Gibbs v Haoma Mining NL
[2012] WADC 127
•17 AUGUST 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GIBBS -v- HAOMA MINING NL [2012] WADC 127
CORAM: SCHOOMBEE DCJ
HEARD: 18 MARCH 2011
DELIVERED : 17 AUGUST 2012
FILE NO/S: CIV 1348 of 2007
BETWEEN: BARBARA JEAN GIBBS
Plaintiff
AND
HAOMA MINING NL
DefendantINSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party
Catchwords:
Damages - Personal injury - Suffered during course of employment and directly caused by driving of a motor vehicle - Interpretation of s 93B(3) of Workers' Compensation and Rehabilitation Act 1981 - Whether plaintiff required determination of disability of not less than 16%
Wheel of vehicle disengaged - Whether employer negligent - Duty to provide safe equipment - Duty nondelegable - Whether undertightening or overtightening of wheel nuts was a 'casual act of negligence'
Whether employer entitled to indemnity under its Motor Vehicle (Third Party Insurance) policy - Whether vehicle driven in unsafe or damaged condition - Interpretation of warranty by owner of vehicle in Schedule to Motor Vehicle (Third Party Insurance) Act 1943
Whether Insurance Commission of Western Australia had made an admission of negligence on behalf of the owner of the vehicle
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 93B(3), s 93E(3)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3G, s 6(1)(c) and Schedule
Result:
Plaintiff's claim allowed
Damages to be awarded in the amount of $353,420 subject to 16% determination being obtained
Defendant's third party claim dismissed
Representation:
Counsel:
Plaintiff: Mr L Nugawela & Ms R Sorgiovanni
Defendant: Mr T Lampropoulos SC
Third Party : Mr T Mason
Solicitors:
Plaintiff: Sorgiovanni Legal
Defendant: Hammond Legal
Third Party : Jackson McDonald
Case(s) referred to in judgment(s):
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67
Australian Finance Direct Ltd v Director of Consumer Affairs (Vic) (2007) 234 CLR 96
Baker v The Queen [1975] AC 774
Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 1 AC 233
Bresatz v Przibilla (1962) 108 CLR 541
Cassell & Co Ltd v Broome [1972] AC 1027
Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535
Cowara Contractors Pty Ltd v Turner [2004] WADC 4
Director of Public Prosecutions v Walsh [1990] WAR 25
Galea v Bagtrans Pty Ltd [2010] NSWCA 350
Garcia v National Australia Bank [1998] HCA 48
Gibbs v Haoma Mining NL [No 2] [2011] WADC 148
Grey v Pearson (1857) 6 HL Cas 61
Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 54 NSWLR 210
Jermyn v Spargos Mining NL [2001] WASCA 149
Jongen v CSR Ltd (1992) A Tort Rep 81-192
Kondis v State Transport Authority (1984) 154 CLR 672
Maitland‑Smith v Path Transit Pty Ltd [2009] WASCA 46
Miliangos v George Frank (Textiles) Ltd [1975] QB 487
Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd (in liq) [1968] WAR 10
Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11
Paff v Speed (1961) 105 CLR 549
Panton v Molenaar [1986] NTSC 35
Pollock v Wellington (1996) 15 WAR 1
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Promenade Investments Pty Ltd v NSW (1992) 26 NSWLR 203
Purkess v Crittenden (1965) 114 CLR 164
Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185
Rodgers v Rodgers (1964) 114 CLR 608
Rush & Tompkins Ltd v Greater London Council [1989] AC 1280
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Shine v Williams [2007] WASCA 194
Shorey v PT Ltd (2003) 197 ALR 410
Smith v Wesfarmers Transport Limited [2002] WADC 46
South Shropshire District Council v Amos [1986] 1 WLR 1271
Southgate v Waterford (1990) 21 NSWLR 427
State Government Insurance Commission v CSR Limited [1999] WASCA 36
State Government Insurance Commission v Drew (1988) 5 SR (WA) 48
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863
The President &c. Shire of Arapiles v The Board of Land and Works (1904) 1 CLR 679
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1
Trickett v Queensland Insurance Co Ltd [1936] AC 159
Villasevil v Pickering (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
Wylde v Aristondo 'Arriaza (1997) 25 MVR 539
Wyong Shire Council v Shirt (1980) 146 CLR 40
SCHOOMBEE DCJ:
Ms Gibbs' accident and claim
Ms Barbara Gibbs, the plaintiff, was driving a Landcruiser twin cab vehicle between Port Hedland and the Bamboo Creek mine site operated by Haoma Mining NL (Haoma), the defendant, when the left rear wheel disengaged, the vehicle skidded to the other side of the road, hit the embankment and came to a standstill. Ms Gibbs claimed that as a result of her neck being flung forwards and sideways during the accident and her right shoulder hitting the driver's door, she suffered ongoing neck and shoulder pains as well as headaches.
The accident occurred on 27 September 2003. At that time Ms Gibbs was aged 46 and was employed by Haoma as a cook and cleaner at the Bamboo Creek mine site which is approximately 205 km inland from Port Hedland in Western Australia. Ms Gibbs was sent to Port Hedland to pick up fresh provisions which had inadvertently been left off the weekly order.
The journey to Port Hedland encompassed approximately 50 km on a gravel road from the mine site to the main road to Port Hedland and the remainder on a bitumen road. Although the gravel road was maintained by the Shire of Port Hedland, it was rough and bumpy with granite boulders that had to be avoided. The bitumen road was in a reasonable condition but corrugated. It took about 2½ - 3 hours to drive from the Bamboo Creek mine site to Port Hedland.
While Ms Gibbs was travelling on the bitumen road on her return journey from Port Hedland, about 80km from the mine site, she felt a roughness and bumpiness in the way the vehicle was driving. She slowed down to ascertain what was happening, but this made the problem worse. She sped up to a speed of 110 km which made the bumpiness less. Ms Gibbs did not find this unusual as in her experience corrugated roads were less bumpy when negotiated at speed.
Ms Gibbs then heard a flapping noise and was wondering whether that could be one of the flags that were often attached to vehicles on mine sites. While she was working out whether there was anything wrong with the vehicle, she suddenly felt the back of the car hitting the road surface. She tried to pull the steering wheel to the left, but the vehicle swerved to the wrong side of the road and travelled for approximately 50 m or 100 m. The vehicle bumped into an embankment on the right‑hand side of the road, shook violently back and forth and then turned with its nose facing diagonally towards the left‑hand side of the road.
Ms Gibbs gave evidence that as the rear of the vehicle hit the ground and until it came to a standstill, she was thrown around and her head was 'stretched away from her shoulders'. She thought that the vehicle had overturned and she briefly blacked out, but then realised that it had come to a stop.
Ms Gibbs tried the radio and satellite equipment in the vehicle to contact the mine site, but neither worked. It was a very hot Sunday afternoon and she started to panic. She waited for someone to turn up. While waiting, she took photographs of the rim of the wheel and the position of the vehicle where it had come to a standstill. After a while a council truck passed by and notified another truck which had radio equipment and came to her assistance.
Ms Gibbs and the vehicle were collected by Mr Chris Simpson and Mr Mitch Clifford from the mine site. The wheel was temporarily repaired. This required the replacement of a number of studs on the wheel hub which had broken off.
Ms Gibbs did not feel any pain on the day of the accident, but on the following day started to experience a dull ache in her head, neck, right shoulder and right arm. She was told to work for two days in the office but then asked to resume her work in the kitchen. Ms Gibbs said she managed her cooking and cleaning duties despite the pain that she felt. She tried to relieve the pain by swimming in the pool and using the pool cleaner suction hose to massage her neck and shoulders.
A few weeks after the accident Ms Gibbs was asked to work at Normandy which was another of Haoma's mine camps nearby. Ms Gibbs said the work at that camp was lighter because she had to cook and clean for fewer employees. However, she was harassed by other employees at this mine site. Mrs Gibbs gave evidence that the employees removed the air‑conditioner in the kitchen on the pretext that it was broken, but it was re-installed on the day that she left. They also took down the insect buzzers from the dining room and sprayed insect repellent, knowing that she was sensitive to chemicals. Ms Gibbs said that she was also made to do unreasonable duties, such as cleaning out very dirty, unused accommodation. Ms Gibbs seemed to be of the view that this harassment had something to do with the accident.
In December 2003 Ms Gibbs' three months contract with Haoma expired. She had only been hired for a short period of time while Haoma conducted a gold extraction trial at the Bamboo Creek mine site. Ms Gibbs asked to leave the mine site a few days earlier than the expiration of her contract, because she felt that she could not take the harassment any longer.
Ms Gibbs initially moved back to Perth, but relocated to Cairns in Queensland at the end of December 2008.
Ms Gibbs gave evidence that since the accident she had suffered constant pain across the back of her head, in her neck and right shoulder, pain radiating down her right arm and also down her left leg to her toes. She also suffered from lower back pain and the left leg tended to become sore when she was sitting for a long time. She had become very depressed after the accident, because she was no longer able to work in her chosen field, could not afford things and the legal proceedings caused her a lot of stress. The constant pain also affected her mood and made her more aggressive and unable to concentrate.
Haoma's defence
Haoma denied any liability for the accident. Haoma pleaded that Ms Gibbs was not entitled to recover any damages from her employer because she had failed to obtain a determination that her disability was at least 16% and had failed to elect to make a common law claim against her employer as required by s 93E(3) of the Workers' Compensation and Rehabilitation Act 1981 (the WCA). However, s 93B(3) of the WCA provides that a determination of a disability of at least 16% and the election to claim common law damages do not apply to the awarding of damages to which the Motor Vehicle (Third Party Insurance) Act 1943 (the MVA) applies. Haoma submitted that s 93B(3) of the WCA did not assist Ms Gibbs by reason of the interpretation given to this section by the Full Court of the Supreme Court of Western Australia in Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152.
Haoma also denied that it had been negligent, pleading that it had in place a proper system of maintaining its vehicles and inspecting their safety. Haoma relied upon Ms Gibbs' contributory negligence in failing to stop the vehicle as soon as she felt an unusual bumpiness. Haoma further pleaded that it had not authorised the journey to Port Hedland and that Ms Gibbs had acted outside the scope of her employment.
Haoma's case was further that any neck and shoulder soft tissue injury suffered by Ms Gibbs would, in the normal course of events, have become asymptomatic by now, seven and a half years after the accident, and that Ms Gibbs was fabricating her symptoms, or at least substantially exaggerating them, in order to recover compensation.
Haoma's third party claim
Haoma made a third party claim against the Insurance Commission of Western Australia (ICWA) claiming that it was entitled to indemnity from ICWA under its motor vehicle (third party insurance) policy. In its defence, ICWA pleaded that it was not obliged to indemnify Haoma as Haoma had breached the warranty in its policy that the vehicle would not be driven in an unsafe or damaged condition. During the proceedings counsel for ICWA placed on record that if the court should hold that ICWA had admitted negligence on behalf of Haoma in correspondence between it and Ms Gibbs' solicitors, or it and Haoma's workers' compensation insurer, CGU, then ICWA would indemnify Haoma despite the breach of warranty.
Issues to be decided
Ms Gibbs' claim and the matters raised by Haoma and ICWA require a decision on the following issues:
1.the interpretation of s 93B(3) of the WCA and whether Ms Gibbs is barred from claiming damages against Haoma in the absence of a determination of her disability and an election to pursue common law damages;
2.whether Ms Gibbs was acting within the scope of her employment when she travelled to and from Port Hedland;
3.whether Haoma breached its duty of care as an employer to provide safe equipment to Ms Gibbs in carrying out her work;
4.whether there was contributory negligence on behalf of Ms Gibbs;
5.the extent of any physical injuries suffered by Ms Gibbs;
6.the extent of any mental health injury suffered by Ms Gibbs;
7.Ms Gibbs's loss of earning capacity;
8.assessment of damages;
9.whether the correspondence between ICWA and Ms Gibbs' solicitors or ICWA and CGU contained an admission of negligence by ICWA on behalf of Haoma;
10.whether the vehicle was driven in an unsafe or damaged condition and, if so, whether Haoma breached the warranty in its insurance policy even if it had no knowledge of the unsafe or damaged condition.
Interpretation of s 93B(3) of the WCA
The first issue to be decided is whether Ms Gibbs is barred from recovering any damages from Haoma because she failed to obtain a determination that her disability was at least 16% and failed to elect to make a common law claim against Haoma. Counsel for Ms Gibbs submitted that such a determination was not necessary by reason of s 93B(3)(a) of the WCA.
Section 93B(3)(a) provides as follows:
(3)This Division (which requires the determination) does not apply to the awarding of ‑
(a)damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies.
In Western Metals Zinc NL v Wesfarmers Transport Ltd, [25] ‑ [27] the Full Court of the Supreme Court of Western Australia held that after the restrictions on damages claimable under the MVA came into operation on 3 May 1994 (by the Motor Vehicle (Third Party Insurance) Amendment Act 1994 (WA)), s 93B(3)(a) of the WCA no longer provided an exemption from obtaining the 16% determination. If I understand the reasoning of the Court of Appeal correctly, their Honours held that at the time that s 93B(3)(a) came into effect on 24 December 1993 (as inserted by the Workers' Compensation and Rehabilitation Amendment Act 1993 (WA)), there were no restrictions on the amount of damages claimable under the MVA and a claim made under that act was necessarily a claim for common law damages. Accordingly, their Honours held that s 93B(3)(a) had to be read as if the words 'common law' had been inserted at the beginning of that subparagraph. This means that s 93B(3)(a) had to be read as follows:
(3)This Division does not apply to the awarding of –
(a)common law damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies.
The Full Court further held that because damages claimable under the MVA were now restricted under s 3A – s 3E of that act, they could no longer be described as 'common law damages' but constituted 'hybrid damages'. This meant that the exemption in s 93B(3)(a) of the WCA no longer applied where a plaintiff claimed damages under s 3A ‑ s 3E of the MVA.
The result of this finding by the Full Court seems to be that after 3 May 1994 any claim against an employer, who was the owner or driver of the motor vehicle involved in the accident (with the result that the MVA applied) no longer fell under the exemption in s 93B(3)(a) and required a determination of a 16% disability.
Counsel for Ms Gibbs submitted that this court should not follow the reasoning in Western Metals Zinc NL because the decision in that case was obiter. It does not seem to me that the reasoning adopted in the interpretation of s 93B(3)(a) was obiter. At best for Ms Gibbs, the Full Court may have relied on the incorrect assumption that the defendant in that case was the owner of the vehicle involved in the accident and that the MVA applied, but that does not mean that the reasoning employed by the Full Court in interpreting s 93B(3)(a) was obiter.
The facts in Western Metals Zinc NL were that a Mr Smith had suffered an accident whilst unloading a motor vehicle and had sued the defendant, who he alleged was the owner of the motor vehicle. The defendant had joined Mr Smith's employer who, it was accepted for purposes of the appeal, was neither the owner nor the driver of the vehicle. The issue to be decided was whether the third party notice by the alleged owner of the vehicle against the employer should be struck out as not disclosing a cause of action on the basis that the employer could not be jointly liable with the alleged owner of the vehicle to Mr Smith, because Mr Smith never obtained a 16% determination.
The Western Metals Zinc NL case therefore called into play both the MVA and the WCA, but, in contrast to the present case, the employer was not the owner or driver of the vehicle involved in the accident. The Full Court did not explain why, in those circumstances, the MVA applied to Mr Smith's claim against his employer.
The trial judge, Martino DCJ, had found that the claim fell under the MVA because of s 3A of the MVA which provides that s 3C and s 3D apply to the awarding of damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle (Smith v Wesfarmers Transport Limited [2002] WADC 46 [12]). There is no requirement in s 3A for the claim to be against the owner or driver of the vehicle. Martino DCJ came to the conclusion that s 3A was not limited to claims against persons insured under the MVA, that is, owners and drivers of motor vehicles, but applied to all claims for bodily injury directly caused by, or by the driving of, a motor vehicle.
The Full Court proceeded on the basis that, in light of its finding that s 93B(3)(a) no longer provided an exemption where a claim was made under s 3A – s 3E of the MVA, it was unnecessary to decide whether the MVA applied to the facts of the case or not. The Full Court said the following in this regard at [27]:
In these circumstances it is unnecessary to decide whether, on their proper construction, ss 3A-3E of the Insurance Act apply only to the awarding of damages against an insured person as defined in that Act.
Counsel for Ms Gibbs submitted that the MVA did not apply to Mr Smith's potential claim against his employer, because the employer was neither the owner nor the driver of the vehicle involved in the accident and that this made the decision in Western Metals Zinc NL obiter. Counsel did not provide any detailed submissions on the application of the MVA to employers who are not owners or drivers of the vehicle and it appears that this question has not been the subject of judicial consideration other than by Martino DCJ. However, an interpretation of s 3A of the MVA different to that arrived at by Martino DCJ could sensibly be adopted.
Section 3A has to be read in the context of the whole of the MVA, the purpose of which is stated to be the following:
An Act to require owners of motor vehicles whilst on a road, to be insured against liability in respect of deaths or bodily injuries directly caused by, or by the driving of, such motor vehicles, whether caused on or off a road, to make certain provisions in relation to such insurance and in relation to the awarding of damages in respect of such bodily injuries, and for other purposes.
Further, s 16 of the MVA, which provides for jurisdiction to the courts to deal with actions or proceedings regulated by the MVA and to award damages in such actions or proceedings, defines 'action or proceedings' as follows:
(1)In this section ‑
action or proceedings means action or proceedings making a claim for damages, in respect of the death of or bodily injury to a person directly caused by, or by the driving of, a motor vehicle, against the owner or driver of the vehicle or against the Commission;
In the context of the whole of the MVA it is likely that s 3A was not intended to regulate the damages to be awarded to a plaintiff who had been injured in an accident involving a motor vehicle and had made a claim against his employer for negligence, where the employer was neither the owner nor driver of the vehicle. Such a claim could, for example, arise out of the failure by the employer to provide a safe system of work. This was in fact the type of claim made by Mr Smith against his employer in Western Metals Zinc NL.
If the MVA was not intended to regulate claims against employers who were neither the owner nor driver of the motor vehicle, then the MVA had no application to Mr Smith's potential claim.
This situation is now regulated by s 3G of the MVA. Section 3G was inserted by s 5 of the Motor Vehicle (Third Party Insurance) Amendment Act 2006 and came into operation on 1 July 2006. Section 3G provides as follows:
(1)This section has effect if the death of or bodily injury to a person is directly caused by, or by the driving of, a motor vehicle in circumstances giving rise to the owner of the motor vehicle being liable to pay compensation under the Workers’ Compensation and Injury Management Act 1981 in respect of that death or bodily injury or which would have given rise to liability of that kind but for section 22 of that Act.
(2)If this section has effect, neither this Act nor a contract of insurance under this Act apply in respect of liability for negligence which may be incurred by the owner in respect of the death or bodily injury other than liability for the negligent driving of the motor vehicle.
(3)In subsection (2) ‑
owner includes any person for whose negligence the owner is legally responsible.
Section 6G therefore excludes the application of the MVA where the defendant is an employer, even though he may also be the owner of the vehicle, unless the claim arose from negligent driving.
In the second reading speech to the bill preceding the amendment act, read on 18 May 2005, the Honourable E S Ripper, Minister for Government Enterprises, made the point that 'it was never the intent of this act (the MVA) to have the third party insurance fund provide compensation for what clearly falls within the responsibility of workers' compensation-employers' indemnity insurance'.
However, this was not the law at the time that Western Metals Zinc NL was decided. Prior to the enactment of s 6G, it seems to have been assumed that the MVA also applied to claims against an employer who was the owner or driver of the vehicle, even if the claim was not based on the driving of the vehicle but on the employer's negligence in not implementing a safe system of work (see, for example, State Government Insurance Commission v CSR Limited [1999] WASCA 36).
Nevertheless, there is a good argument based on the interpretation of the MVA as a whole and its stated purpose that even prior to the enactment of s 3G the MVA did not apply to a plaintiff's claim against an employer who was neither the owner nor driver of the vehicle.
Although the Full Court stated that it was not necessary to decide whether the MVA applied to Mr Smith's claim against his employer, the Full Court must have assumed for purposes of the interpretation of s 93B(3)(a) that the MVA applied, as it termed the damages claimed by Mr Smith under s 3A ‑ 3E to be 'hybrid damages'. However, this only means that the Full Court may have proceeded on an incorrect assumption.
The Full Court still produced a dictum on the interpretation of s 93B(3)(a) and made it clear at [27] that Mr Smith was not exempted by s 93B(3)(a) of the WCA and needed a determination of at least 16% before he was entitled to receive damages. That reasoning was the ratio decidendi of the case and a lower court is bound by it.
Even if the Full Court had made an incorrect assumption regarding the application of the MVA to Mr Smith's claim against his employer, that would only mean that it had arrived at its decision per incuriam. A lower court is not entitled to deviate from a decision arrived at by a higher court per incuriam: Cassell & Co Ltd v Broome [1972] AC 1027, 1131; Baker v The Queen [1975] AC 774, 788 and Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, 177.
Counsel for Ms Gibbs further submitted that the MVA did not apply to Mr Smith's claim as Mr Smith was injured while he was unloading the motor vehicle. However, it is apparent from the reasoning that the Full Court assumed for purposes of the appeal (which dealt with a strike-out application) that Mr Smith would be able to prove that his injury was caused directly by the motor vehicle or by the driving of the motor vehicle as required by s 3A and s 16(1) of the MVA.
Mr Lampropoulos SC, counsel for Haoma, who was also counsel for the defendant in Western Metals Zinc NL could not shed any further light on the reasoning by the Full Court and pointed out that the argument that damages claimed under s 3A – s 3E of the MVA were 'hybrid' damages and did not fall under s 93B(3)(a) of the WCA was not raised at first instance or on appeal.
Counsel for Ms Gibbs submitted that the mere fact that this argument had not been canvassed at the appeal meant that the findings by the Full Court in this regard were obiter. Counsel for Ms Gibbs relied on the decision by Kirby J in Garcia v National Australia Bank [1998] HCA 48 [56]. However, all that His Honour referred to is the well‑known rule that a judicial decision is not binding unless it is upon a matter in issue in the proceedings upon which a finding is necessary to arrive at that decision. Justice Kirby also held '… the remarks will not be part of a binding rule unless they relate to an issue in contention which had to be decided by the Court to reach its order'. Counsel for Ms Gibbs relied on the latter sentence for his submission that an issue which had not been fully argued by the parties was not 'an issue in contention'.
There is a difference between an issue in contention and a finding or decision that the court makes in relation to the issue. The issue in contention was whether s 93B(3)(a) of the WCA exempted Mr Smith from obtaining a determination of 16%, whereas the particular finding by the Full Court was that a claim for damages under s 3A – s 3E of the MVA was a claim for 'hybrid' damages and therefore s 93B(3)(a) did not apply. The fact that the particular manner of resolving the issue in contention was not argued, does not mean that the finding or decision was obiter or even per incuriam. A court may make its own researches and consult authorities: Miliangos v George Frank (Textiles) Ltd [1975] QB 487, 502 (approved by the House of Lords, [1976] AC 443, 478).
In Western Metals Zinc NL two issues were in contention. Firstly whether the MVA applied and secondly, if so, whether s 93B(3)(a) provided an exemption to Mr Smith from obtaining the 16% determination. The Full Court put the first issue to one side and decided the second, which conclusively dealt with the strike out application.
Even if it could be said that the reasoning in Western Metals Zinc NL was obiter, because it was based on a wrong assumption that the MVA applied, it would nevertheless be strong persuasive authority for a lower court.
Counsel for Ms Gibbs further submitted that I should not follow the decision in Western Metals Zinc NL, even if I regarded it as persuasive authority, as it was 'clearly wrong'. Counsel for Ms Gibbs argued that the Full Court should not have held that s 93B(3)(a) was 'rendered nugatory' merely because of the introduction of the restrictions on the awarding of damages under s 3A – s 3E of the MVA.
However, the Full Court's interpretation of s 93B(3)(a) did not mean that this section had no more role to play. At the time that the judgment in Western Metal Zinc NL was delivered there were still some common law damages which had not been restricted by the MVA, namely damages for loss of earning capacity. Section 3F of the MVA which now also restricts damages for loss of earning capacity was only introduced in 2006. Further, s 93B(3)(a) would also have had a role to play in respect of claims relating to an accident which occurred prior to the introduction of the restriction of damages under the MVA.
Counsel for Ms Gibbs also relied on the judgment by McLure JA in Maitland‑Smith v Path Transit Pty Ltd [2009] WASCA 46 and pointed out that McLure JA was one of the judges of the Full Court in Western Metals Zinc NL. Her Honour came to the following conclusion at [64]:
The constraints on awards of damages in the Workers' Compensation and Injury Management Act 1981 (WA) do not apply to the awarding of damages to which the Motor Vehicle Act applies (s 93B(3)).
There is no explanation in Maitland‑Smith of why her Honour came to that conclusion and no reference to Western Metals Zinc NL. However, her Honour's remarks were obiter, and stated to be so, as the main issue decided in Maitland‑Smith was whether the plaintiff's injury had been caused by the motor vehicle or its driving.
Counsel for Ms Gibbs pointed out that in Maitland‑Smith the MVA applied, because the plaintiff had made a claim against his employer who was also the owner of the vehicle. Further, although the case was decided in 2009, the accident suffered by the plaintiff occurred on 20 May 2000 which was prior to the introduction of s 3F and s 3G of the MVA. There was therefore no obvious distinction between the facts in Western Metals Zinc NL and Maitland‑Smith which would have justified the apparently different conclusions.
Counsel for Ms Gibbs also relied on the decision of Blaxell DCJ in Cowara Contractors Pty Ltd v Turner [2004] WADC 4, [9] and [14] in which his Honour referred to Western Metals Zinc NL but did not read it in the manner that I have understood it. Blaxell DCJ came to the conclusion that where the plaintiff had sued his employer at common law, but it was a component of the cause of action that the injury was caused by a motor vehicle, s 93B(3)(a) of the WCA did provide an exemption from having to obtain a 16% determination. On my reading of Western Metals Zinc NL, this finding is contrary to what the Full Court held in that case. Blaxell DCJ did refer to Western Metals Zinc NL, but as authority for the proposition that the restrictions of s 3A – s 3E of the MVA would still apply to the plaintiff's claim. I am unable to read Western Metals Zinc NLin this manner, which may be entirely due to lack of comprehension on my part, but counsel could also not provide any further assistance.
There is one issue concerning the Full Court's interpretation of s 93B(3)(a) in Western Metals Zinc NL which was not raised by counsel for Ms Gibbs, but should be ventilated. It is appropriate for a lower court to draw attention to matters of doubt about a decision of a higher court even if it is bound by that decision: Proctor v Jetway Aviation Pty Ltd (177).
The Full Court gave s 93B(3)(a) a static interpretation. In other words, it held that when the section was enacted in December 1993, the meaning of the phrase 'the awarding of damages to which the MVA applies' could only have referred to common law damages and that this meaning continued to apply up until Western Metals Zinc NL was decided in 2003. The Full Court did not refer to s 16(1) of the Interpretation Act 1984, which provides as follows:
(1)A reference in a written law to a written law shall be deemed to include a reference to such written law as it may from time to time be amended.
Prior to the enactment of the Interpretation Act 1984 the common law presumption was that, in the absence of an indication that a reference to another piece of legislation was to be ambulatory, the reference was to be taken to be to the legislation in the form it took at the date the referring legislation was made. Any subsequent amendments to the legislation referred to would not be taken into account: Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535 at 546 and Pearce and Geddes, Statutory Interpretation in Australia, 7th ed, [6.2].
However, after the enactment of s 16(1) of the Interpretation Act 1984 the common law presumption has been reversed. If the piece of legislation referred to is to be fixed as at the date that the referring legislation was made, this will have to be spelled out: Promenade Investments Pty Ltd v NSW (1992) 26 NSWLR 203, 224. In Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 54 NSWLR 210, 223, Campbell J described the statutory presumption as a particular application of the maxim that legislation is deemed to be 'always speaking'.
If s 16(1) is applied to the interpretation of s 93B(3)(a), then the phrase 'the awarding of damages to which the MVA applies' refers to the MVA as it existed at the time that the damages were likely to be awarded in Western Metals Zinc NL. At that time the MVA already included s 3A – s 3E which contained the restriction on damages to be awarded. Accordingly, there was, with respect, no scope for deciding that the damages referred to in s 93B(3)(a) were 'common law damages' which were different in nature to the damages claimable in accordance with the MVA which were 'hybrid damages'. At the time that Western Metals Zinc NL was decided the damages referred to in s 93B(3)(a) were the damages claimable under the MVA. If such damages were claimed in accordance with the MVA, the exemption in s 93B(3)(a) applied.
However, the question whether this argument is right or wrong does not make a difference to the fact that this court is bound by the interpretation of s 93B(3)(a) adopted by the Full Court in Western Metals Zinc NL. As I understand Western Metals Zinc NL, the Full Court held that after the introduction of the restrictions on damages in the MVA, the exemption in s 93B(3)(a) of the WCA no longer applied, unless the claim did not fall within s 3A - s 3E of the MVA. This reasoning led the Court of Appeal to the firm conclusion that Mr Smith had to obtain a 16% determination prior to recovering damages from his employer.
The decision in Western Metals Zinc NL may be difficult to understand and to reconcile with the findings by McLure JA in Maitland‑Smith and by Blaxell DCJ in Cowara Contractors Pty Ltd v Turner, but this court is bound by what the decision seems to say.
In this case Ms Gibbs is bringing a claim against her employer, who was the owner of the vehicle involved in the accident. All the damages claimed by her are currently restricted under s 3A ‑ 3F of the MVA and are therefore, according to the reasoning in Western Metals Zinc NL 'hybrid' damages. This means that they do not fall under s 93B(3)(a) of the WCA and Ms Gibbs is therefore not exempted from obtaining a 16% determination.
If s 3G of the MVA had retrospective application, Ms Gibbs would also be obliged to obtain a determination prior to the awarding of damages. However, it is not necessary to determine the issue of retrospectivity of s 3G, as I have already found that I am bound by the decision in Western Metals Zinc NL and this means that Ms Gibbs has to obtain a determination of at least 16%.
Counsel for both parties were in agreement that pursuant to s 93E(3) of the WCA it was open to Ms Gibbs to apply for a determination that her disability was at least 16% and to make an election to bring a common law claim against her employer at any time prior to damages being awarded to her. The parties therefore agreed that it would be appropriate for this court to deliver reasons for the decision in this case without handing down a judgment on the award of damages in order to allow Ms Gibbs, if necessary, to obtain the required determination. This is what I intend to do.
Whether Ms Gibbs was acting within the scope of her employment
Haoma submitted that it did not have the usual duty of care ascribed to an employer, because Ms Gibbs acted outside the scope of her employment when she undertook the trip to and from Port Hedland.
I should say at the outset that I am unable to accept Ms Gibbs' evidence in its totality. This is because of the significant psychological issues that have arisen as a result of the accident and which I will refer to later. I accept that Ms Gibbs did not try to mislead the court and gave what she believed was an honest account.
However, there is no doubt that she has developed a psychological condition as a result of which she experiences extreme anger and resentment against Haoma and the medical and legal profession. Her recollection of events and assessment of matters is materially affected by this psychological condition. Ms Gibbs appears to have become fixated on her particular interpretation of certain events, for example, that she was harassed by representatives of Haoma while she was still working at the mine site after the accident, and has persuaded herself of the existence of certain matters.
This does not mean, however, that I should reject all of her evidence. It obviously makes it more difficult to decide which parts of her evidence are reliable, but insofar as her evidence is supported by other material or exhibits the likelihood of being true, I intend to accept her evidence.
On the issue whether her trip to Port Hedland was within the scope of her employment, I accept her evidence. Ms Gibbs said that on the date of the accident she was woken by Ms Sharon Winsor, who was the administration manager at the Bamboo Creek mine site. Ms Winsor asked her to drive to Port Hedland to pick up the fresh provisions which had inadvertently been left off the order. Ms Gibbs said when she arrived at Action Supermarket in Port Hedland a number of large boxes and eskies had already been pre‑packed and were waiting for her, including a box with several dozens of eggs. Some of these boxes came from the wholesaler who usually supplied provisions to the Bamboo Creek mine site. Ms Gibbs also signed some documentation in relation to the provisions.
I accept Ms Gibbs' evidence that she was asked by Ms Winsor to undertake this trip. It is unlikely that Ms Gibbs, who had only been in her job as a cook and cleaner since 17 September 2003 and had apparently not driven any of Haoma's vehicles on a long distance trip before the day of the journey to Port Hedland, would have made the arrangement with Action Supermarket and the wholesale supplier of her own accord and taken off in one of Haoma's vehicles for that purpose.
Ms Sharon Winsor said in evidence that she could not recall authorising the trip, but she did not deny that she had done so. This was a matter that she would obviously have put her mind to after the accident occurred, and whether she had or had not authorised that trip, this would be a matter which she would still remember today. I therefore do not accept that Ms Winsor had no recollection with regard to whether she authorised the trip or not and do not accept her evidence.
Mr Peter Cole, the general manager for Haoma, who was stationed at the Bamboo Creek mine but was away on business when the accident occurred, gave evidence that when he returned approximately four days later, he tried to investigate who had authorised the trip to Port Hedland. Mr Cole gave evidence that no‑one had a good recollection of who had authorised the journey. In light of the fact that Mr Cole made these investigations shortly after the accident, it is much more likely that no‑one owned up to having authorised the trip. Mr Cole did not state that each employee who was interviewed by him, including Ms Sharon Winsor, categorically denied having given such authority.
It is not outside the scope of a cook's employment to collect fresh provisions which have inadvertently been left off a regular order. Where the only available shops are a considerable distance away from the place of employment, it is part of the employment to drive there and pick them up. I reject the suggestion that Ms Gibbs made the trip on her own decision and merely picked up a dozen eggs, as was suggested in Haoma's defence. No evidence was led to that effect. The photographs of the vehicle taken by Ms Gibbs after the accident show that there are a number of boxes stacked on the back seat of the vehicle.
Accordingly, I find that the trip was within the scope of Ms Gibbs' employment.
Whether Haoma breached its duty of care
There was no dispute between the parties that Haoma, as Ms Gibbs' employer, had a duty of care to take all reasonable steps to provide safe equipment to Ms Gibbs for performing her work, including a safe vehicle. The issue in dispute was whether Haoma had breached the duty of care and whether it was responsible for any negligence by its independent contractor, Pilbara Automotive, which had made repairs to the vehicle and refitted its wheels approximately 5½ months prior to the accident.
Ms Gibbs pleaded the following particulars of negligence in her statement of claim:
1.Haoma failed to adequately inspect the vehicle so as to ensure that it was safe to drive;
2.Haoma failed to identify the risk of the wheel on the vehicle falling off;
3.Haoma failed to take adequate steps to avoid the risk of the wheel falling off;
4.Haoma failed to ensure that Ms Gibbs was not required to drive the vehicle;
5.Haoma failed to take adequate steps to ensure Ms Gibbs' safety.
In opening, counsel for Ms Gibbs essentially relied on two aspects of negligence. Firstly, counsel for Ms Gibbs indicated that the expert evidence would establish that at least one wheel nut on the left rear wheel must have been missing before Ms Gibbs commenced her journey and that Haoma should have noticed this and rectified the problem. Secondly, the expert evidence would show that insofar as the wheel nuts were still in place, they were loose and that Haoma failed to check the wheel nuts on a regular basis.
The trial was conducted on the basis that these were the allegations of negligence. Counsel for Ms Gibbs did not ask any questions of Haoma's witnesses which were geared to proving that Haoma was also negligent because its employees, or Pilbara Automotive, did not properly tighten the wheel nuts when the wheel was last refitted.
The court raised with counsel for Haoma, during closing submissions, whether such a finding of negligence was open on the evidence. Counsel for Haoma refuted any such suggestion. Counsel for Ms Gibbs did not rely in his closing submissions on such ground of negligence. The closing submissions by counsel for Ms Gibbs, both in writing and oral, focused on Haoma having breached its duty of care by failing to regularly inspect the wheel nuts to ensure that they were still properly secured.
A few days after completion of the trial, Ms Gibbs made an application to re‑open the case, amend her statement of claim to plead negligence in failing to properly tighten the nuts (both by Haoma and Pilbara Automotive) and to recall witnesses. The application was allowed, essentially because both parties' experts had concluded that the cause of the disengagement of the wheel was either under‑tightening or over-tightening of one or more nuts when the wheel was last refitted, Haoma had pleaded in its defence that it had in place a proper system of servicing and maintaining its vehicles and had called Mr Murray O'Keefe, the owner of Pilbara Automotive as a witness to testify to this.
Accordingly, Ms Gibbs was allowed to specifically plead that Haoma had a non-delegable duty to provide a safe vehicle and was negligent in that either its servants or Pilbara Automotive under-tightened or over-tightened the nuts on the wheel: Gibbs v Haoma Mining NL [No 2] [2011] WADC 148. Both parties were allowed to re-call their respective experts and also Mr O'Keefe.
Unfortunately there was a considerable delay before the resumed hearing took place. Ms Gibbs intended to call Mr O'Keefe, but he was taken to hospital with an unexpected illness. Mr O' Keefe's signed statement was then tendered under s 79C(2)(b) of the Evidence Act 1906. Dr Casey, who had previously given evidence for Ms Gibbs gave further evidence. Haoma declined to lead further evidence, and ICWA did not wish to partake in the further hearing.
There are essentially three allegations of negligence which have to be dealt with. Firstly, that Haoma failed to notice that at least one nut was missing from the left rear wheel and failed to rectify the problem. Secondly, that Haoma failed to regularly check whether the nuts on the wheel were loose, and thirdly that either a servant of Haoma or Pilbara Automotive incorrectly tightened one or more nuts on the wheel when it was last refitted.
At the hearing of the application to amend the statement of claim, counsel for Haoma submitted that Haoma could not be liable pursuant to its non‑delegable duty of care for the negligence of a servant of Pilbara Automotive in under-tightening or over-tightening the wheel nuts, as this would have been a 'casual act of negligence' and not a breach of Haoma's duty. This submission was rejected in Gibbs v Haoma Mining NL [No 2].
An employer has a non‑delegable duty to exercise reasonable care to provide its employee with a safe place of work, a safe system of work and safe plant and equipment: Kondis v State Transport Authority (1984) 154 CLR 672, 687 – 688; Galea v Bagtrans Pty Ltd [2010] NSWCA 350 [65]. This duty extends to the exercise of reasonable care in the maintenance and repair of any equipment provided to the employee. Where the employer chooses to delegate this responsibility to an independent contractor, the employer is not relieved of legal responsibility if his employee's injury was the result of negligence by the independent contractor in regard to the maintenance and repair of the equipment: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 [61]; Galea v Bagtrans Pty Ltd [67].
As long as the negligent act was committed within the scope of the delegated duty of care (ie, to exercise reasonable care in the repair and maintenance of the vehicle), the employer is liable for the negligent act and it is not considered to be a 'casual act of negligence': TNT Australia Pty Ltd v Christie [47]; Galea v Bagtrans Pty Ltd [65].
This means that Haoma is legally responsible for any negligence by Pilbara Automotive in carrying out the repairs and maintenance of the vehicle.
Haoma's duty of care to Ms Gibbs was to provide a safe vehicle which duty included taking all reasonable care in the repair and maintenance of the vehicle. In determining the standard of care, the court has to take into account the magnitude of the risk, the degree of the probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which Haoma might have had: Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 – 48.
The vehicle was repaired and regularly serviced by Pilbara Automotive. Mr O'Keefe gave evidence that the vehicle last underwent repairs on 9 April 2003 which required the wheels to be removed. Mr O'Keefe said that it was practice by himself and his four employees to retighten nuts on wheels with an air operated rattle gun to which a torque adaptor had been fitted. The torque adaptor would be set according to the manufacturer's recommendations for the particular vehicle. After the wheels had been fitted in this manner, the nuts would again be checked with the use of a breaker bar (a long spanner) to make sure that the rattle gun had not malfunctioned and that the nuts were not still loose.
Mr Cole gave evidence that it was practice at Bamboo Creek to replace any tyre which exhibited more than 40% wear. He had no knowledge whether the left rear tyre on the vehicle was changed at any time after April 2003 and no records were kept by the workshop at Bamboo Creek regarding the replacement of tyres. The log and service book of the vehicle could no longer be found.
Mr Cole stated that it was practice at Bamboo Creek that before any vehicle was used for a trip to Port Hedland it would be checked in the workshop at the mine site. However, it was not practice to check the tension of the wheel nuts during a pre-trip inspection. Mr Cole said he had never had any problem with a wheel disengaging on any of the vehicles being used at the Bamboo Creek mine site.
Mr Chris Simpson, who was a mechanical fitter in charge of the maintenance of the process plant at Bamboo Creek and also worked on the mine's vehicles from time to time, gave evidence that a pre‑trip inspection involved refuelling the vehicle, inspecting the oil and water and doing a 'general check around the vehicle'.
Mr Cole gave evidence that it was compulsory for any person who was about to take a vehicle from the mine site on a lengthy trip to walk around the vehicle to check whether there were any obvious problems. Mr Brody Finlay, who was an apprentice electrician at the mine site at the time, said the driver's check required the driver to walk around the vehicle to see whether it might have a flat tyre or 'a piece hanging off'.
Expert evidence was presented at the trial to explain the likely cause of the wheel disengaging and whether it would have been obvious just prior to the trip that a nut was missing from the left rear wheel.
Dr Robert Casey, a mechanical engineering consultant, gave evidence on behalf of Ms Gibbs. He said that since about 2000 he had investigated at least 10 accidents involving a wheel detachment. Dr Casey was of the view that the most likely cause for the wheel having become detached was that either some of the wheel nuts had been under-tightened or all the wheel nuts had been over‑tightened. Dr Casey explained that if a wheel nut was under‑tightened it would work itself free in less than 10 hours' driving time. Once this occurred the wheel would no longer move in a concentric position which meant that the studs adjacent to the loose wheel nut would be repetitively bent. This would eventually result in the adjacent stud failing as a result of fatigue.
Dr Casey estimated that the time required for the first stud to fail as a result of fatigue would be at least 10 hours. The fatigue process would then cascade to the next wheel stud which would fail in a similar manner after a further minimum of 10 hours. Eventually the remaining two or three studs would fracture very rapidly because of overload on the remaining studs and the wheel would detach.
Dr Casey was of the view that it could be seen from the photograph of the wheel hub taken by Ms Gibbs that at least four or five studs had been fractured. It was not possible to see the sixth stud on the photograph and this could therefore have remained in place. If the sixth stud had remained in place, this would support the theory that one nut must have been inadequately tightened, worked itself loose and left the stud intact.
Dr Casey did not accept that all nuts on the wheel could have been under-tightened. He said in that case they would all have fallen off within 10 hours of driving time and the wheel would have disengaged within that time period.
Dr Casey explained that over‑tightening of the nuts would also damage the studs and they would fatigue one by one via the same fatigue mechanism. If three or four studs had fatigued, the remaining two or three would fracture rapidly by reason of overload. The initial fatigue process of the first number of studs was also likely to take at least 10 hours for each stud. This scenario was likely to have occurred if all studs had fractured.
Dr Casey was of the view that in both instances, whether there was under-tightening or over‑tightening, it would have taken at least 30 ‑ 40 hours for the fatigue process to have occurred in three or four studs with the remaining three or two having fractured rapidly by way of overload. Dr Casey stated that if, as Ms Gibbs said, she had been driving for only approximately five hours before the wheel dislodged, at least one, if not more nuts, would have been missing for 25 hours of on‑road time before she set out from the Bamboo Creek mine site. This was because the fatigue process cascading from one stud to the next took at least 10 hours between each stud and in addition to a loosely tightened nut which would have fallen off any broken stud would also have resulted in part of it and the nut being missing from the wheel. Dr Casey was therefore of the view that it must have been obvious prior to Ms Gibbs embarking on her trip that there was at least one nut missing from the wheel.
Mr Martin Simms, a consulting mechanical engineer, gave evidence on behalf of Haoma. He said that in his 22 years as a private consultant he had investigated numerous vehicle accidents and mechanical failures. Mr Simms agreed with Dr Casey that the fact that four or five studs appeared to have been fractured indicated that this had occurred by way of the fatigue mechanism described by Dr Casey and that the cause of this was either under-tightening of the nuts or over-tightening. However, Mr Simms was of the view that without having seen the fractured studs or knowing whether the sixth stud had remained intact, it was not possible to conclude, as Dr Casey had, that either only one nut was under‑tightened or all nuts were over‑tightened.
Mr Simms was of the view that another possible scenario was that all the nuts had not been properly tightened, but had been held in place by dirt or rust until the final overload of the remaining studs occurred and the wheel fell off. Although the nuts would have remained in place, they would not have exerted sufficient tension on the studs and this would have caused the studs to progressively fail. Mr Simms said he knew of a case where the driver had admitted to under‑tightening the nuts and yet had driven a considerable distance before the wheel had finally dislodged. Mr Simms was of the view that this could mean that all nuts were apparently still in place when Ms Gibbs left the Bamboo Creek mine site, although some studs had already fatigued. Mr Simms thought it unlikely that a missing nut on a wheel would not have been detected on a mine site.
Mr Simms gave evidence that the wheel would have had to be significantly loose on the studs before Ms Gibbs would have heard any rattling noise. If Ms Gibbs had driven for approximately 10 km while hearing a noise, this would fit in with the final overload of the last remaining studs having occurred over such a distance. Mr Simms said, Ms Gibbs' evidence that the driving was less bumpy when she sped up made sense as the fractured studs would have had less impact on the motion of the wheel if it turned fast than if it turned slowly in an off‑centre position.
Both experts agreed that the cause of the wheel dislodging was either under-tightening or over-tightening of one or more nuts. The main difference of opinion between Dr Casey and Mr Simms was that Dr Casey was adamant that if the cause was under-tightening, at least one nut, if not more, must have been missing prior to Ms Gibbs leaving the Bamboo Creek site and Mr Simms saying that this was not necessarily so. I accept Mr Simms' evidence on this aspect because he has had practical experience of a case where loose nuts were kept in place by rust or dirt and because it also seems to me unlikely that no‑one would have noticed one or more missing nuts over a period of at least 30 - 40 hours' driving time. This is particularly so as it was practice to carry out a pre-trip inspection of a vehicle prior to each major trip.
Considerable time was spent during the trial on the issue whether a pre‑trip inspection had taken place prior to the fateful trip. Mr Chris Simpson gave evidence that the workshop was usually advised when a vehicle was to be used the next day and the mechanics would carry out a pre‑trip inspection on the day before. However this trip was out of the ordinary and seems to have been decided upon in the morning of that day.
Mr Cole gave evidence that when he returned to Bamboo Creek on 1 October 2003 he found an Accident/Incident Investigation Report which had been completed except for the date and his signature. He investigated the incident and spoke to the staff, including Mr Joe Zabiela, who had been the relief manager in Mr Cole's absence. Mr Zabiela had written in the Accident/Incident Report that the cause of the accident had been loose wheel nuts, the failure to carry out pre‑start checks and driver inexperience in that Ms Gibbs had been driving an unknown vehicle and did not recognise the warning signs. Mr Cole signed off on this report on 13 October 2003.
Mr Cole was not asked in evidence whether the 'no pre‑start checks' referred to the inspection of the vehicle in the workshop or to the requirement that a driver conduct a walk‑around inspection before making use of a vehicle. It is likely that the reference to 'no pre‑start checks' referred to both, as it is stated in the plural and Mr Zabiela would probably have noted in the report that the vehicle had been inspected in the workshop prior to the trip if this had indeed occurred. Mr Zabiela was not called as a witness by Haoma and no explanation was provided for his absence even though counsel for Ms Gibbs had pointed out during the course of the trial that one would have expected Mr Zabiela to have been called. It seems fair to make the inference that Mr Zabiela's evidence would not have assisted Haoma.
Another factor which points to the absence of a pre‑trip inspection in the workshop is the fact that Ms Gibbs said neither the radio nor the satellite in the vehicle was working after the accident. She would not have waited on the road for another vehicle to find her, if she had been able to use this equipment. It was not explored during evidence whether the radio or satellite equipment could have been damaged in the accident.
Another matter which points to the likelihood of the vehicle not having been inspected prior to the trip to Port Hedland is that Mr Chris Simpson, the mechanic, was not asked whether he could remember inspecting the vehicle before the trip. He would have been likely to remember this, as he was one of the two people who picked up Ms Gibbs and repaired the wheel. If Mr Simpson had carried out the pre‑trip inspection or knew about it, it is very likely that he would have reported this to Mr Cole in order to cover his own back and would have remembered it ever since.
Mr Cole gave evidence that no records were kept by the workshop in respect of a pre‑trip inspection.
Accordingly, I make a finding that on a balance of probabilities no pre‑trip inspection was carried out in the workshop. However, the failure to carry out a pre‑trip inspection in the workshop is not causative of the accident. Even if such an inspection had been carried out, it was not part of the usual routine to check the tension on the nuts of the wheels. Unless a nut was missing, a pre‑trip inspection is not likely to have revealed that some of the nuts were inadequately fastened. I have already stated that I do not accept that at least one nut must have been missing from the left‑rear wheel prior to Ms Gibbs' departure.
Accordingly, I find that Haoma was not negligent in failing to detect a missing wheel nut prior to Ms Gibbs' departure.
This leaves the question whether Haoma should have had a practice of checking the tightness of all nuts as part of a pre-trip inspection or on another regular basis. Dr Casey was of the opinion that it would be reasonable practice to inspect the tightness of the nuts monthly, particularly where a vehicle was driven in harsh environments. Mr Simms, on the other hand, stated that it was not common practice on mine sites to regularly check the nuts on vehicles such as a Landcruiser. He thought it reasonable to expect that the wheel nuts would not come off if they had been properly fitted, even if the vehicle was driven on rough terrain.
Dr Casey did not say that it was accepted practice on mine sites to regularly check the wheel nuts and no evidence was provided to support his opinion in this regard. There was no evidence that nuts that were properly tightened when the wheel was fitted were nevertheless likely to work themselves loose on rough terrain.
Mr Simms agreed with an article in a publication called 'Bolt Science' in which the author referred to research undertaken in England indicating that wheels disengaging from commercial vehicles was a recognised problem. The article quoted a 1986 report by the Institute of Road Transport Engineers which referred to a wheel stud failure rate of 3% and said that 72% of all failures were related to lack of maintenance, particularly a failure to properly tighten the nuts.
Mr Simms acknowledged that the disengagement of wheels was a problem, but said the figures quoted related to heavy vehicles, such as trucks, and that the problem was less prevalent with passenger vehicles. In any event, the report indicated that the main cause of wheels disengaging was the failure to properly tighten the nuts. It was not put to Mr Simms that the report indicated that there was a problem with nuts coming off even if they had been properly tightened when the wheel was fitted or replaced.
In light of the lack of evidence supporting Dr Casey's opinion, I prefer Mr Simms' evidence which was that the owner or driver of a passenger vehicle may reasonably expect the nuts to remain in place if they had been fitted by a trained mechanic even if the vehicle is driven on rough terrain. Mr Simms said he had no evidence that correctly fitted nuts were prone to dislodge on those types of vehicles, even if they were used in adverse conditions. Mr Simms stated that he had never been asked to research whether it was a problem, but from his own experience he could say that it was not practice for operators of this class of vehicle to regularly check the wheel nuts. The roughness of the terrain would only be a contributing factor if the wheel nuts had not been properly fitted when the wheel was last changed.
Mr Simms stated in evidence that it was not common practice on typical mine sites to regularly check the tightness of the wheel nuts. Counsel for Ms Gibbs submitted that Mr Simms' reference to 'not common practice' meant that there was such a practice at some mine sites. However, if Mr Simms' evidence is considered in its totality, it is apparent that he was of the view that he was not aware of any practice to regularly check wheel nuts on this type of vehicle, nor was he aware of a need to do so.
Dr Casey did not provide any explanation as to why he considered it advisable that the tension of the nuts be checked at least once a month on all vehicles used on rough terrain. Before expert opinion can be of any value, the facts upon which it is founded must be proven by admissible evidence. A court ought not to act on an opinion, the basis for which is not explained by the expert witness expressing it: Pollock v Wellington (1996) 15 WAR 1, 3.
Counsel for Ms Gibbs submitted that the court should draw an inference that Haoma was negligent in not regularly checking the wheel nuts. Counsel for Ms Gibbs relied on the minority judgment by Gaudron J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 [77] in which her Honour came to the conclusion that an inference of negligence could be drawn where the plaintiff had been injured by a working tool and the employer had a duty to take reasonable steps to ensure that the working tools were safe and to regularly maintain and inspect them. However, Schellenberg was a case where it was unknown why the hose, carrying compressed air, became loose and swung upwards striking the plaintiff on the face. In those circumstances, Gaudron J came to the conclusion that it could be inferred that the employer must have been negligent because it supplied the tool and had a duty to maintain and inspect it. The majority came to the conclusion that this inference could not be drawn because there was simply no evidence that the hose was faulty or the employer's system of maintenance or inspection defective (Gleeson CJ and McHugh J [51] ‑ [52]; Kirby [117] ‑ [118] and [127]; Hayne J [150] ‑ [152]).
The present case is not a situation where it is unknown why the wheel disengaged. Dr Casey was of the view that either the wheel nuts had been over‑tightened when the wheel was fitted or some of the nuts had been under‑tightened. Mr Simms came to the conclusion that another possibility was that all of the nuts had been under‑tightened. This evidence may allow the court to draw the inference that whoever had last fitted the wheel was negligent in either over‑tightening or under‑tightening the nuts, but it does not give rise to any inference that Haoma should regularly have checked whether the nuts were still properly secured. Such a finding could only be made if there was evidence that it was reasonably foreseeable that the wheel nuts on a vehicle of this type could work themselves loose despite being properly tightened when the wheel was last affixed and that it would be reasonable practice to regularly check the tightness of the nuts. There was no evidence to this effect.
Dr Casey expressed the opinion that a type of plastic marker could have been used on the nuts which would have indicated when a nut had become loose. Mr Simms said that he had never seen these plastic markers being employed on passenger vehicles and Dr Casey conceded that this was correct.
Accordingly, I find that Haoma was not negligent in not regularly checking the tightness of the wheel nuts on the vehicle or in not using plastic markers.
The next issue is whether Haoma, or Pilbara Automotive, was negligent in not properly fitting the left-rear wheel. There was no disagreement between the two expert witnesses that the cause of the disengagement of the wheel was either under-tightening or over‑tightening of the nuts which led to a slow fatigue process of the studs and culminated in a final overload which caused the wheel to dislodge.
Mr Simms said in his experience the most usual cause of a wheel dislodging was the under‑tightening of the nuts. Over-tightening was not a common cause. Mr Simms stated that best practice on changing a wheel was to clean the studs and nuts before replacing the nuts. He explained that if the thread was dirty or rusty this diminished the amount of torque when applied by a torque measuring device and could result in the nut being under‑tightened.
Dr Casey agreed that dirty, damaged or rusty threads could be a cause for the under‑tightening of the nuts. He said that a failure to check the threads for dirt, rust or damage would be a shortcoming in reasonable practice.
Dr Casey gave evidence that another cause of under‑tightening could be the use of an inappropriate torque adaptor. The necessary torque for the tightening of wheel nuts was specified by the manufacturer of the vehicle and a mechanic had to know how to choose the appropriate torque adaptor or set it to the right setting. Dr Casey was of the view that the failure to use an appropriate torque adaptor would be a shortcoming in reasonable practice.
Dr Casey explained that another reason why nuts might be under‑tightened is if the operator stopped the rattle gun before the torque adaptor had responded correctly. He said this would also be a shortcoming in reasonable practice.
A further reason for under‑tightened nuts might be if the torque adaptor was not applied to all wheel nuts, which would again fall short of reasonable practice.
Dr Casey explained that it was also necessary to service certain torque adaptors regularly, at least once a year. If a torque adaptor had become faulty, this could also be a reason for nuts being under‑tightened.
Dr Casey explained that the use of a breaker bar would detect if a nut was very loose as long as the operator had a good 'feel' for the correct level of force to apply to the bar. However, a breaker bar would not pick up under‑tightening which was due to dirty, damaged or rusty threads because the condition of the threads would prevent the nut from being properly screwed onto the stud even though the correct torque had been applied.
Dr Casey said another reason for over‑tightening of the nuts might be that a torque adaptor had been used which did not prevent over‑tightening. Some torque adaptors only flexed when the correct torque was reached. If the operator continued tightening the nut with the rattle gun, the nut would be tightened above the required torque. Dr Casey said this conduct would also fall short of reasonable practice.
Another cause for over‑tightening was if the operator used too much force on the breaker bar when checking the tightness of the nuts. This could cause an excessive torque to be applied. Dr Casey explained that a breaker bar was not calibrated and would not show whether the correct torque had been achieved, other than to indicate if a nut was very loose. A breaker bar was not capable of determining if a wheel nut had been over-tightened.
A further cause for over‑tightening could be if a torque adaptor was not regularly serviced and was faulty.
It does not matter if the precise circumstances of a defendant's negligence cannot be established: TNT Australia Pty Ltd v Christie [62]. In some cases it is possible to say that the event which caused the accident was of a kind which does not ordinarily occur in the absence of negligence: Schellenberg v Tunnel Holdings Pty Ltd [152].
This is such a case. It does not matter whether the wheel disengaged because one or more nuts were under‑tightened or because they were over‑tightened. The experts were in agreement that it was either under‑tightening or over‑tightening which caused the wheel to disengage and Dr Casey explained how such under-tightening or over‑tightening could have occurred. In each case he said that it would have resulted from a shortcoming on behalf of the relevant mechanic. These findings by Dr Casey were not challenged by counsel for Haoma.
There was no evidence that the under‑tightening or over‑tightening of the nuts could have occurred without fault of the operator. Counsel for Haoma relied on Mr Simms saying that the probability of a wheel coming off if the nuts had been properly tightened was very, very low, but it could happen under some circumstances. However, Mr Simms did not say that it was possible that the wheel on this vehicle had disengaged even though it had been properly tightened when last refitted. The experts both agreed that the broken studs indicated that there had been a fatigue process caused by either under-tightening or over‑tightening.
The court can therefore draw the inference that whoever last fitted the wheel to the vehicle breached Haoma's duty of care to Ms Gibbs in either under‑tightening or over‑tightening one, some, or all of the nuts. It was readily foreseeable that if the nuts on the wheel were not properly tightened, the wheel might disengage and that this could lead to serious injury of the driver of the car. The expense, difficulty and inconvenience of making sure that the nuts were properly tightened was minimal.
It is also readily apparent that this breach of duty was the cause of the wheel disengaging and Ms Gibbs' injuries.
It does not matter whether the negligent conduct was that of a servant of Haoma or that of a servant of Pilbara Automotive. Mr O'Keefe said in his statement that he was not able to supervise his employees the whole time and that it would be possible for an employee to put the wrong torque adaptor on a rattle gun. He also acknowledged that employees made mistakes from time to time.
Counsel for Haoma did not have the opportunity to cross-examine Mr O'Keefe, but it is in any event common knowledge that employees are sometimes distracted and may deviate from the usual routine or make a mistake. It could therefore have been an employee of Pilbara Automotive who negligently fitted the wheel in April 2003.
It is equally likely that the wheel was replaced in the period between April and September 2003, as Mr Cole gave evidence that tyres were replaced in the workshop at Bamboo Creek when a tyre was worn by more than 40%. In fact, the length of time that it would have taken for the fatigue process to culminate in the wheel disengaging points to the fact that it is more likely that the left rear wheel was last refitted at Haoma's workshop.
Dr Casey expressed the view that it was possible that the under‑tightening or over-tightening of the nuts had occurred at Pilbara Automotive in April 2003 and that the fatigue process had stretched over five and a half months, depending on how much the vehicle had been driven in the meantime. The exact number of times that the vehicle had been driven and the usual distance were not put to Dr Casey.
Mr Cole gave evidence that the vehicle was used for taking staff to and from Port Hedland on a weekly basis. The distance from the Bamboo Creek mine site to Port Hedland was approximately 205 km. The vehicle was also used for an additional 'town run' if something was needed urgently.
If it is assumed that the vehicle was only used to drive staff to and from Port Hedland once a week, and that it took five or six hours for a round trip, the vehicle would have had between 120 ‑ 144 hours on‑road time between 9 April and 27 September 2003. This seems to indicate that the under‑tightening or over‑tightening is likely to have occurred at a stage later than April, because Dr Casey estimated that it would have taken at least 30 – 40 hours for the fatigue process to occur. He did not refer to anything like 120 or 140 hours. Further, Mr Simms was of the view that the speed of the vehicle and the terrain traversed could have exacerbated the load on the studs and could have allowed failure to occur even more quickly.
As the estimated on-road hours between April and September were not put to Dr Casey, it is not possible to say with certainty whether the negligent fitting of the wheel is likely to have occurred at Pilbara Automotive or at Haoma's workshop. However, for purposes of these proceedings this does not matter, because Haoma would be liable for the negligent conduct in each case.
Accordingly, I find that Haoma was negligent in that it breached its non‑delegable duty to provide safe equipment to Ms Gibbs.
Whether there was contributory negligence by Ms Gibbs
Haoma submitted that there had been contributory negligence by Ms Gibbs because she must have failed to carry out the walk‑around inspection prior to driving the vehicle and would have noticed at least one loose nut if she had done so. Haoma relied on the fact that Ms Gibbs had been asked to read Haoma's WorkSafe Manual which included a direction that a walk‑around inspection should be carried out every time a driver was about to make use of a vehicle. Ms Gibbs agreed that she had read the WorkSafe Manual. As I have found that there would not necessarily have been a missing nut on the wheel, the lack of any walk‑around inspection was not causally related to the accident.
Haoma also submitted that there was contributory negligence because Ms Gibbs drove for approximately 10 km while trying to figure out what the noise was instead of pulling over immediately once the vehicle started to wobble and make a strange flapping noise. The Accident/Incident Investigation report contained a description of the incident which was written in the first person. In the report Ms Gibbs said she had felt a wobbling at the rear of the vehicle approximately 10 km prior to the accident, but had not been sure what the problem was or what she could do about it.
In her evidence Ms Gibbs said she was uncertain how far she had driven after noticing the wobble, but had put 10 km into the report after she had been told to do so by Mr Cole. Mr Cole had also told her to take 25% of the blame. Mr Cole, on the other hand, gave evidence that he had been surprised to see such an incriminating statement in the report and had asked Ms Gibbs whether she was certain that she wanted to say that. She had replied that this is what had happened.
I do not accept Ms Gibbs' evidence that Mr Cole told her to put in a distance of 10 km. Mr Cole signed the statement on 13 October 2003, but the Accident/Incident Investigation report notes that the incident was reported to Sharon (Winsor) and Joe (Zabiela) on 28 September 2003 and refers to the 'completion date' as being 10 October 2003. Mr Cole returned to the mine site on 1 October 2003. It could be possible that Mr Cole prodded Ms Gibbs into providing a distance, but I accept that the actual figure of 10 km must have come from Ms Gibbs. In evidence she said she drove for approximately one or two minutes while trying to work out what was going on. If she had been driving at 110 km per hour, she would only have covered 1.8 – 3.6 km in one or two minutes. I prefer to rely on Ms Gibbs' originally estimate of 10 km.
Ms Gibbs had also completed another statement (Exhibit 15) on 29 September 2003. In this she said: 'Felt wobble in rear of vehicle at 110kmh. Thought it was maybe from driving rough roads a lot. Around Goldsworthy turn‑off I thought of pulling to the side to see if nuts were loose but not sure what I could do. Wobble increased, then suddenly rear hitting ground'. This statement also seems to imply that she drove for quite a distance while feeling a wobble without stopping to check what might be wrong.
Ms Gibbs said in evidence that she did not pull over immediately when she felt the vehicle wobble as she would never have reached her destination if she had stopped for every wobble. However, the type of wobble that she felt immediately prior to the accident must have been of a different kind to what she had felt before, as she did notice it and was trying to work out what could have caused it.
Ms Gibbs said that she could not hear well inside the car as the air‑conditioning was on and the windows were closed. She gave evidence that she had been told by Ms Sharon Winsor not to open the windows because of the dust. However, this is even more reason to stop and check the vehicle if one cannot hear well.
Accordingly, I accept that Ms Gibbs did not take reasonable care for her own safety. She should have pulled over when she felt an unusual wobble and heard a noise that had not been there before. She was an experienced driver who had driven all over Western Australia in a previous employment position during which she took osteoporosis scans from patients in various country towns. Every reasonably experienced driver knows that it is important to stop and check the source of an unusual and persistent noise in the vehicle. Ms Gibbs should also have realised that it was more likely that a vehicle could develop a mechanical problem where it had been driven on a rough gravel road and corrugated bitumen road than on a well maintained road.
On the other hand, I take into account that it is very difficult to estimate after such an incident for how long one might have felt a particular wobble or heard a certain noise and Ms Gibbs may not have driven for exactly 10 km as she estimated. It is also difficult at times to work out whether one hears an unusual noise or not and Ms Gibbs put the excessive wobble down to the corrugation on the bitumen road. Mr Simms gave evidence that the wheel would have had to be significantly loose on the studs before Ms Gibbs would have heard any rattling noise. This indicates that the wheel may have disengaged quite soon after Ms Gibbs first felt the wobble and heard the flapping noise.
Nevertheless, if Ms Gibbs had stopped as soon as she felt an excessive wobble and heard an unusual noise, the accident is likely to have been avoided. Taking into account all the circumstances, it seems fair to allocate 25% contributory negligence to Ms Gibbs.
The chronic depression that Ms Gibbs has developed obviously also curtails her enjoyment of life. She seems to be obsessed with her resentment of her previous employer and the medical and legal profession. This has led to her feeling powerless and hard done by and has restricted her feelings of happiness and enjoyment.
I have had regard to the comparative cases referred to in Ms Gibbs' closing submissions. It seems to me appropriate that her non‑pecuniary loss be assessed at 7.5% of a most extreme case, which amounts to $26,250. Taking into account the deductible of $17,500 prescribed by s 3A ‑ s 3C of the MVA, the total amount to be awarded to Ms Gibbs for non-pecuniary damages is $8,750.
Past loss of earning capacity
I have found that Ms Gibb's estimated loss of past earning capacity is $24,000 per annum, which takes into account her retained earning capacity. This translates to $462 gross per week. Ms Gibbs was still paid by Haoma until 15 December 2003. Her past loss of earning capacity has to be calculated from that date to the date of the judgement.
Counsel for the plaintiff relied on the PAYG weekly tax table applicable after 1 July 2003 as published by the Australian Taxation Office to calculate the net weekly income. According to this table the weekly tax to be withheld, including the Medicare levy, is $73. This amounts to a weekly net income of $389. Because there is a relatively significant difference in the weekly tax to be withheld between the various years from 2003 to 2012, I have calculated the net weekly income for each year separately.
Ms Gibbs is entitled to the following amounts with regard to her past loss of earning capacity:
1.for the financial year ending 30 June 2004 (from 16 December 2003 to 30 June 2004): 28 weeks x $389 ($462 gross - $73 tax = $389 net) = $10,892;
2.for the financial year 2005: 52 weeks x $389 ($462 - $73) = $20,228;
3.for the financial year 2006: 52 weeks x $395 ($462 - $67) = $20,540;
4.for the financial years 2007 and 2008: 104 weeks x $402 ($462- $60) = $41,808;
5.for the financial year 2009: 52 weeks x $414 ($462 - $48) = $21,528;
6.for the financial year 2010: 52 weeks x $415 ($462 - $47) = $21,580;
7.for the financial year 2011: 52 weeks x $417 ($462 - $45) = $21,684;
8.for the financial year 2012: 52 weeks x $423 ($462 - $39) = $21,996;
9.from 1 July 2012 to 17 August 2012 : 7 weeks x $435 ($462 - $27) = $3,045.
This adds to a total past loss of earning capacity of $183,301.
Interest on past loss of earning capacity
Ms Gibbs is also entitled to interest at 3% in respect of the amount of $183,301 for past loss of earning capacity, calculated over 8.7 years (451 weeks). This amounts to $47,842.
Future loss of earning capacity
Ms Gibbs was born on 13 October 1956. She is likely to have worked until age 65.
With regard to her future loss of earning capacity Ms Gibbs is entitled to the net weekly income that she will loose from the date of the judgement until she reaches age 65 (9 years, 8 weeks). I have used the PAYG weekly tax table applicable to payments made after 1 July 2012 for calculating the net weekly income lost in the future ($436 ‑ $27 = $435).
This means that Ms Gibbs is entitled to $435 x 370 multiplier (for 9 years, 8 weeks) = $160,950.
A percentage discount is usually made in respect of the total amount of damages for future loss of earning capacity to allow for the vicissitudes of life, such as early death, illness or future unemployment. The discount for ordinary contingencies in Western Australia is rarely more than 15% and usually between 5% to 10%: Villasevil v Pickering (2001) 24 WAR 167, 176. In determining the discount it is necessary to have regard to the particular facts of each case: Bresatz v Przibilla (1962) 108 CLR 541.
Counsel did not submit that I should take into account any specific matters applying to Ms Gibbs' situation. Accordingly, it seems appropriate to make a deduction of 5% from the amount calculated for future loss of earning capacity. This means that Ms Gibbs is entitled to the amount of $152,902 in respect of future loss of earning capacity.
Past and future loss of superannuation
Ms Gibbs is also claimed damages for the past and future loss of superannuation benefits. The past loss is calculated at 9% of the gross income that she would have earned but for the accident. This means that Ms Gibbs should be awarded 0.09 x $462 gross per week x 451 weeks = $18,753.
In respect of the future loss of superannuation payments Ms Gibbs is entitled to $42 per week (9% of $462 gross per week) x multiplier of 370 (for 9 years, 8 weeks) = $15,540.
It is usual in Western Australia to deduct a percentage of between 15% ‑ 30% from an amount allowed for past and future loss of superannuation in accordance with the formula developed in Jongen v CSR Ltd (1992) A Tort Rep 81-192, 61,713 – 61,714. As there was no objection to the 15% deduction proposed by counsel for the plaintiff, I will make that deduction. This means that the amount for past loss of superannuation benefits is reduced to $15,940.
As regards the amount for future loss of superannuation benefits, the same deduction of 15% in accordance with the Jongen formula applies. In addition the 5% deduction for contingencies arising from the vicissitudes of life needs to be made. This leaves a total amount of $12,432.
Interest on past loss of superannuation
Ms Gibbs is further entitled to interest at the rate of 3% over 8.7 years in respect of the amount awarded for past loss of superannuation. This amounts to $15,940 x 0.03 x 8.7 = $4,160.
Past medical and travel expenses
Mrs Gibbs also claimed damages for past medical expenses and filed a schedule of the expenses incurred by her. No supporting documentation was provided other than the medical reports which were tendered by Ms Gibbs. The parties' solicitors were repeatedly encouraged to consult with each other, peruse the supporting invoices or other documentation and to agree on an amount for past medical expenses. This did not eventuate.
Doing the best I can on the available information, I allow damages for all the medical accounts of medical practitioners or service providers whose reports were tendered by Ms Gibbs. I also allow damages for the acupuncture and massage accounts which are more than likely related to her neck and shoulder injury. Dr Jenkins gave evidence that the best treatment for the neck and shoulder symptoms was acupuncture and massage.
I further allow damages for all medical, rehabilitation and physiotherapy accounts that were paid by CGU, the workers compensation insurer, as it is likely that CGU would have checked that these were related to Ms Gibbs' neck and shoulder injury. Although CGU has paid these accounts, it may recover these payments from Ms Gibbs once she receives damages for past medical expenses.
I also make allowance for an account in the amount of $165.80 from Dr J Savage, as Dr Larder referred in his evidence to a report of a CT brain scan done by Dr Savage which Dr Larder said he relied upon in assessing Ms Gibbs' mental functioning.
I further allow the accounts by Dr J Brown, who, according to the evidence of Mr Starkey, is a psychologist in private practice and referred Ms Gibbs to Mr Starkey for the neuropsychological testing. Although Mr Starkey gave evidence that he did not know whether Ms Gibbs had consulted Dr Brown, it appears from the regular amount of $115.05 charged on a weekly or fortnightly basis that these accounts most likely related to psychological treatment. There is no indication that Ms Gibbs was in need of psychological treatment for any reason other than her mental health issues that had arisen after the accident.
Ms Gibbs also claimed damages in respect of an account from Dr E Guazzo who is a neurosurgeon. Counsel for Haoma initially wished to tender his report. Eventually this was not proceeded with because the report had not been provided in time to counsel for Ms Gibbs. I accept that the report was relevant to the injuries received during the accident.
No allowance is made for the remainder of the medical accounts in respect of which the name of the provider did not come up at trial and there is no evidence whether these accounts related to Ms Gibbs' neck and shoulder injury or not.
The amounts allowed for past medical expenses are set out in the schedule attached to these reasons. The amounts paid by CGU have been marked with an asterisk. The total for past medical expenses amounts to $11,674.
I also allow an amount of $1,500 for past travel expenses. This adds to a total of $13,174 for past medical and travel expenses.
Interest on past medical and travel expenses
Ms Gibbs is entitled to 3% interest on the total amount allowed for past medical and travel expenses over a period of 8.7 years. This amounts to 0.03 x $13,174 x 8.7 = $3,438.
Future medical and travel expenses
Ms Gibbs gave evidence that when she initially returned to Perth she attended a sports clinic where she received massages and did relaxation in a float tank. However, she had not found this treatment very helpful. At the end of December 2003 she moved to Cairns where she attended physiotherapy for about nine months. She was prescribed exercises for her neck, shoulder and arm. Dr Low also gave her cortisone injections and suggested swimming and exercises.
Ms Gibbs said that at present she found floating in water for relaxation, doing tai chi and chi‑gong to be most helpful for her pain. Shiatsu massage was also helpful and she had tried acupuncture in the past. Ms Gibbs was adamant that she would not take any pain killers as she was of the view that any form of medication was not good for her. Instead, she said, she made use of capsicum patches and Chinese medicine.
Dr Jenkins gave evidence that the best treatment for the symptoms in the neck were exercises to strengthen the neck and shoulder muscles, massage and acupuncture. Mr Bath said that it would be reasonable for Ms Gibbs to undergo some therapeutic treatment over a short period of time if this would benefit her.
I accept that massage and acupuncture treatment may assist Ms Gibbs and allow either the one or the other on a fortnightly basis. Ms Gibbs submitted invoices in widely varying amounts for this type of treatment, but an estimate of $50 per session appears to be reasonable. As there is no evidence of a particular time frame for which this treatment would be helpful, I have to make the best estimate I can and I allow it for a period of five years. This amounts to $1,300 per year or $25 per week for five years. The multiplier for five years is 226.3, which amounts to $5,658.
Dr Larder was of the view that Ms Gibbs required specialist psychiatric treatment at a cost of $200 per consultation for about five years. He estimated the cost to be $6,000 per year for 30 consultations. Dr Larder was not cross‑examined in this regard, but 30 consultations per year seem to be a bit excessive. I allow 26 consultations per year. This amounts to $100 per week x 226.3 (multiplier for five years) and entitles Ms Gibbs to $22,630.
Dr Larder also recommended that Ms Gibbs regularly see a general practitioner to be prescribed suitable medication, but as Ms Gibbs does not want to take medication, she did no make any claim in this regard.
I also allow an estimated figure of $1,000 for future travel expenses.
This means that Ms Gibbs is entitled to an amount of $29,288 for future medical and travel expenses.
Summary of calculated damages
In accordance with the parties' agreement, the following damages have been calculated, but are not yet awarded until Ms Gibbs has obtained a determination that her disability is at least 16%:
General damages $ 8,750
Past loss of earning capacity $183,301
Interest on past loss of earning capacity $ 47,842
Future loss of earning capacity $152,902
Past loss of superannuation $ 15,940
Interest on past loss of superannuation $ 4,160
Future loss of superannuation $ 12,432
Past medical and travel expenses $ 13,174
Interest on past medical and travel expenses $ 3,438
Future medical and travel expenses $ 29,288
Total$471,227
The total amount of the assessed damages needs to be reduced by 25% to allow for Ms Gibbs contributory negligence. This leaves a total of $353,420.
Whether ICWA had admitted liability or negligence on behalf of Haoma
Another issue to be determined is whether ICWA admitted liability or negligence on behalf of Haoma in correspondence preceding the trial. Counsel for Ms Gibbs submitted that ICWA had admitted liability to her on behalf of Haoma in letters sent by ICWA to her previous solicitors. Ms Gibbs had not pleaded any reliance on such an admission, but it was accepted by counsel for Haoma and counsel for ICWA that this was an issue which the court should determine, as Haoma also wished to rely on correspondence by ICWA for the purpose of establishing that ICWA had made an admission of negligence on its behalf.
As I have found Haoma to have been negligent, the question whether it admitted liability to Ms Gibbs is no longer relevant, but it still needs to be decided whether ICWA admitted negligence on behalf of Haoma to Ms Gibbs or otherwise.
Section 11(1) of the MVA provides that ICWA may conduct negotiations on behalf of an insured person (such as Haoma) in respect of a claim against such a person, may assume the conduct and control of legal proceedings and may at any stage in the negotiations or proceedings admit negligence on behalf of the insured person and may pay, compromise or settle the claim. However, pursuant to s 11(1)(d)(i) an admission of negligence is only to be made where ICWA has no right of recovery against the insured person. ICWA has a right of recovery against an insured person, if the vehicle was driven in an unsafe or damaged condition.
Counsel for ICWA made the formal concession that if the court should find that ICWA admitted negligence on behalf of Haoma in correspondence between it and Ms Gibbs' solicitors or it and CGU (Haoma's workers' compensation insurer), then ICWA would not exercise its right of recovery against Haoma.
The following correspondence was placed before the court:
1.A letter from Ms Gibbs' original solicitors, the Law Office, dated 24 March 2004, to ICWA providing information about the accident.
2.A letter from ICWA in reply, dated 20 May 2004 in which they stated the following:
RE: Barbara Jean Gibbs
We refer to previous correspondence in this matter and advise that we are now in a position to address liability following receipt of a legal opinion.
We accept that negligence will be established against the registered owner of the vehicle involved in this crash.
However we are of the opinion that the above named has an obligation to exercise reasonable care for her own safety and in this case it is evident that the above named continued to drive the vehicle in question notwithstanding that she was suspicious the wheel nuts were loose and there was a possibility the wheel may fall off.
We consider the risk the above named took suggests that she contributed to the crash to the extent of 25%.
Accordingly we are prepared to pay 75% of your clients claim.
Please advise if the offer is acceptable.
3.A letter from Ms Gibbs' subsequent solicitors, Paul O'Halloran & Associates to ICWA dated 12 September 2005, in which the solicitors enquired whether liability was accepted for Ms Gibbs' claim.
4.A letter from ICWA in reply dated 19 September 2005. The letter contained the same statement regarding negligence and the same offer to pay 75% of the claim as set out in ICWA's earlier letter to Ms Gibbs' solicitors.
5.A further letter from ICWA to Paul O'Halloran & Associates, dated 8 March 2006, in which ICWA advised that should the matter settle prior to 24 August 2006, ICWA might be required to pay the Notice of Past Benefits in full directly to Medicare Australia. ICWA queried whether all the items on the notice were related to Ms Gibbs' accident and reserved their right to deduct the amount of the notice from any settlement money.
Neither of the letters exchanged between the two sets of solicitors and ICWA were marked 'without prejudice'.
The law regarding 'without prejudice' negotiations is well settled. The 'without prejudice' rule applies to exclude all negotiations genuinely aimed at settlement, whether oral or in writing, from being given in evidence. The application of the rule is not dependent upon the use of the phrase 'without prejudice'. Where it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule not be admissible as an admission: Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, 1299; Rodgers v Rodgers (1964) 114 CLR 608, 614. If the status of the communication is challenged, the court must examine it to establish its true nature: South Shropshire District Council v Amos [1986] 1 WLR 1271, 1277.
The 'without prejudice' rule is based upon public policy and is aimed at encouraging parties to settle their disputes without resort to litigation and without fear that what they say in the course of settlement negotiations may be used to their prejudice in the proceedings. In Jermyn v Spargos Mining NL [2001] WASCA 149 [1] Anderson J, with whom Wheeler J agreed, said that the rule against the use of 'without prejudice' communications was very strong and was to be applied in a commonsense and practical way without drawing too fine distinctions.
It is apparent from the correspondence that passed between ICWA and Ms Gibbs' various solicitors that Ms Gibbs had made a claim against ICWA, that ICWA had considered its position and had made an offer to pay 75% of the claim. Even though the correspondence was not marked 'without prejudice' it was clearly exchanged with the purpose of arriving at a negotiated settlement. It should therefore be regarded as 'without prejudice' communications.
At the time of this correspondence Ms Gibbs had not yet instituted proceedings (this only occurred on 6 July 2007), but the 'without prejudice rule' applies in respect of actual or contemplated litigation.
Counsel for Ms Gibbs accepted that the second part of the letters from ICWA making the offer to pay 75% of the claim constituted negotiations for purposes of settlement, but submitted that the earlier statement that ICWA accepted, after receipt of legal opinion, that negligence would be established against Haoma, constituted an admission which was separable from the remainder of the letter. Counsel for Ms Gibbs relied on authorities such as Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 4) [2010] FCA 863 and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67 where parts of a discoverable document were allowed to be redacted or covered up to mask those parts which were subject to legal professional privilege or irrelevant. However, that practice pertaining to discovery has no relevance in deciding whether correspondence has been written 'without prejudice'.
ICWA's acceptance that negligence would be established against Haoma provided the basis for it making an offer to pay 75% of Ms Gibbs' claim and formed part of the negotiations and the proposed settlement. There is no valid basis for separating these letters into a statement containing an admission and a subsequent offer to settle.
Accordingly, any admission made by ICWA in the letters to Ms Gibbs' former solicitors was made 'without prejudice' and cannot be relied upon by Ms Gibbs or by Haoma. By reason of this finding is unnecessary to deal with the parties' submissions as to whether the admission was one of negligence or of liability (see Rankine v Garton Sons & Co Ltd [1979] 2 All ER 1185 and Panton v Molenaar [1986] NTSC 35) or what effect an admission of negligence has in respect of a plaintiff's claim (see Shine v Williams [2007] WASCA 194).
The court was also supplied with a letter from ICWA to CGU, dated 4 January 2005 which was marked 'without prejudice'. In that letter ICWA advised CGU that it had received legal advice regarding liability in respect of Ms Gibbs' claim and offered to reimburse CGU by paying 75% of its expenses, the reduction of 25% being due to Ms Gibbs' contributory negligence. CGU replied to this letter on 18 January 2005 accepting the offer of reimbursement of 75% of its expenses. That letter was not marked 'without prejudice'.
Counsel for Haoma and counsel for Ms Gibbs submitted that even if this correspondence was written 'without prejudice' the protection afforded by the 'without prejudice' rule fell away once a concluded agreement had been reached between the negotiating parties and that any admission contained in the correspondence could thereafter be relied upon by Haoma and Ms Gibbs. Counsel for Haoma submitted that although the letter from ICWA to CGU did not state that negligence was admitted, this was implied because ICWA referred to having receiving legal advice on liability and then offered to pay 75% of CGU's expenses.
I agree that the letter from ICWA impliedly admits negligence. However, it is clearly marked 'without prejudice' and formed part of settlement negotiations. Any admission contained in the letter cannot be relied upon.
Further, it is correct that once a concluded agreement has been reached the parties to it may rely on the content of that agreement in order to enforce it, but there is no rule that once 'without prejudice' negotiations have resulted in a concluded agreement, the admissions contained in correspondence forming part of the negotiations can be relied upon by other parties involved in related litigation. In Rush & TompkinsLtd v Greater London Council (1300 – 1301) Lord Griffiths held that even if a concluded agreement had resulted between two parties, admissions made in 'without prejudice' negotiations between these parties remained inadmissible in any subsequent litigation and in respect of a different party within the same litigation. As explained by Lord Griffiths, if the 'without prejudice' rule was not given this extended application, it would discourage a party to litigation to make concessions during negotiations with one defendant, if any admissions made during those negotiations could be relied upon by another defendant once a settlement had been reached between the plaintiff and the first defendant.
The fact that the 'without prejudice' rule remains applicable after negotiations have been brought to a conclusion was also accepted in Director of Public Prosecutions v Walsh [1990] WAR 25, 33 and in Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [92].
Any admission of negligence on behalf of Haoma in the correspondence between ICWA and CGU can therefore also not be relied upon by Haoma or Ms Gibbs. There is no reason why ICWA should be bound by an admission of negligence which it made as part of 'without prejudice' negotiations.
Whether Haoma breached the warranty in its insurance policy
ICWA pleaded in its defence to the third party statement of claim that it was not obliged to indemnify Haoma because Haoma had breached the warranty contained in its motor vehicle (third party insurance) policy that the vehicle would not be driven in an unsafe or damaged condition. Counsel for Haoma submitted that upon a proper construction of the warranty Haoma had only warranted that it would not permit the vehicle to be driven in an unsafe or damaged condition; in other words, that the warranty would not apply unless Haoma had knowledge of the unsafe or damaged condition.
The warranty contained in Haoma's policy was in the same terms as the warranty set out in the schedule to the MVA, as required by s 6 of the MVA. The warranty set out in the schedule is in the following terms:
WARRANTIES
The owner warrants that the vehicle will not be ‑
(a)used for any other purpose than that stated by the owner in his application for this Policy;
(b)driven in an unsafe or damaged condition;
(c)driven by or in charge of himself or any other person who is unlicensed to drive or who is under the influence of intoxicating liquor.
It shall be a defence to any action in respect of the warranty contained in subclause (c) if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent.
The warranties are expressed in clear and unequivocal language pursuant to which absence of knowledge or consent is not a defence where the vehicle was driven in an unsafe or damaged condition, but is expressly stated to be a defence where a vehicle is driven by an unlicensed or intoxicated driver. On the basis of the well known principle of the interpretation of statutes, expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded), it is a reasonable assumption that where the legislature included a defence or proviso with regard to one matter, but did not include it with regard to a similar matter, there was a deliberate intention to deal with them differently.
Counsel for Haoma sought to overcome this problem by submitting that the proviso stating that it would be a defence if the owner proved that the vehicle was driven by an unlicensed or intoxicated driver without the owner's knowledge or consent, was merely a provision to regulate the burden of proof and did not detract from an interpretation which implied a requirement for knowledge or consent regarding the driving of a vehicle in an unsafe or damaged condition.
This submission cannot be accepted. The proviso in the last paragraph states in the clearest terms that absence of knowledge or consent shall be a defence where the vehicle was driven by an unlicensed or intoxicated driver, whereas that defence is not made applicable where the vehicle is driven in an unsafe or damaged condition.
Counsel for Haoma submitted that the warranties should be given a purposive interpretation and that it would produce a capricious or absurd result if an owner of a motor vehicle lost the benefit of insurance cover where he or she was not aware of a hidden defect which made the vehicle unsafe or, knowing of such a defect, left the motor vehicle in the garage from where it was driven without his consent.
A purposive interpretation which allows the court to take into account the purpose and historical background of the legislation in interpreting its text, even if there is no apparent ambiguity in the wording of the text, is now the preferred approach to the interpretation of statutes: Australian Finance Direct Ltd v Director of Consumer Affairs (Vic) (2007) 234 CLR 96 [32] – [41]. However, the starting point for statutory interpretation remains the text of the written law: Australian Finance Direct Ltd v Director of Consumer Affairs (Vic) [34].
Counsel for Haoma was not able to point to any ministerial statements or historical considerations which indicated that the legislature intended that an owner of a motor vehicle only lose the third party insurance cover if the vehicle was driven in an unsafe or damaged condition with his knowledge and consent. Counsel for Haoma advised the court that the second reading speeches in respect of the Motor Vehicle (Third Party Insurance) Amendment Act (No 107 of 1987) which introduced the schedule to the MVA dealt extensively with other amendments to the Act made at the same time, but did not explain the background to the inclusion of the warranties in the schedule.
Counsel for Haoma submitted that an important purpose of the MVA was to provide insurance cover for owners of vehicles and that the benefit of such insurance should only be lost in exceptional circumstances. However, the stated purpose of the MVA is 'to require owners of motor vehicles whilst on a road, to be insured against liability in respect of deaths or bodily injuries directly caused by, or by the driving of, such motor vehicles'.
The main purpose of the Act is therefore to ensure that injured people or dependants of a deceased person have redress against the owner of a motor vehicle and are not left in a position where the owner is financially unable to meet a claim for damages. This is why claims under the MVA are met by ICWA which then has a right of redress against the owner of a vehicle under certain circumstances, mainly where a breach of the warranties has occurred. The main purpose of the MVA is therefore to ensure that people injured in a motor vehicle accident are able to obtain compensation and not to protect the owners of motor vehicles against having to meet the costs of a damages claim.
In insurance law a warranty is a term of the contract of insurance in the nature of a condition precedent to the liability of the insurer: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 1 AC 233, 262 - 263. Kenneth Sutton, Insurance Law in Australia (LBC, 3rd ed, 1999) 8.6 describes the characteristics of a warranty as including that the matter warranted need not be material to the risk, that the condition must be exactly complied with, and that the breach of it discharges the insurer's liability, notwithstanding that the loss has no connection with the breach or that the insurer suffered no loss and was not prejudiced in any way. It is therefore in the nature of a warranty that the insured takes on an onerous obligation to ensure that he is not in breach of the warranty. It is not unusual for insurance policies to contain warranties for the benefit of the insurer in various forms: Nicholas Leigh‑Jones, John Birds and David Owen (eds), MacGillivray on Insurance Law (Thomson Reuters, 11th ed, 2008) 10-001.
Sutton at 2.48, states that a warranty in an insurance contract will generally be strictly construed. On the other hand, if the words used in an insurance policy are ambiguous, they may be construed contra proferentem (against the interests of the insurer). But where the ordinary and natural meaning of the words used is plain and unequivocal, there is no reason to qualify them in favour of the owner of the vehicle.
Counsel for Haoma also relied on what is sometimes described as the 'golden rule' of statutory interpretation. In Grey v Pearson (1857) 6 HL Cas 61, 106, Lord Wensleydale held that 'in construing statutes, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.'
However, in The President & Shire of Arapiles v The Board of Land and Works (1904) 1 CLR 679, 687 Griffiths CJ emphasised that legislation could only be held to be 'absurd' where the construction sought to be put upon a particular provision lead to a manifest absurdity upon the face of it. A court is not called upon to say whether legislation is wise or foolish. As stated by Pearce and Geddes, Statutory Interpretation in Australia (6th ed) [2.4] 'the golden rule contemplated that a mistake had been made in the wording of the Act'.
There is no indication that a mistake has been made in the wording of the warranties in the schedule to the MVA. The words are plain and unequivocal. The legislature has decided that it is a defence for the owner of a vehicle to prove that he did not know that the vehicle was driven by an unlicensed or intoxicated driver, but has not provided for the same defence where the vehicle was driven in an unsafe or damaged condition. There is no absurdity inherent in the wording and no reason to modify the ordinary sense of the words.
In Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd(in liq) [1968] WAR 10 the same warranties contained in the schedule to the MVA were under discussion. The issue was whether a vehicle used with a defective seat which collapsed under the weight of a passenger causing him injury was being driven in an unsafe or damaged condition within the meaning of the warranty. Counsel for both parties had conceded that it was immaterial whether or not the owner of the vehicle knew of the condition of the vehicle (at 15). Wolff CJ referred to Trickett v Queensland Insurance Co Ltd [1936] AC 159 and noted that 'in an ordinary commercial policy a warranty of this nature is broken merely if the vehicle is driven in an unsafe condition and it is not necessary even for the insurer to prove that the insured was aware of it'. However, his Honour said that Trickett was not of assistance as the factual issues were different and it did not involve a compulsory policy prescribed by statute.
In Trickett v Queensland Insurance Co Ltd a private motor vehicle insurance policy provided that the insurer would not be liable in respect of any personal accident to the insured if the motor vehicle was being driven in a damaged or unsafe condition. The Privy Council held (at 165) that the terms of the proviso were unambiguous and plain and that there was no justification for supplementing the terms of the proviso by adding the words 'to the knowledge of the driver'. Lord Alness pointed out that other provisos 'adjacent' to the one dealing with the damaged or unsafe condition of the car did require knowledge of the insured and that this was another reason to reject the contention that the words 'to the knowledge of the driver' should be implied into the proviso dealing with a vehicle driven in a damaged or unsafe condition.
Although Trickett dealt with a private motor vehicle insurance policy which provided cover for injury to the insured, the wording interpreted was similar to that contained in the schedule to the MVA.
In State Government Insurance Commission v Drew (1988) 5 SR (WA) 48, 50 – 51 Heenan CJ held, in reliance on Trickett v Queensland Insurance Co Ltd, that the warranty in the schedule to the MVA dealing with a vehicle driven in an unsafe or damaged condition was unambiguous and plain and that there was no justification for implying a requirement that the owner must have had knowledge of the condition of the vehicle.
There is no reason to diverge from the decision by Heenan CJ. The warranty is in clear and unambiguous terms and it is not for the court to say whether the wording of the schedule delivers a fair result.
It follows that Haoma's argument must be rejected and that it is not necessary that it had knowledge of the unsafe or damaged condition of the vehicle before ICWA can rely upon a breach of the warranty.
Haoma also submitted that ICWA had not proven when exactly the vehicle became unsafe to drive. However, the evidence of Dr Casey and Mr Simms made it clear that the under‑tightening or over‑tightening of the nuts would have led to a gradual failure of most of the studs attaching the hub of the wheel and that the final overload of the remaining studs would have occurred quite rapidly (within 10 hours of driving time) with the result that the wheel dislodged. The vehicle must therefore have been unsafe to drive for a considerable time prior to the accident; from the time that the nuts were not properly tightened, or, at the latest, after the first number of studs had fractured and it was only a matter of time for the overload process to occur. The vehicle was driven throughout this time, and particularly, while the fatigue process caused the remaining studs to fail. The fact that Haoma's management may not have been aware of this situation is not relevant for a breach of the warranty to occur.
The Insurance Commission of Western Australia's defence must therefore be upheld and Haoma's third party claim be dismissed.
Schedule of Past Medical Expenses
Acupuncture Accounts
17.03.07
$35.00
11.03.07
$65.00
Massage Accounts
04.07.05
$65.00*
10.11.05
$65.00*
10.11.95
$60.00*
05.12.05
$39.99*
31.03.07
$80.00
30.08.07
$80.00
12.12.07
$65.00
19.06.08
$50.00
25.06.08
$10.00
14.08.08
$35.00
09.11.08
$40.00
25.07.09
$60.00
Medical Accounts
Edgar Street Medical Centre
11.12.03
$39.15*
Edgar Street Medical Centre
11.12.03
$69.70*
Dr Jack Edelman
30.01.04
$176.10*
Flinders Square Medical Centre
30.01.04
$39.15*
Dr Bruce Low
03.05.04
$103.60*
Dr D Latham
03.11.04
$214.30
Unknown
$39.15*
Dr D Latham
05.03.04
$53.85
Whitfords Group
17.05.04
$60.75*
Dr Geoffrey Boyce
19.05.04
$71.95*
Schedule of Past Medical Expenses (cont'd)
Barrier Reef Medical Centre
26.05.04
$40.50*
Barrier Reef Medical Centre
26.05.04
$40.50*
Barrier Reef Medical Centre
26.05.04
$40.50*
Barrier Reef Medical Centre
26.05.04
$40.50*
Barrier Reef Medical Centre
06.04.04
$69.70*
Dr Geoffrey Boyce
06.05.04
$103.60*
Cairns
07.05.04
$526.75*
Dr B Low
27.07.04
$30.35
Dr Bruce Low
22.11.04
$54.05*
Dr Bruce Low
29.11.04
$54.05*
Dr Paul Glendenning
01.09.05
$94.05*
Cairns
13.01.05
$110.00*
Dr D Latham
03.02.05
$65.45
Delta Health Medical Centre
03.10.05
$138.95*
Delta Health Medical Centre
03.10.05
$20.70*
Delta Health Medical Centre
03.10.05
$43.25*
Dr E Jenkins
03.10.05
$45.00
Redlynch Medical Service
18.03.05
$105.00*
Redlynch Medical Service
18.03.05
$87.00*
Redlynch Medical Service
29.04.05
$87.00*
Dr E Jenkins
23.05.05
$91.30*
Dr Nai Y Lai
27.06.05
$191.05*
Delta Health Medical Centre
07.06.05
$138.95*
Redlynch Medical Service
08.03.05
$87.00*
Dr Paul Glendenning
26.08.05
$187.95*
Dr E Jenkins
30.08.05
$63.65
Dr E Jenkins
19.09.05
$138.95
Schedule of Past Medical Expenses (cont'd)
Delta Health Medical Centre
14.11.05
$90.45*
Queensland
24.11.05
$1,150.17*
Sprague Radiology
28.11.05
$1,580.25*
Delta Health Medical Centre
28.11.05
$90.45*
Dr E Jenkins
05.01.06
$64.85
Dr E Jenkins
09.02.06
$93.85
Dr J Savage
20.12.06
$165.80
Dr G Haussmann
02.12.08
$643.15
Dr J Brown
05.12.08
$115.05
Dr B Low
11.11.08
$67.20
Dr B Low
13.11.08
$90.45
Dr G Haussmann
13.11.08
$98.75
Dr J Brown
21.11.08
$115.05
Dr J Brown
28.11.08
$115.05
Dr J Brown
12.12.08
$115.05
Dr J Brown
19.12.08
$115.05
Dr J Brown
16.01.09
$115.05
Dr J Brown
23.01.09
$115.05
Dr R Larsen
02.01.09
$383.10
Dr J Brown
06.07.09
$115.05
Dr B Low
08.01.09
$33.75
Dr J Brown
09.01.09
$115.05
Dr E Guazzo
26.07.10
$99.87
Dr B Low
17.02.11
$35.15
Schedule of Past Medical Expenses (cont'd)
Rehabilitation & Physiotherapy Accounts
Amanda Gale Physiotherapy Clinic
06.05.04
$134.70*
Amanda Gale Physiotherapy Clinic
25.05.04
$258.10*
Amanda Gale Physiotherapy Clinic
20.07.04
$249.00*
Amanda Gale Physiotherapy Clinic
20.07.04
$63.80*
Amanda Gale Physiotherapy Clinic
10.08.04
$41.50*
Amanda Gale Physiotherapy Clinic
13.10.04
$124.50*
Amanda Gale Physiotherapy Clinic
09.11.04
$41.50*
Amanda Gale Physiotherapy Clinic
04.01.05
$140.00*
Miscellaneous Medical Accounts
Cairns Pty Ltd
13.04.04
$123.85*
Cairns Pty Ltd
28.04.04
$90.45*
Cairns Pty Ltd
19.05.04
$60.30*
Cairns Pty Ltd
17.06.04
$60.30*
Cairns Pty Ltd
09.07.04
$90.00*
Cairns Pty Ltd
09.11.04
$33.90
TENS Machine
05.05.06
$126.00*
Total of past medical expenses
$11,674.03
5
25
2