to establish the configuration of the plant immediately before its collapse, so that it could be determined whether that formed a relevant part of the collapse. That onus had not been met.
I am satisfied that these submissions cannot be accepted. In summary, the evidence as to the configuration of the plant showed that the bins were located high above the ground, carrying up to 450 tonnes of materials, which were gravity fed into the trucks parked below, underneath the plant. The bins were not supported from below. Their means of support were neither visible nor known to Boral before the collapse. It did not lead evidence as to the result of the investigations which it undertook after the collapse, which would have shed considerable light on how they were supported and what caused the bins to collapse.
What the evidence did establish was that the plant was not constructed in the standard way in which such plants are generally constructed, where the bins which collapsed are supported in such a way that they could not physically collapse as they did at this plant. Over the course of its 25 years of operation of the plant, Boral assumed that they were supported in the standard way. The bins were in fact supported in such a way that a physical collapse was possible. The actual bin supports were vulnerable to corrosion and were never maintained. In the result, while Boral had safety and maintenance systems constantly in operation at the plant, it never investigated how the bins were supported and never maintained the supports. Eventually they corroded to the point where they could no longer support the weight of the bins, with the result that in December 2007, they collapsed to the ground, injuring Mr Gangi.
The evidence showed that while this risk was not foreseen, it ought to have been, and that if it had been, Boral would have taken available precautions, which would have prevented the risk from materialising.
In the circumstances a reasonable person in Boral's position would have known of the risk, because it would have taken available steps to ensure that it knew of the way in which the bins were supported; and it would have maintained those supports, in accordance with the systems which it operated at the plant. Had it done so, the supports would not have corroded to the point that the bins collapsed.
The evidence on which these conclusions rest is as follows.
The plant
The plant was a steel structure built in an old quarry. It was a gravity fed plant, some 50 years old in December 2007. Boral acquired it in late 1982, when it purchased the remaining 70% of the shares of its former owner. It then took over operation of the plant as a going concern. The plant operated in a very harsh, caustic environment, which required Boral to actively protect it from corrosion.
Mr McDonnell, the operations manager for Boral Concrete (NSW) Metropolitan Area, gave evidence that before the collapse, the trucks which dropped their loads into the bins, together with their loads, weighed something in the order of 40 to 50 tonnes each. Some 30 loads per day would be emptied into the bins. The three bins together held loads of up to 450 tonnes of sand and aggregate, which were suspended some 13 metres above the ground.
In a letter sent to Willoughby Council in 2004, Boral advised as to the plant's then existing peak output capacity, when fully stocked, of some 26 loads per hour, which equated to 140 cubic metres of concrete per hour. Other internal documents showed a maximum hourly production of 181 cubic metres in November 2004. Mr Gow, the production manager of the Artarmon batching plant as at 14 December 2007, now the project manager at Barangaroo, said that in 2007 the plant then produced some 12,000 m³ of concrete per month and that the three bins were then holding about 150 tonnes each, when full.
Mr Russell was Boral's maintenance manager for some 21 years before his retirement. He went to the plant about once a week and while there, would walk through the plant, checking its condition. He had tradesman qualifications in fitting and machining and had operated his own maintenance business for some eight years, first providing services to Boral in about 1980 or 1981. He took up employment with it as maintenance manager in 1989. He also had considerable experience with other concrete batching plants around New South Wales.
Mr Russell gave evidence as to difficulties encountered from time to time in record keeping at Boral, including when his office was relocated from Artarmon to Greystanes. It appears, however, that Boral never had any design drawings for this plant. Mr Russell said that it had never obtained any records about the plant's design when it took over its operation. Enquiries later made of Willoughby Council did not produce such drawings and Boral never engaged an engineer to produce such drawings, as Mr Russell accepted it could have done.
Mr McDonnell had been the plant's manager in about 1993. His qualifications were a bachelor of engineering, civil. He confirmed that he also had then no engineering drawings showing the structural steel work at the plant. Searches undertaken after the collapse were unable to locate any.
Mr De Carvalho was the general manager of a business unit known as Boral Resources (NSW) Pty Ltd up until and including December 2007. His evidence was that prior to the collapse Boral had been pursuing a plan to rebuild the plant for a number of years. This had been first considered in about 1990. Mr De Carvalho explained that in 2007 Boral needed to upgrade the plant. It was strategically located, but there were difficulties with access to the site which had to be addressed and a wish to increase the capacity of the plant. Boral obtained advice from engineers which it engaged from time to time, in relation to the proposed upgrade. It received no advice from them as to any risk posed by the way in which the bins were supported in the existing structure. Nor however, did the evidence show that it ever sought such advice.
An environmental impact statement which Boral lodged in October 2007, identified that the plant was due for normal life-cycle replacement of aggregate bins, silos and other equipment. It was then intended to leave the old plant operating, building a new plant around it and then pulling the old plant down, when the new plant was finished. A development application was lodged in November 2007 with the Council.
The system of work at the plant
The system of work in operation involved trucks reversing onto a separately supported grid structure (called a 'cattle grid'), located above the bins, from the Carlotta Street entrance to the site. They dropped their loads into the bins. This cattle grid and its supports, as well as the bins, had to be repaired and replaced from time to time. There were also dividing walls, called 'wind walls' or 'hungry boards', located above the grid, designed to prevent cross contamination of the bins, when trucks emptied their loads into the bins.
On Mr Russell's evidence, when the bins were full, excess material was stacked on top of the grid, against the wind walls. This material fell into the bins, as they were emptied into trucks below. On occasions a front-end loader was used to push the material into the bins.
The collapse
The collapse was catastrophic. It resulted in the bins which were carrying hundreds of tonnes of sand and aggregate high above Mr Gangi's truck collapsing onto the ground and the back of the truck. The plant was so badly damaged that it was demolished and never went back into operation. Photographs of the truck showed that it had been pushed forward from its position under the plant and that the barrel had been significantly damaged.
Boral accepted that the experience must have been a horrific one for Mr Gangi, which resulted in the psychological injury which he has been diagnosed to be suffering. The extent of the physical injuries which he suffered was, however, in issue.
Mr Gangi's normal procedure was to park the truck under the plant; to alight, in order to push a button which enabled the truck to be loaded with raw materials from the bins; and then to return to the truck, to do his paperwork. His evidence was that on this day the plant collapsed onto the back of the truck suddenly and without warning, soon after he had got out of the truck, after he had reversed it under the plant to receive its load.
Mr Gangi said that he fell to the ground unconscious for a few moments. When he came to, the air was so full of dust that he could see little and he was being hit by flying debris. He got up and found his way to a nearby fence. Others came to his assistance. He was dazed and his neck and shoulders were hurt. An ambulance attended and he was taken to hospital, where he was treated without admission and then went home.
Mr Carrette, another driver, had worked from the plant for some 12-14 years at the time of the collapse. He gave a similar account of how the plant collapsed. He had stopped some 30-40 metres away from the plant, waiting to take his turn to load, while Mr Gangi's truck was being loaded. Theirs were the only trucks then present. He saw Mr Gangi's truck reverse in. It was stopped under the plant for some minutes when he heard what appeared to be a very loud explosion. He saw a lot of dust and debris flying and the walls of the plant shaking and bending. There was so much dust going high up into the air, that he then lost vision.
Mr Carrette said the experience was surreal. In an act of obvious and commendable bravery, when he realised that the plant was falling down, Mr Carrette left his truck and ran to where Mr Gangi's truck was parked under the falling plant, in order to search for Mr Gangi. He could not see through the dust and got to a metre before the front of the truck, before he could see its yellow colour.
Mr Carrette could not see anyone in the cabin and first thought to go to the back of the truck, to look for Mr Gangi, but there was so much debris, that he considered this to be too dangerous. He then started calling Mr Gangi's name, turning as he called, because he had no idea where Mr Gangi was. He called out several times with no response and then Mr Gangi answered him. He appeared to be behind Mr Carrette, who was then standing facing the truck. Mr Carrette turned towards the sound of his voice and took a few steps forward as Mr Gangi came towards him. Mr Gangi seemed very disorientated, so Mr Carrette took him by the shoulders, turned him and led him out of the dust.
He led Mr Gangi some four or five metres away, where another driver, Mr Healis, joined them. They assisted Mr Gangi to get away as far as possible, sitting him down about 40 metres away. Mr Carrette did not know whether Mr Gangi was injured. There were no apparent injuries, but he was very disoriented. An ambulance attended and Mr Gangi was taken to hospital.
Mr De Carvalho attended the plant immediately on being advised of the collapse. Steps were taken to take control of what was an emergency situation. There was a headcount and it was necessary to cooperate with police, who had established a crime scene, as well as with WorkCover. He later addressed a meeting of staff and an engineer, Mr Soong, was engaged to determine the state of the plant.
WorkCover investigated the collapse. Mr Prokopenko, a WorkCover inspector, met with Boral representatives after the collapse. Boral was asked to provide copies of risk assessments and maintenance records. No risk assessment was produced. Maintenance records were later provided. Mr Weerasinghe, an engineer employed by WorkCover, attended the site after the collapse, but was finally not asked to conduct an engineering investigation, or to produce a report. No prosecution ensued.
How the plant was maintained
Because of the corrosive environment in which the plant operated, constant maintenance of the plant was critical to its ongoing operation.
Mr De Carvalho's evidence was that prior to the collapse, there had been no report of any problem which could lead to the collapse of the plant. On his evidence it is unquestionable that if such a report had been received, Boral would have taken the steps necessary to prevent its collapse, by undertaking the necessary maintenance, including by engaging the services of qualified engineers, who were engaged when necessary.
Mr De Carvalho and other witnesses Boral called described the inspection and maintenance systems it had in operation before the collapse and the new protocol which it introduced afterwards. It is apparent from his evidence that the collapse drew to its attention a deficiency in its systems, which it then attended to.
Beforehand, Boral had a programmed maintenance system in operation for items known to wear out at a certain rate, which then had to be replaced, as well as a regular visual inspection system which included inspection of the bins which collapsed. In cross-examination Mr De Carvalho said that he considered that it was appropriate that personnel on site also make their own visual inspections of plant structures and that their observations be recorded. He also agreed that a suitably qualified engineer should inspect all structural elements, but there was no such inspection undertaken of the bin support structures.
The plant was regularly inspected both by Boral employees and by contractors for wear and tear. There was a budget for routine maintenance and if additional significant repairs were required, they were authorised by Mr De Carvalho and Mr McDonnell. When necessary the plant was taken off-line for required maintenance, which was best done around Easter and Christmas.
In 2007 the regular inspections undertaken at the plant were conducted by employees by reference to a checklist, with hazards identified being rated according to a scale, ranging from good to poor. Mr De Carvalho explained that anything reported as being in poor condition should have been fixed under this system. Mr Gow agreed that the reports did not indicate what corrective action had been taken to fix the hazards identified, as the documents envisaged, but did not accept that they had not been dealt with.
Mr McDonnell attended the plant every month to six weeks. He explained how perceived safety issues were dealt with at the plant, by way of site plant meetings involving everyone on site, including all 20 drivers who operated from the site and at area cluster meetings. He also explained how Boral's overarching safety management plan operated.
He also explained that workplace inspections were undertaken by two people, so that two sets of eyes, were looking at potential problems and that it was they who completed the pro forma checklist. Boral recorded the results in its electronic system known as Site Safe, where any hazards identified were entered. Some matters were brought to Mr McDonnell's attention, but at the time that he gave his evidence, the 2007 records could not be located. In some cases work necessary to be undertaken required his approval, depending on cost. Nothing, however, had ever been brought to his attention which had led him to form the view that the plant might collapse, nor had he ever observed anything that led him to form the view that it might collapse.
Mr McDonnell agreed that the purpose of the visual inspection system was to make a record of obvious visual problems, including any structural defects. He said that tradesmen engaged to undertake specific repair jobs, were also expected to draw attention to any problems they noticed, when performing their work. Anyone attending the site could also raise a hazard which they noticed, in a hazard book. Managers who attended the site could also provide snapshot reports of any problems which they identified.
Mr Gow also described the operation of the Site Safe system at the plant in 2007, which included toolbox meetings held early in the morning, a workplace inspection program, the hazard alert system and a facility allowing employees on site to raise hazards directly, using a hazard report form. Mr Gow explained the hazard identification process and how the results of the inspections were provided to Boral's safety department and entered into the electronic system. He was the chairperson of the site safety meetings and took minutes. He also had responsibility for day-to-day maintenance of the plant.
Mr Russell said that the safety system involved employees conducting bi-monthly inspections of the plant, according to a written checklist. The inspections sought to identify hazards, by classifying the condition of what was inspected.
Mr Azar, then the plant supervisor, described how the checklist was followed during visual inspections undertaken on a walk-through of the plant, which he said he preferred to conduct top down, from Carlotta Street. There was no official walkway on the grid at that level, which could only be traversed if there was no material lying on the grid.
He explained that bin liners could only be inspected from the top, if there was no material in the bins. If the bins were empty, vision could be obtained to halfway, with the use of a torch. Bin walls could be seen from the bottom of the plant and level 2. Inspections looked for wear and tear, holes and rust. If holes were observed they were then repaired with a steel patch welded to the outside of the bins. Some such holes required the plant to be shut down in order for repairs to be undertaken. Rust was attended to by use of a needle gun. On occasions fitters undertook welding inside the bins.
In cross-examination, Mr Azar said that the inspection system did not provide for the condition of the structural steel supporting the bins to be recorded on the form in use and that such an inspection was not required as part of the walk-through. From level 2 only part of the bin walls could be seen, but not how they were held in place. The inspection did not involve the use of any tools or any inspection of the point in the structure where the bins were supported by structural steel work. Mr Azar regarded that to be an engineer's job, but on Mr Russell's evidence, structural engineers engaged to inspect the plant were not asked to inspect the connection between the bins and support structure.
Mr Russell also explained how hazards identified under this inspection system were then dealt with, in consultation with the plant manager and safety officer, at regular occupational, health and safety meetings. He then acted on identified hazards, by inspecting the hazard and engaging contractors to undertake necessary repairs. The results were entered into the computerised safety system.
Mr Russell also said that the bins would be drained two to three times a year and their condition checked, typically during a shutdown. The bin area was then the highest spend at the plant, requiring regular maintenance work, particularly on the dividing walls and grids. Boral had, however, never engaged any contractor or engineer to inspect the point where the bins were supported in the structure, even though it had no structural drawings from which it could determine what pattern of regular inspection was required for maintenance of this part of the plant.
Mr Hawkeswood, a boilermaker, metal fabrication, described how damaged liner plates could be replaced, either from underneath the bin, by removal of the gate, or from above, by the bin being filled to the desired height, so that access to part of the liner which required repair could be gained. He said that such work was typically undertaken twice a year, by use of a needle gun to deal with corrosion and by welding.
The grid rails could be completely removed and were routinely inspected and replaced as required. Such repairs were typically undertaken by contractors and if necessary, with advice sought from engineers. This regular inspection system did not extend to the bin support structure.
In the result, prior to the collapse, the maintenance system never extended to the bin support structures and they were never maintained by Boral.
Identified deficiencies in Boral's systems
The evidence given by various witnesses called by Boral, identified certain deficiencies in the systems which it operated. The hazard identification system was not entirely operating, as I will explain. The visual inspection system did not extend to the structural supports for the bins. Together this created a real deficiency, the identification of which did not depend on the collapse. Had the nature of hazards identified prior to the collapse been rated and dealt with, as Boral's system envisaged they would be, problems identified with the condition of the bins ought to have led to a closer inspection of the bins and their support structures, than was ever undertaken.
On Mr De Carvalho's evidence, prior to December 2007 there was no system of engineers carrying out regular inspections of the plant; they came only on request, when a problem that needed rectification was identified. An example he gave was in respect of the Carlotta Street grid rails, where loads were tipped into the bins. When major work was required on the rails, engineers were called in. Mr De Carvalho agreed that calling in engineers occurred reactively to a problem being identified. He agreed, however, that a suitably qualified engineer should have inspected all structural elements at the plant systematically, in order to spot problems, before they arose. There was no such system in operation at the Artarmon plant, before the collapse. This changed after the collapse.
He also agreed that the structural integrity of steel could be degraded by corrosion, by distortion, by deflection and by bolt deterioration, or by excessive vibration. Mr De Carvalho considered that it was necessary to make regular inspections of steel members of the concrete plant, because of such potential problems. He also agreed that corrosion of steel was due to reactions with its surroundings and in most cases, due to constant exposure to air, water and oxygen. He also agreed that corrosion was the single greatest threat to the integrity of steel structures and could be an underlying catalyst for detrimental effects on steel. He also considered that advanced corrosion had a negative effect on the sectional size of steel and that if it takes hold, the steel member will be weakened.
Mr De Carvahlo also agreed that in many industrial structures anchor bolts are used to hold structural members in place and that cross member supports often also contain heavy duty bolts and nuts, which may over time become loose as a result of temperature fluctuations or corrosion. He agreed that such nuts and bolts have to be kept securely fastened so that the structural integrity of the supporting load is not compromised.
He also agreed that any inspection of a steel structure should look, amongst other things, at any welds present and that it was undesirable that the owner of any steel structure should not know of the way in which it was constructed, although, he said by use of an analogy, that as an owner of a house, he was not fully conversant with how the house was constructed.
After the collapse Boral created a new written protocol for inspections of plant structures. Mr De Carvalho agreed that the necessity for such a system of inspection had existed before it was introduced. That view reflected, no doubt, the complete absence beforehand, of any system of inspection of the bin support structure.
Mr Russell also agreed that a programme of inspection should have included an annual visual inspection of the support structure for the bins, including the mechanism by which the bins were connected to the structure. He also agreed that an understanding of the support structure would have been assisted by access to either the original drawings, or a set of drawings later created by an engineer.
Mr Gow explained that he had never engaged an external engineer to investigate what was holding the bins up, he said because:
"Well, there was no, prior to that date, there was no precedent, there was no previous failure of any plant, so in my opinion there was no need to do that at my level"
He said that on occasion he had turned his mind to this, when he had inspected bins and bin linings and had some concern as to whether "[o]kay is the bin lining going to collapse?" He had become nervous around certain bin lining structures being concerned that the bin floor, or the side of a bin wall might collapse, because it had become too thin. He also said that he had thought about the structures that were holding the plant in place, when undertaking repair and maintenance work, when he was looking at the structures and the beams holding the plant in place, but he had never seen anything that gave him cause for concern. He had, however, never gotten into the bins himself, because he was not confined space trained.
The absence of any inspection of the bin support structures, has to be in a context where Mr Gow agreed that the bins and bin linings had been identified to be inadequate and needing to be patched up in 2007. In one report it was noted that 'condition of plant and bin structures - corrosion/damage' and 'very old plant/lots of patch up jobs'. Mr Gow explained that the bin linings were made of steel. They were attached to the fundamental structure of the bins, and the bin linings got to a point where they could no longer be patched and then the bins had to be relined.
In cross-examination, Mr Gow also agreed that before the collapse there was no system of regular inspection of the structural elements of the plant by appropriately qualified engineers and that Boral had had no warning that there was any structural problem with the plant which might lead to its collapse. He explained that such structures deteriorate very slowly, so that he was not sure whether they required regular inspection, 'so long as the plant has been designed for a certain lifespan'. Boral, however, had no information as to the design life of this plant. He also agreed that if the structural design of an element of the plant that holds up other elements was not known, then an engineer should be engaged to produce design drawings.
Mr Gow considered, however, that it was other managers who had responsibility for the plant and its structures, so far as major maintenance and rebuilding were concerned. For his part he assumed that the structure which held the bins up must have been adequate and that all that was required was visual inspection for any problems arising in the area. His belief was that the bins were supported at the top, where beams coming out of the cliff could be seen. The top of the plant was frequently inspected, but the focus was on inspection of the cattle grids, rather than the beams underneath. The set regime of safety inspections at the plant, included bi-monthly walk-through and inspections, but engineers were never engaged to inspect the structure and support of the bins. He was not aware whether they had ever been inspected from the time that the plant was first constructed. Mr Gow said that photographs taken after the collapse, showed corrosion and deformation of the steel structure. The corrosion was present before the collapse, but he was not sure about the deformation.
In cross-examination, Mr Gow agreed that the hazard identification system required consideration to be given to the condition of plant, as to corrosion or damage, but not whether the system supporting the bins was in good working order.
On all of this evidence, in my view, it must be concluded that there was a real deficiency in the inspection and maintenance system which Boral operated. It must be remembered that even though Boral never had any drawings of how the plant was designed or built and no information as to its design life, it did consider that it had reached the end of its working life and required replacement.
In those circumstances, even if the assumptions on which it had earlier proceeded as to how the bins were supported had been reasonable, by the time that it came to this view, it could no longer reasonably proceed on the basis of an assumption that the unknown structural supports for the bins, which had never been maintained by it over the course of some 25 years, were capable of continuing to adequately support them.
Given that the hazard identification system had in fact identified that there was 'corrosion/damage' to bin structures, it was then no longer reasonable to proceed on the basis of the assumptions it had made, without further investigations.
The bin support structure required maintenance before the bins collapsed
The outside of the plant was clad with a corrugated material which was installed by Boral in about 1990, when asbestos was removed from the plant. The steel structure was then sandblasted and painted with red oxide, in order to stop rust.
Various photographs showed the plant in its collapsed state in December 2007. Mr Russell's evidence was that it was the bins which held raw materials high above the ground which collapsed, not the support structure of the plant itself, although that structure was so damaged by the collapsing bins, that the entire plant was demolished.
A number of witnesses who had worked at the plant gave evidence as to its condition prior to its collapse.
A driver, Mr Robinson, who worked from the plant, described the plant prior to the collapse as old, deteriorated and rusty. Mr De Carvalho had overall responsibility for Boral's plants. He went regularly to the plant and had also observed that in December 2007 corrosion affected certain parts of the steel structure, including, 'probably' the side walls of the bins which collapsed.
Mr Gow's evidence was that he, too, had observed corrosion from time to time, including in the bin linings. He explained that members that were structural or integral to the structure of the plant would generally exhibit superficial or surface corrosion, like that to be seen on a railway line, where the brown tinge of corrosion could be seen on the sides of railway tracks. Occasionally, there were holes or pitting in large steel members, but pitting was more typical in the metal linings of the bins, where corrosion was heavier. He said that in December 2007 the structure showed signs of superficial surface corrosion. Other than that, there was no evidence of any other corrosion or damage to the structure. In re-examination, he said that with regard to failure of structural steel, he looked for heavy corrosion on elements that were load bearing, which would affect its load-bearing capacity, as well as any warping or distortion.
In cross-examination, Mr De Carvalho said, however, that before the collapse in 2007 the plant had been worked pretty hard and it was considered that it was time for a change. He then believed he had an understanding of how the structure worked, which he had obtained from his own observations, but he never saw any drawings of the plant. In reality, prior to the collapse Boral had no understanding of how the bins were supported in the structure, nor any information as to whether the plant had then exceeded its designed lifespan.
Even so, in re-examination, Mr Gow said, by then the plant was not always able to operate efficiently, but he was never concerned about its ability to operate long term.
In December 2007, Mr Russell also had no concern that there was any risk of the plant collapsing in the way that it did. He was then a part of the team pursuing the redevelopment proposal and agreed that as the plant had aged, it had deteriorated and required more regular maintenance. He expected that if it had not been redeveloped, from a structural point of view the plant would have continued to operate on normal ongoing repairs, but he explained that the cost of such repairs would have become a relevant consideration. It was then the bins which were requiring most frequent maintenance.
The 2007 workplace inspection reports identified, however, that the condition of the plant and bin structures was poor and that repairs were required. The system envisaged that a hazard having been so identified, it would be given a rating, which would determine what Boral's response would be. This aspect of the system was not operating fully. The records which Boral maintained do not identify what response Boral then considered this hazard required, or how it was dealt with. On the evidence, the steps taken did not extend to the bin structures.
It must be concluded from all of this evidence that prior to the collapse of the bins, Boral had actually identified that the bin structures required maintenance. None was undertaken. At the least, what had been identified required that the adequacy of the bin support structure be investigated and repaired, if that was found to be necessary.
How were the bins supported?
Mr Russell explained that a gravity fed plant was a common style of plant. In his experience in most plants support for the bins was provided in such a way that a bin could not collapse. Unbeknownst to Boral, that was not the way in which the bins were supported in this plant. After the collapse it became apparent that assumptions which Boral had made about how the bins were supported, were incorrect.
Both Mr Hawkeswood, a tradesman who had been providing repair services to Boral since 2000, and Mr Russell had repeatedly been inside the bins before the collapse and inspected the collapsed bins together, after the collapse. They then saw sheared off bolts, which surprised them, but which provided an explanation for the collapse, namely that the bins had not been supported in the traditional way which had been assumed to that point.
How the bins were actually supported in this structure was not explained in Boral's case, even though it had the cause of the collapse investigated by experts, before the hearing. Nor did it instruct Mr Taylor, with information which it then obtained.
After the collapse Boral engaged a contractor to demolish the plant under the supervision of a firm of engineers. The site was passed over to that contractor. The Boral manager in charge of the site at that time was Mr Jackson. He was not called to give evidence. Mr De Carvalho had observed structural elements being put aside during the demolition. He knew that they were photographed, but Boral did not put the photographs into evidence, nor provide them to its expert Mr Taylor. At the hearing it claimed privilege when the photographs and the advice it received were called for.
What the evidence showed was that the plant was constructed of eight vertical steel columns. The bins sat between them, in a square section. The bins were constructed of plates of angle iron and sheet steel attached to the structural beams of the plant, which Mr Gow described to have been an inverted pyramid. In cross-examination, he explained that there were also I-beams which protruded from the cliff and other I-beams fixed to those horizontal beams, which formed part of the structure.
The bins themselves were V, or cone shaped. The middle bin held aggregate and the outside bins held sand. They each narrowed to a funnel, towards a gate located at the bottom of each bin. The bins were emptied in measured amounts through the gates, into the agitator trucks parked below. The angle iron ran horizontally around the bins, Mr Russell explained, in order to stop the bin walls from buckling and in order to break the fall of material being tipped into the bins. The bins were lined with disposable steel or plastic liners, designed to protect the bin walls. The liners located on the tapered walls of the bins had to be replaced twice as often as those on the vertical walls.
Mr Carey, a tradesman fitter and turner, was one of those who provided contract services to Boral at this and other of its plants before the collapse. He often went to the Artarmon plant when called by Boral to undertake repair work to metal surfaces which had corroded, or had holes in them, including the bins which collapsed. He explained that on occasions he had to repair holes in the steel walls of the bins, but it could be years before such repairs were required. Those holes were repaired by a hammer used to remove rust and a new section of steel being welded onto the existing bin wall, to cover the hole.
In cross-examination, he explained that such holes were the result of abrasion from the material stored in the bins. Aggregate being harder than steel, it wore the steel away. Sand caused the steel to rust away.
Unlike other witnesses, Mr Gow had never entered the bins. He could not recall whether he was able to see how the bins were fixed to the beams he described, but agreed that looking down into the bins, how they were attached to the beams could not be seen.
Mr Gow also agreed that an essential factor in being satisfied that these bins were going to be adequately supported and remain in place, was to know not only the support structure, but also how the bins were attached to the structure. He could not recall whether he had inspected the point at which the bins were attached to the beams, but explained that when the bins were not full, rain and air could enter freely, which was how they came to rust. Mr Gow expected that the bins were welded to the supporting beams, because he did not recall any plant that had bolted on steel plate walls at that time. In re-examination, he said that his understanding at the time was that no plants had bolts to hold up bins.
Mr Hawkeswood had been inside the bins one week prior to the collapse. He explained that while he was in the bins, he always observed rust, more in the sand bins than in the aggregate bins, which would wear out rather than rust, because of the abrasive nature of aggregate. He also said that on one occasion, while in a bin repairing lining, he had noticed that the support beams for the grid had rust sections in them, which he had reported and as a result, a structural engineer was called in, it was boxed in and repaired. While he was in the bins he did not, however, see anything which gave him any information as to how the bins were being held in place within the structure; he could not see the connection point, which was covered by a beam.
Mr Russell had also been inside the bins. He said that inside, all that could be seen was a flat plate and a beam that ran around the bin, towards the top. The means of attachment of the bins to the structure was on the other side of the plate and could not be seen from the inside. When the cladding was removed in 1990, the beams could be seen from outside, including the beam which sat on top of the supporting vertical stanchions. There was, however, then no close inspection of the support structure undertaken. The cladding was never again removed, although it could have been, if any inspection of the structure had been required.
Mr Russell said that when he was the bins he was in a position "that I should have been able to see how they were attached", but nothing made him think that the bins were attached "in any way different to any other concrete plant in Sydney". He explained that construction to be:
"You would put up stanchions, posts if you like, in a vertical position, and then there would be a beam run around the top of those six or eight stanchions, depending on the size of the bins, and the bins would then be lowered in in one or two sections and they would also have a bin which sat on top of that bin so that it was physically impossible for the bin to fall down through the centre. In other words, the top of the bin structurally was wider than what the stanchions were."
This ring beam could not be seen from inside these bins. When the cladding was removed from the outside of the plant Mr Russell said that he did not believe that the method of attaching the bins to the structure was then visible, because it was hidden behind an external beam. He said that he considered that to see what was in there, you had to demolish the plant. Later in cross-examination, however, he agreed that there were a number of other ways in which this attachment could have been inspected, without damaging the plant. That never occurred.
Mr Russell explained that in a traditionally constructed plant, it is a ring beam which supports the weight of the bins, which is visible from several angles at the top of the bins. Mr Russell did not see such a beam when the cladding was stripped off this plant in 1990. What he then saw was a beam half a metre from the top of the bin wall. He agreed that he knew from his visual inspection at that time, that this beam was not supporting the bins. He then assumed that there was another horizontal beam welded to the bin, inside the beam, which could not be seen. After the collapse he learned that there were in fact three beams there.
Mr Russell's evidence was that between 1982 until the plant collapsed in December 2007, no work of a structural nature was undertaken to the part of the plant where the bins joined the surrounding structure. In 2002, the independent grid structure on top of the bins was replaced. Boral then took the advice of structural engineers, as it did at various other times. At that time Mr Russell inspected the beams on which the grid structure sat, as well as the bins. Those beams were independent of the main structure. Some of those beams were then replaced and minor repairs were undertaken to the bins.
Mr Russell considered that the attachment of the bins to the beams could have been inspected by use of mirrors, which would have been difficult, but not impossible. He had undertaken such inspections himself. He also considered that if undertaken, such an inspection would have shown that the bins were not welded in the normal fashion to the top of the stanchions, but not the bolts which he first saw after the collapse. He considered that had such an investigation then been undertaken, it would probably have resulted in further investigation being pursued. Engineers could have undertaken those investigations by use of x-ray or ultrasound. Ultrasonic testing of the thickness of the lining of the aggregate bin was then being undertaken.
Mr Russell and Mr Hawkeswood inspected the plant shortly after it collapsed from a crane lowered above the plant, before it was demolished.
Mr Hawkeswood gave evidence that what he saw before the collapse did not tell him anything as to how the bins were affixed to the structure. What he saw after the collapse suggested to him that the bins seemed to be bolted to the horizontal member with the bolts in sheer, not in tension. When taken to the photos he said that the support column for the bins there visible, appeared to be in good condition and not rusty. In cross-examination, he agreed however, that the bin could not be seen in the photo, the dividing walls had collapsed and fallen down. He also explained that the I-beam at the top could be seen. It was painted with red oxide and covered in dust sand and cementious product.
In a statement which he had made in March 2012, Mr Russell had said that from what he saw after the collapse, the upper anchor points for the bins were attached by bolts to two flanges, inside the upper ring beams, that went around the tip of the structure, which covered their appearance and that basically the bins hung from the support beams. His evidence in cross-examination was to somewhat different effect.
Then Mr Russell said that from what he could then see of the structure, it did not look corroded and apart from what had been distorted or involved in the collapse, the structure looked as it had done beforehand. Most of the bin was covered by material which had fallen down with it, but Mr Russell saw that:
"There was one section, probably two metres long, and that had bolt holes in a portion of it and there were bolts freshly sheered through another section of about a metre. That was the first time that I had actually seen a bin bolted in that manner and was startled."
He explained that he was startled because he did not consider that to be good engineering. He could only observe the face area, which had been up against the section which was bolted. He could not see the external heads of the bolts, but what he saw looked like the bolts filled the holes completely and they were cleanly broken.
In cross-examination, Mr Russell also explained that he then had a good view of this section, being some 7 to 10 metres above the broken section, in the boom. It was Mr Hawkeswood, who took the photos in evidence. He explained that only the central part of the cattle grid over the bins had collapsed, that on the left and right sides was still there. Mr Russell then saw a section of the centre rear wall of the aggregate bin, which had a number of boltholes with no bolts in them and probably half a dozen bolts which were cleanly broken. He saw no bolt heads and no nuts, the bolts were sheared flush in the holes. Mr Russell then said that he did not know how those bolts could have been put in and tightened. He did not see any indication in a beam that there were boltholes.
Mr Russell also said in cross-examination that he was struggling to understand how the bins were attached physically to the structure. He considered that it was a possibility that the beams were bolted together and that the bin was dropped in and welded to the internal beam, but, he did not know how, if he was asked to do this, he would physically do it. He also agreed that if the bolts were bolted to a smaller beam, which was behind, on the far side of the larger beam, it would be necessary to drill through the larger beam. He saw no boltholes on that external beam.
By reference to Mr Hawkeswood's photographs, Mr Russell also said that he could not work out if the bin was bolted and if it was, what it was bolted to, or through. The bolts did not come through the bin wall, where they would have been visible. In his view this meant that they had to be bolted to something on the outside of the bin, which had to be welded to the bin, such as a beam or flange, which was bolted to the ring beam or another flange. He saw no such beam or flanges. The photographs did not show the external walls of the bins. Mr Russell agreed that the possibility of such welding was one which he had not advanced in his evidence in chief.
Mr Russell also said that he had never seen such an arrangement and that his theories depended on an assumption that it was the failure of the supporting bolts, which had caused the bins to collapse. Even so, he could not work out what the bolts would have been bolted to, or through.
The expert's opinions
The experts, Mr Appleyard and Mr Taylor, had considered various theories as to how the bins were supported in the structure and what caused it to collapse, but finally came to no common view. Their theories had to be considered in light of the evidence received at the hearing.
Neither Mr Appleyard nor Mr Taylor had the opportunity to inspect the plant or its components, or the photographs taken of the plant as it was disassembled after the collapse, or the engineering report Boral obtained afterwards. From its investigations after the collapse Boral plainly had information as to how the plant was constructed, which it did not reveal.
Mr Taylor and Mr Appleyard had been instructed to give their opinions on the basis of specified assumptions, not all of which were born out by the evidence given by those who had worked at the plant. Their reports were in evidence, as was their joint report. They gave their oral evidence concurrently, by way of response to an agenda prepared by the parties, during which evidence received was put to them.
It was common ground between the experts that it was not unusual for successive owners of industrial plants not to have access to original construction drawings, particularly with plants as old as this one. They did not agree on whether in such a situation, owners could reasonably rely on people with trade qualifications and experience such as Mr Russell had, to obtain an understanding of the structure and what was required to maintain it, or whether that required advice to be obtained from qualified engineers.
Mr Russell's evidence was that he had always approached his work on the basis of an assumption that at this plant, like conventionally constructed plants, it was impossible for the bins to collapse as they did, given their construction. While the experts agreed that this was a reasonable assumption for him to have made, they also considered that a reasonably prudent operator, having operated the plant for some 25 years, ought to have had a good practical working knowledge of the condition of all aspects of the plant, as well as knowing what the structural supports for the bins were.
As it transpired, Boral did not have such knowledge. The evidence shows that the question of what held the bins up, was something which a reasonable person in Boral's position over the course of the 25 years that it operated the plant, should have considered and resolved. That was put beyond question by what the 2007 hazard reports had identified as to the condition of the bins at a time when Boral considered the plant as nearing the end of its working life and to require replacement. It had been necessary for other support structures, as well as the bins and other structures at the plant to be maintained over the years. Boral knew this, but never undertook any investigation as to how the bins were supported and whether those supports required maintenance, even when hazard reports identified the poor condition of the bins in 2007, at a time when they were requiring the most maintenance.
Also to be considered is that when the cladding was removed from the plant in 1990, it appears that what could then be seen of the bin support structure suggested it may not have been the conventional one. The ring beam which Mr Russell explained could ordinarily be seen to support the underneath edge of the top of the bins in such a structure, was either not visible or very difficult to see. Even so, the experts did not agree as to whether it was reasonably prudent for Boral then to have inspected the support structure.
Given Mr Russell's evidence, what could then be seen appears to have departed from what could be seen in a conventionally constructed plant. That was the point at which Boral should have determined, as was put for it in submissions, 'well we should check this out', rather than continuing to proceed on the basis of its earlier assumptions.
Boral had no drawings of the plant. It was then apparent that there was a difficulty in seeing the bin support structure. That meant that reasonable prudence required that an inspection be undertaken, engaging an engineer if necessary, to determine whether the assumption which had been made as to the construction of the bin support structure was sound. Such an inspection was not undertaken. Had it been, there is no question that the unusual support structure would then have been revealed and that afterwards, the bin supports would have received necessary maintenance, which would have prevented the collapse which occurred in 2007.
Whether such an inspection would have required an engineer to be engaged, depended on the difficulty of the inspection. On Mr Russell's evidence while that would have been difficult, if the use of mirrors had not permitted an adequate inspection, then x-ray or ultrasound could have been used and if necessary, other physical means of examination could have been pursued. The experts agreed. It appears that such investigations would have required a qualified engineer to be engaged. Such engineers were now and then engaged when it was necessary. It follows that is what reasonable prudence would have required in the circumstances. Such an inspection was not attempted when the cladding was removed, or at any time before the collapse in 2007, even though by then, Boral considered that the plant needed to be replaced and the poor condition of the bins structures had been identified.
After the collapse Mr Russell saw sheared off bolts and empty bolt holes, which surprised him. The experts agreed that a system of bin support by bolts alone would have involved bad engineering. That was not because such a design of the bins was structurally inadequate, but rather that the likelihood of their collapse increased over time, due to operating conditions at the plant and the resulting deterioration of the support components, which were vulnerable to corrosion, but could not easily be seen.
This was an accident waiting to happen, Mr Taylor considered. It could have happened 20 years before or after the collapse. Mr Appleyard agreed, given that the bolts, if they had been the support mechanism, had never been maintained. They did not agree, however, that this was how the bins were supported, or that it was even theoretically possible for them to have been so supported. Mr Taylor said that he was 99% sure that they were so supported. Mr Appleyard disagreed, being, he said, 99% sure that it was not held up by bolts in tension.
Mr Appleyard considered that in all probability the bins were welded in place, and that there was a failure either of the welds, or more likely, of the steel material immediately adjacent to the welds, that caused the collapse. He said that it was relatively rare for a weld to fail per se. It was much more common for a steel component, which has been welded to another steel component to fail, because of corrosion or fatigue. He did not consider it possible for the bins to have been constructed and supported by bolts alone.
Mr Taylor disagreed. For technical reasons which he explained, he considered it possible for the bins to have been so supported. Mr Appleyard disagreed, for reasons which he explained. It is not necessary to resolve this disagreement.
The experts revisited their opinions in light of the evidence received at trial. For his part Mr Taylor could see nothing in the photographs evidencing a weld or plate failure. He considered that the immediate cause of the collapse was due to the failure of the fasteners holding the bins onto the supporting structure, because of corrosion over time. By reference to blow ups of one photograph, Mr Taylor postulated that the fasteners were fastened through the bin. He explained that such fasteners could have been bolts, or rivets, or screws, or welded studs. The evidence was that no such fasteners had ever been observed before the collapse. Two possible explanations for this, in Mr Taylor's view, were that the heads of the fasteners were flush with the inside faces of the bin walls, or that they were covered in some way, for example by a cover sheet or cover plate, to protect them from wear, which otherwise would have been a problem.
Mr Appleyard considered this not to have been physically possible, given the size of the fasteners necessary to support the weight of the bins. Mr Taylor disagreed.
The experts' opinions had to be considered in light of the evidence of those who had worked at the plant. Mr Russell and Mr Hawkeswood had repeatedly been inside the bins over the years. They had also seen the collapsed bins, when they had observed sheared off bolts. Mr Russell certainly did not consider it to be possible for the bins to have been supported only by bolts, as Mr Taylor postulated, nor was that consistent with what he had observed of the bins while the plant was operating. Mr Russell concluded that if bolts had supported the bins, some welding must have been involved.
Mr Taylor was present when Mr Russell gave his evidence and explained that he considered that what Mr Russell had been trying to say, was that the bin support structure would have involved flanges, one welded to the support structure and the other to the top of the bin, which were fixed together with fasteners. Mr Appleyard accepted that flanges being so welded was conceivable. Mr Taylor later produced two drawings in order to illustrate his theories as to how the bins could have been so supported.
It seems to me that Mr Taylor's theories cannot be accepted. They do not accord with the evidence of what had been observed by those witnesses who had repeatedly inspected the insides of these bins and repaired and replaced the bin walls and liners over many years. Mr Taylor did not know the means by which the bin liners were attached to the metal bin. There was no evidence suggesting that a cover strip of the kind Mr Taylor postulated had ever been seen. Given the way in which the bins were lined and repaired, it is unlikely that such a cover would not have been noticed over the course of 25 years. Such a cover is itself likely to have required repair over that time, given what it would have been exposed to, inside the bins. If it had been there, questions as to the bin support structure would undoubtedly have arisen and been attended to, given that this would have departed from the normal way in which such bins were constructed.
Mr Taylor's other theory was that the supports were not observed because the heads of the bolts had been flush with the bins walls, perhaps welded and ground off. Mr Appleyard considered that would not have made them invisible, although Mr Taylor said that when the structure was old and dirty they would not be obvious.
It seems to me on the evidence that if bins had been so connected to the structure, something would have been seen and investigated over the course of Boral's 25 years of operation of the plant and the constant maintenance, repair and replacement of the bin walls and bin liners, over that time. Nothing of that kind was observed.
The evidence also did not suggest that there would be any reason for those constructing this plant so concealing the existence of the bin support structure, which in this caustic environment would have plainly required ongoing maintenance and repair. That makes it unlikely, it seems to me, that steps would have taken to conceal the existence of the bolts which Mr Russell saw, particularly if they had they alone supported the bins.
The photographs did not show those parts of the bin structure to which any flanges would have been welded, if the bins had been connected to the support structure by fasteners and flanges. Mr Russell could not conceive how they could have been so attached, given what he could observe after the collapse and what he had seen beforehand. On the evidence of what it would have required to construct these bins by way of fastening with such flanges or bolts alone, it seems most unlikely that this was the method of construction used for these bins.
On all of the evidence it seems to me that the bins must have been connected to the support structure of the plant by a combination of welding and bolts. I can see no reason for rejecting the evidence of Mr Russell and Mr Hawkeswood as to what they saw. That the bolts were performing some function in the bin support structure must be accepted, but on all of the evidence it appears most unlikely that they alone could have supported these bins over the entire course of the plant's 50 years of operation, in the caustic environment in which it operated, particularly when it is remembered that they had been given no maintenance at all, over the entire course of that time and Mr De Carvalho's evidence as to the maintenance which such bolts generally required. The experts agreed that a construction of the bin support structure using welding and bolts was unconventional, but possible. They did not agree that support of the bins by bolts alone, also unconventional, was possible. On the balance of probabilities, it seems to me unlikely that they were supported by bolts alone.
On the evidence the failure of this support structure was caused by the connections between the bins and the support structure becoming too weak to continue carrying the weight of the bins and the materials they held. That was the result of none of these connections ever having been inspected or maintained, as they needed to be. While they were either not visible, or difficult to see, they were, however, constantly exposed to the caustic environment in which the plant operated, the result of the interaction of sand, air and water. They were also subjected to considerable ongoing load shocks. This environment was the reason for the otherwise thorough system of inspection and maintenance which Boral operated at the plant. It was a system which should have extended to these connections. Had it been, the bins would not have collapsed as they did.
What reasonable care required
As discussed by Gummow J in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [49] 'while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care'. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48:
"[T]he tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
In its submissions Boral relied on Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 to argue that there was no evidence as to the balancing economics involved in the maintenance which the bin support structure required and so Mr Gangi's case must fail. There it was observed (at 318 - 319):
"It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. "The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle." That statement, made by Lord Keith of Avonholm in Cavanagh v. Ulster Weaving Co. Ltd. (1960) AC 145, at p 165 was repeated and approved in the House of Lords in Brown v. Rolls Royce Ltd. (1960) 1 WLR 210 The latter case and Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1963] HCA 4; (1963) 108 CLR 362 establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout. Observations to the contrary in McDonald v. British Transport Commission (1955) 3 All ER 789 should be disregarded. For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, "What is 'a proper system of work' is a matter for evidence, not for law books": per Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743, at p 760"
Mr Carrette's evidence was that he observed that Mr Gangi was disoriented when he found him, not surprisingly in the circumstances. That could well account for the differing accounts which Mr Gangi has given over time, as to what occurred to him, but not his claim to have a clear memory of these events in 2013.
Mr Gangi then said that he did not recall any conversations at the hospital, but denied having said that he had hurt himself scurrying up an embankment. He also said that he felt pain in the neck when he was at the hospital, but could not recall what he had then said, or what he later told Dr Nakhle.
Initially, in cross-examination, Mr Gangi could also not recall whether it was in March 2008 that he first complained to Dr Nakhle about the pain in his neck, but later he said he had told Dr Nakhle about his neck pain directly after the accident. Mr Gangi said that when he was discharged from the hospital, he was feeling pain down the right side of his body, predominantly on the right shoulder and his neck just below his right ear lobe. The pain travelled down his arm into his middle and ring fingers. When he saw Dr Nakhle the pain continued and there was also pain down the right side of his back stopping at his thoracic region.
He was off work for four months, experiencing pain constantly, for which he was taking Panadeine forte, which helped make it manageable. He was also often experiencing intrusive thoughts, which interfered with his sleep. Mr Gangi said he had never gone back to work six days, because his work caused him a lot of pain and discomfort on the right side. There had been no improvement after the pain management program he had undertaken, but he was now better than he was three years ago.
His work involved driving, operating the truck, scraping down the cement chute at the rear and generally keeping the truck clean at the end of every day, at the yard. This still caused him pain for which he took painkillers. On his days off he recuperated and sought chiropractic treatment. Otherwise he was at home. He had constant numbness and loss of sensation in his middle and ring finger on the right hand, as well as constant pain in his right shoulder which got worse at work. There was also pain in his neck. This had not improved in the last two years His sleeping had improved, but he still got intrusive thoughts and dreams in which he relived the accident. He was scared every time he stood under a concrete batching plant.
He was no longer able to do any jobs outside the house, which were now done by his wife, and there were a range of domestic chores which he used to do inside the house, which he was no longer capable of performing. Mrs Gangi gave corroborative evidence, which was not challenged.
Conclusions
The evidence establishes that in 2007 Mr Gangi suffered a soft tissue injury when he was escaping from the collapsing plant. Dr Rimmer's cross-examination makes it apparent that even he did not consider otherwise. It may be accepted that how such an injury presents from time to time depends on a variety of things, including when the injury was suffered, what Mr Gangi had been doing prior to examination, what treatment he had received and what medication, if any, he had taken to treat the injury prior to examination. Mr Gangi certainly received considerable treatment and varied pain relief medication over time, with, he claimed, but little effect.
The different conclusions which Dr Harvey-Sutton and Dr Rimmer reached when they examined Mr Gangi cannot be accounted for by any deterioration in his condition. On his own account, he has improved somewhat over time and while he has never been able to return to full-time work because of ongoing pain, his condition has permitted him to perform the work he has performed three days per week, for some years now, so long as he took pain relief. While on the one hand he said that he was now better than he had then been three years ago, on the other, he claims that this improvement has never permitted him to increase his working hours.
That account is not, however, consistent with the apparent physical deterioration which both Dr Rimmer and Dr Harvey-Sutton found on their second examinations of Mr Gangi. Nor is it consistent with Mr Gangi's refusal to even attempt to undertake movements which he claimed caused him pain, when Dr Rimmer examined him on the second occasion, which he could be seen on the surveillance footage to be performing without apparent discomfort.
The footage shows him in a social situation, speaking to other parents over an extended period after he had dropped his child at school; putting a child into a car seat and driving; as well as performing his normal work. It shows him moving normally in all these situations, with a full range of movement, without apparent discomfort.
His evidence that even with ongoing pain medication, he is always in pain when in these situations, was very difficult to credit. When this is considered together with the way in which Mr Gangi gave his evidence in cross-examination and what various objective testing of his physical condition has revealed over time, I simply am unable to accept that his ongoing physical problems are such as to preclude him from all of the physical activities which he claimed ongoing pain precluded him from performing in 2013.
It is against those conclusions that his specific claims must be considered.
Non-economic loss
Mr Gangi claimed an award of damages for non-economic loss of 40% of a most extreme case given the evidence that he was suffering both chronic post-traumatic stress disorder and a chronic physical condition as well. Boral's case was that he did not satisfy the statutory 15% minimum threshold and if it was concluded that he did, his loss could be assessed at no greater than 20%. On all of the evidence which I have discussed, particularly the evidence of his now chronic psychological injury and its impact on his recovery from his physical injury, it seems to me that it must be concluded that Mr Gangi has satisfied the threshold. In the result, I accept Boral's submission as properly reflecting the evidence and assess Mr Gangi's loss at 20%.
In summary, that conclusion rests on the following.
There was no issue that Mr Gangi sustained a psychological injury, as the result of what Boral properly accepted must have been a horrific experience, which has an ongoing impact upon him, whenever he is at work. In the result it conceded that he had suffered a psychological injury as the result of the collapse. He was referred by Boral for assessment by a psychiatrist, Dr Potter. His report was not tendered and so, it must be inferred, his opinion would not have assisted Boral's case. Mr Gangi's psychological injury is now chronic.
Also to be considered is that on the expert evidence, of itself, this injury, even though now chronic, does not now preclude him from working and is of such a nature that it requires but limited further treatment.
On the evidence of both Mr Gangi and Mrs Gangi this injury is still having an impact. Mrs Gangi described him now often to be tense, withdrawn and suffering from mood swings, especially when he returns from work. His injury has affected his life and his enjoyment of activities which he previously participated in, but no longer pursues, as well as his relationship with her and their children. He also no longer performs tasks at home which he previously undertook. On the evidence it cannot be concluded that they are all physically beyond him, but the impact of his ongoing psychological injury must be accepted.
As to the soft tissue injury, when he gave his evidence in 2013, Mr Gangi said he continued to suffer pain in his neck, shoulder, back, arm and fingers, which required him to take painkillers daily. It was not suggested that he was not taking that pain relief. The only possible explanation for all that he claims to continue to suffer, appears to be the ongoing impact of the psychological injury.
Mr Gangi has been otherwise inexplicably slow to recover from the soft tissue injury. In the result, it seems to me that his recovery was to an extent affected by the psychological injury he had certainly suffered, must be accepted. That was first suggested in September 2008 in a report of Ms Alway. Even then, however, his psychological condition was not considered to preclude a return to full time employment. In December 2008, Dr Harvey-Sutton considered Mr Gangi's prognosis to be guarded. She was also of the view that both his psychiatric and physical injuries were the cause of his ongoing disability. Even in March 2009, however, Dr Parmegiani considered that he was capable of performing more work than he was in fact performing in 2013.
In 2013 Mr Gangi considered that his ongoing pain was of such a level that it prevented him from working for more than three days a week and interfered significantly with his physical ability to undertake all of the activities which he undertook without problems beforehand.
Having carefully considered all of the evidence, for reasons I have explained, I have not been able to accept this evidence. I am not satisfied that it has been established that in 2013 Mr Gangi continues to experience ongoing pain of such severity, that it prevents him from working at all, on more than three days a week. That conclusion is simply not consistent with much of the medical evidence to which I have referred, or with what the surveillance tapes reveal.
Both Dr Harvey-Sutton and Dr Rimmer found a presentation consistent with an injury to the brachial plexus. In her cross-examination, Dr Harvey-Sutton accepted that the subsequent testing for brachial plexus strain, which she suspected might have been the cause of Mr Gangi's ongoing pain, suggested that if there had been such a strain, it had resolved. The level of ongoing pain about which Mr Gangi gave evidence in 2013 could not be explained by such a strain and was not consistent with the results of other earlier objective testing and with the movements he can be observed performing on the surveillance footage.
Given what can be seen on that surveillance footage, which even Mr Gangi accepted showed him moving normally, without apparent discomfort, both socially and at work, I am simply not able to conclude that the ongoing consequences of his injuries are as serious as he claims.
Dr Rimmer's conclusion that the explanation for Mr Gangi's presentation was abnormal illness behaviour appears to have had some foundation, although I accept that the ongoing psychological injury must not be overlooked. That explanation was something which Dr Harvey-Sutton had earlier considered and excluded, as she explained in her cross-examination, her view being that the ongoing effects of his injuries were affecting his endurance, so that he was no longer capable of working six days a week.
Despite Dr Harvey Sutton's views, I am satisfied on all of the evidence that it must be concluded that Mr Gangi has not established that it is more probable than not that he continues to suffer the effects of physical and psychological injuries which prevent him working more than three days per week. Still, I am satisfied that the injuries which he has suffered are such that he has met the threshold and must be assessed at 20%.
Economic Loss
Boral's case was that Mr Gangi's damages were limited to the period from the date of injury in December 2007 to the date when he employed a relief driver, around the beginning of June 2009. The arrangement made with the relief driver did not depend on his claimed level of incapacity.
Boral submitted that thereafter, Mr Gangi was fit for full-time duties. Even if he did have any continuing incapacity, which was denied, he had transferable skills which he could have used in other work, if motivated. At best, if any continuing loss of earning capacity was found, it could be no more than one day per week.
Past loss of earning capacity
The parties agreed on the calculation of this loss. There was no issue between them as to an award on this basis, if liability was established. The figure agreed reflects periods of total and partial incapacity from 15 December 2007 to 30 June 2009. Thereafter the daily rate was also agreed, but any further award was opposed by Boral.
Mr Gangi's case was that his injuries precluded him from performing his normal work for more than three days, that being what Dr Nakhle had repeatedly certified, up until trial.
Dr Price had recommended, at about the time of the start of the disputed period, that Mr Gangi engage a relief driver and pursue other work, using his transferable skills. He made no attempt to do the latter. Dr Nakhle thereafter repeatedly certified him as not being fit to work for more than three days a week.
Even so, I am not satisfied that the evidence established that prior to the hearing in 2013, Mr Gangi did not have the capacity even to attempt to perform any work on more than three days per week. Dr Nakhle's certificates do not accord even with Dr Harvey-Sutton's initial view, formed in 2010, that Mr Gangi's capacity had been reduced only by 40%. His work has never increased above a 50% reduction.
Also to be considered is that much of Mr Gangi's work involves driving, which on his own evidence does not cause him problems. There was, however, no evidence of any attempt to obtain other driving work, despite Dr Price's advice that he should attempt other work, in which he could use his transferable skills.
Dr Harvey-Sutton finally considered that Mr Gangi's capacity for heavy lifting was limited and that he should avoid lifting weights greater than 8kg to 10kg. There was no suggestion that his work at Boral involved heavier lifting. His evidence was that it was the work of cleaning the chute after cement pour and cleaning the truck at the end of the day, which causes him ongoing difficulty. This accorded with Dr Harvey-Sutton's views about his difficulties with motions such as pulling, dragging and twisting and that he should avoid working at mid-chest level and above. On his evidence, Mr Gangi performed work of that kind with pain, when scraping the chute after a cement pour and when cleaning the truck at the end of the day.
Dr Harvey-Sutton was finally of the view that it was most likely that Mr Gangi would not regain sufficient endurance to work full-time and that in future, he would continue part time as a cement truck driver, rather than being vocationally redeployed. That view rested entirely on what Mr Gangi had told her. She did not, however, express the view that he would be limited to part time work of three days per week.
The basis for Dr Harvey-Sutton's view that he was unlikely to perform work other than driving a cement truck was not apparent. It is a view which seems unduly pessimistic, given his considerable transferable skills and that his ongoing psychological injury appears affected by continuing such work.
Mr Gangi did not give Dr Harvey-Sutton a history of his 2002 injury. In the 2002 proceedings his evidence was that he intended to sell his truck and run and pursue other work. He then pursued various retraining. On the evidence it is apparent that he does have the transferable skills to which Dr Price referred.
Also necessary to be considered is that Dr Parmegiani, Dr Rimmer and also Dr Nakhle considered that Mr Gangi could have performed more work, in Dr Nakhle's case, if pain had permitted.
Those views have to be considered in light of the fact that the actual days which Mr Gangi worked in this period were not dictated by his physical condition, but by the availability of the relief driver which his company employed to fulfil its contract to Boral.
The evidence, in my view, does not establish that Mr Gangi's condition in the disputed period was such that he could not have performed either his normal duties on more than three days per week, or other suitable duties, using his transferable skills, as Dr Price assessed in June 2009.
Given the other medical opinions I have referred to, his obvious resilience, given the evidence of his eventual recovery from his similar 2002 injuries, the steps he took to retrain and that the three days per week which he was working in the disputed period, were not selected to accommodate his physical limitations, but the availability of a driver, I cannot conclude that this aspect of his claim was established.
In the result I have concluded that in the disputed period Mr Gangi's capacity to work was reduced, largely as the result of the ongoing impact of his psychological injury, but that he was not exercising his capacity to its full extent. Over time his condition improved, as was his evidence. In the result I have concluded that his capacity was in this period initially reduced by only two days per week and by the time of Dr Rimmer's final examination, by one day per week.
Future economic loss
The parties also agreed on various figures on which this aspect of Mr Gangi's claim rested, which was advanced on the basis of a working life to age 67, reduced by 15% for vicissitudes. There was no dispute about the calculation, but Boral disputed that the claim had been established on the evidence.
This aspect of the claim turns on the question of whether the evidence establishes that Mr Gangi is now exercising his earning capacity in full and whether he is likely to be able to continue doing so in future. Mr Gangi's claim is calculated on the basis that his current work reflects his current capacity, which is unlikely to change in future.
Future economic loss must be assessed by reference to loss of capacity to earn income, as discussed in State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [71]:
"71 Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18], said:
"it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act."
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history." They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages ...". The majority (Deane, Gaudron and McHugh JJ) in Malec v J C Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials": Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
"when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."
This claim was pressed on the basis that but for his injuries, Mr Gangi would have generated earnings by operation of his concrete cartage business for Boral, six days a week. His most likely future circumstances were that he would only work three days a week and have to employ alternative labour for the other three days, for the balance of his working life expectancy.
The difficulty with Mr Gangi's claim was that it paid no attention to his ability to perform other work, using his transferable skills; to the views which Dr Harvey-Sutton had formed that his capacity to work had been reduced only by 40%; the other medical evidence to which I have referred; and the surveillance evidence, which showed Mr Gangi now performing his ordinary work and engaging in social activities, as he himself accepted, seemingly without discomfort.
In State of New South Wales v Moss it was observed at [67]:
"67 Thus, in relation to the first of these themes, in Paff v Speed (1961) 105 CLR 549 at 559 Fullagar J said that the "usual method of proving damages under [this] head is by calling evidence to show what the plaintiff could probably have earned during the rest of his life if he had not been injured and what, if anything, he is now capable of earning". The same is true where the defendant is seeking to demonstrate that the diminution of earning capacity is only partial. Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657 said of a plaintiff who had been rendered almost a quadriplegic:
"He has lost his earning capacity, so far as the evidence goes, all earning capacity. In this connexion, however, too little attention it seems to me is paid to the possibilities which have and will yet open up for paraplegics and quadriplegics: but this ought to be the subject of the evidence and not of mere suggestion on the part of judge or advocate."
I do not consider that the evidence established that Mr Gangi's capacity to perform work has been so reduced that in future, he can only work three days per week. The real question necessary to be resolved is whether it establishes that his future capacity is less than full-time. The evidence as to his physical limitations, even as assessed by Dr Harvey-Sutton, does not suggest that he could not perform other work, including driving work, which did not involve the movements which she considered he has difficulties with. Mr Gangi also has other skills, including those attained from the TAFE studies he has pursued and from his trade as an electrician.
Weighing up the risks and chances which the evidence reveals in this case, necessarily means, however, that the ongoing impact of his chronic psychological illness and its impact on his physical condition, may not be ignored.
In the result I have concluded, on balance, that in future there will be some limited ongoing impact on his capacity to work, which I assess at one day per week.
Out of pocket expenses
Past out of pocket expenses
Past out of pocket expenses were also agreed up to 30 June 2009. There is a dispute as to the expenses incurred subsequently. They have all largely been paid by the insurer and Mr Gangi has an obligation to repay this amount, if successful in these proceedings.
There was ongoing treatment for the psychological injury after 30 June 2009. It seems to me that there can be no question that Mr Gangi must have an order in his favour for the cost of that treatment, particularly when it is considered that Dr Parmegiani was also of the view that Mr Gangi might require some limited further treatment in the future.
Other disputed expenses were in relation to medication and chiropractic treatment. There is no question that such treatment was received, but on the evidence it provided but little relief, reflective, it seems to me that the cause of Mr Gangi's ongoing problems were related more to his psychological injury, than his physical condition.
In the result, nevertheless, it seems to me that a case for these past expenses has been established.
Future out of pocket expenses
There is also a case for future treatment expenses on the basis assessed by Dr Parmegiani in his last report and for the claim in relation to the painkillers which Mr Gangi undoubtedly still takes.
I am not able to conclude that a case has been established for the claimed chiropractic expenses, which on the evidence do not seem to be either required or effective.
Domestic assistance
This claim was brought under s 15 Damages for gratuitous attendant care services: general of the Act, which relevantly provides:
"(1) In this section:
attendant care services means any of the following:
(a) services of a domestic nature,
(b) services relating to nursing,
(c) services that aim to alleviate the consequences of an injury.
gratuitous attendant care services means attendant care services:
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.
(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:
(a) there is (or was) a reasonable need for the services to be provided, and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and
(c) the services would not be (or would not have been) provided to the claimant but for the injury.
(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months."
The operation of the section was considered in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 where Allsop P, Beazley and Giles JJA said in a joint judgment at [163]:
"163 Section 15(3) as amended by the 2008 amending Act had the effect of reinstating this Court's decision in Geaghan v D'Aubert [2002] NSWCA 260; 36 MVR 542. The effect of Geaghan is that for a plaintiff to obtain damages for future attendant care services under subs (3), both limbs of the provision have to be satisfied. That is, the services have to had been provided for at least 6 hours per week and 6 months concurrently, before damages are recoverable with respect to the period in question."
The section was further considered in Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470. There Sackville AJA, with whom Tobias JA agreed, discussed what his Honour described as the 'intensity requirement' at [93] to [98]. He concluded that the intensity requirement in s 15(3)(a) is ongoing, with the result that such damages can not be recovered in respect of any period during which the gratuitous services are not provided (or are not to be provided) to the claimant for at least six hours per week.
Here the claim finally pressed was for six hours gratuitous care provided by Mrs Gangi, as well as for the cost of lawn mowing, which on the evidence Mr Gangi would engage a contractor to perform, if he had funds in future.
Mr Gangi gave evidence as to various domestic duties which he had performed before December 2007, such as various cleaning tasks, cooking and a lot of outdoor tasks, including lawn mowing. The latter would certainly fall within the restrictions which Dr Harvey-Sutton considered, but duties such as cooking would not. He estimated that he had undertaken two hours a week internal domestic tasks and three hours external, which he no longer did after the accident. Mr Gangi agreed in cross-examination however, that if necessary, he could now perform those duties if he had to.
Mrs Gangi's evidence was that Mr Gangi had undertaken various tasks in the past, because she had difficulties with them, because she suffered from asthma. It was she who now performed these duties, which included vacuuming and mopping, bleaching the shower and bathtub and cleaning outdoor areas. She assessed this to involve her in four hours internal and three hours external work. That included the lawn mowing. She was not cross-examined about her estimate.
On Mrs Gangi's evidence, it was submitted for Mr Gangi, his claims had been established, given the time that it took her to perform the duties he formerly performed. His evidence, which would not bring him to the statutory threshold, it was submitted, also had to be considered together with Dr Harvey-Sutton's opinions as to his limitations. The test under s 15(2) was whether there was a reasonable need for such services, not whether under sufferance, he could perform those duties.
I take the view that on the balance of probabilities, Mr Gangi has established the claim for past assistance, but not the claim for future assistance. That his wife estimates that she has provided such assistance of some seven hours per week in the past, cannot in the face of the other relevant evidence, including what was seen in the surveillance footage and the evidence which Mr Gangi himself gave as to his capacity in 2013, lead to the conclusion urged that in future he would require at least six hours per week of such assistance.
Dr Harvey-Sutton's opinions were based on information which Mr Gangi provided a considerable time ago. On his own evidence in 2013, having been working three days a week since June 2009, without on the surveillance footage, it appeared, apparent discomfort, he said that he was also capable of doing such domestic tasks, if he had to. Certain of those tasks do not fall within Dr Harvey-Sutton's restrictions. On all of that evidence, it cannot be concluded that an ongoing requirement for assistance for at least six hours per week into the future, has been established.
Orders
In the result there must be judgment for Mr Gangi.
The parties must undertake the resulting mathematical calculation of damages in accordance with the conclusions which I have reached on the various matters dealt with in the judgment. They should provide short minutes within 21 days. The order should include an order that:
All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
The usual order as to costs is that they follow the event, which in this case is an order in favour of Mr Gangi, as agreed or assessed. If the parties wish to be heard on costs they should approach.
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TABLE OF CONTENTS
The issues [8]
Mr Gangi's case and how it was defended [16]
The risk was not insignificant [22]
The risk of harm was foreseeable and one which ought to have been known to a reasonable person in Boral's position [23]
The plant [31]
The system of work at the plant [39]
The collapse [41]
How the plant was maintained [51]
Identified deficiencies in Boral's systems [70]
The bin support structure required maintenance before the bins collapsed [86]
How were the bins supported? [96]
The expert's opinions [122]
What reasonable care required [147]
The requirements of s 5B [159]
Causation [162]
Should inferences be drawn against Boral? [175]
Mr Gangi's Injuries [196]
Mr Gangi's credibility [201]
How was Mr Gangi injured? [213]
Where was Mr Gangi when the plant collapsed? [217]
What the medical records revealed [218]
The doctors' oral evidence [269]
Mr Gangi's evidence at trial [280]
Conclusions [288]
Non-economic loss [294]
Economic Loss [307]
Past loss of earning capacity [309]
Future economic loss [323]
Out of pocket expenses [332]
Past out of pocket expenses [333]
Future out of pocket expenses [336]
Domestic assistance [338]
Orders [347]
Decision last updated: 17 May 2013
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