Goodman Fielder t/as Meadow Lea v Darren SYKESGOODMAN Fielder t/as Meadow Lea v Integrated Workforce

[2005] NSWCA 220

CITATION:	GOODMAN FIELDER t/as Meadow Lea v Darren SYKESGOODMAN FIELDER t/as Meadow Lea v INTEGRATED WORKFORCE [2005] NSWCA 220
HEARING DATE(S):	6 June 2005
JUDGMENT DATE:	30 June 2005
JUDGMENT OF:	Mason P at 1; McColl JA at 57; Hunt AJA at 58
DECISION:	Appeal dismissed with costs

CATCHWORDS:	NEGLIGENCE - forklift accident in the course of employment - breach of duty of care - failure to provide safe working equipment / safe system of work - damages with respect to future loss of income - s126 Motor Accidents Compensation Act 1999 - "cushion" award - most likely future circumstances - stated intention of plaintiff to retire. (ND)
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002
CASES CITED:	TNT Australia Ltd v Christie [2003] NSWCA 47 Lanza v Codemo [2001] NSWSC 845
PARTIES:	GOODMAN FIELDER t/as Meadow Lea Darren SYKES INTEGRATED WORKFORCE
FILE NUMBER(S):	CA 40485/04; 40823/04
COUNSEL:	Appellant: L King SC/ I Cullen Respondents: A Parker (Integrated Workforce) J Sexton SC/ P Regattieri (Sykes)
SOLICITORS:	Appellant: Eakin McCaffery Cox Respondents: Moroney Betts (Integrated Workforce) Doherty Partners (Sykes)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1264/03 DC 6922/02
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ

CA 40485/04
CA 40823/04

MASON P
McCOLL JA
HUNT AJA

Thursday 30 June 2005

GOODMAN FIELDER LTD t/as MEADOW LEA v Darren SYKES

GOODMAN FIELDER LTD t/as MEADOW LEA v INTEGRATED WORKFORCE (NSW) LTD

JUDGMENT

1 MASON P: An appeal and application for leave to appeal were heard concurrently. Each arises out of separate proceedings that were heard concurrently in the District Court.

2 The respondent Mr Sykes (hereafter, the plaintiff) was an employee of the opponent, Integrated Workforce (NSW) Ltd, a labour hire firm that contracted his services to the appellant, Goodman Fielder Ltd t/as Meadow Lea Foods.

3 On 7 March 2001 the plaintiff sustained a crush injury to his left foot when operating a forklift at the appellant’s premises.

4 The plaintiff sued the appellant for breach of duties of care analogous to those of an employer (cf TNT Australia Ltd v Christie [2003] NSWCA 47). It was pleaded that the appellant was in breach of its duty to take reasonable care for the plaintiff’s safety by providing safe working equipment and a safe system of work. The appellant did not dispute its duty, but denied breach and pleaded contributory negligence on the plaintiff’s part.

5 The related proceeding was brought by the employer against the appellant. It was agreed at trial that in the event that the plaintiff succeeded against Goodman Fielder, Integrated Workplace’s right of recovery against Goodman Fielder did not survive, but Integrated Workplace would be entitled to recover an agreed sum of $21,053.54 being interest on compensation paid to the plaintiff between the accident and 2 January 2004.

6 In the upshot, the plaintiff and the opponent made common cause in this Court, defending the trial judge’s finding of negligence against the appellant. If that finding stands, the leave application must fail.

7 There is a separate issue in the appeal that does not touch the opponent but which was agitated as between the appellant and the plaintiff. As the matter was ultimately pressed in this Court, the dispute relates to the future economic loss component of the damages award.

8 The principal evidentiary contest was between the testimony of the plaintiff on the one hand and that of Messrs Laing and Burnett, employees of the appellant, on the other. The carefully expressed reasons of the primary judge indicate the areas in which the plaintiff’s evidence was accepted. The appellant faces well-known difficulties in attacking findings of primary fact made by a trial judge who had the opportunity to see the witnesses. I am left quite unpersuaded as to appealable error, but shall advert to the principal lines of attack as I recount the facts as found by Judge Murrell SC.

9 The judge described the plaintiff as an honest, forthright witness (J8). Mr Burnett was accepted as a careful and reliable witness (J9). Mr Laing appeared to her Honour to be an easy-going person who did not have a good recall of some matters (J9).

10 The plaintiff was posted to the appellant’s Camellia premises on 30 January 2001. He was a licensed driver whose experience included driving stand-up reach forklift trucks. He had a good understanding of the relevant braking methods and distances (J28). He was injured on 7 March 2001 while driving a stand-up reach forklift that had been provided to the appellant by Adapt-A-Lift.

11 The workplace was a warehouse with narrow aisles. The plaintiff was required to use a conventional forklift and the reach forklift. On a 10 hour shift, he would use the reach forklift for two to three hours, working in confined areas (J24, 38).

12 An operator using the forklift in question stands on a platform side-on to the normal/reverse direction of travel with the right hand operating the forward/reverse toggle upon which are mounted buttons for the operation of the forks. Steering is controlled by a joystick held in the left hand. The operator’s left foot depresses a pedal which is a clutch/brake. All functions of the machine are suspended if the pedal is not depressed.

13 There are two methods for bringing a reach forklift to a stop. Its direction could be reversed (referred to as plugging), or alternatively the operator’s foot could be lifted from the clutch/brake. Whichever braking mechanism is used the vehicle should ordinarily stop within one metre (J28).

14 On 12 February 2001 there was an accident involving a sit-down forklift truck. The driver, Mr de Silva, was driving with his left knee protruding outside the vehicle when it struck racking, resulting in a fracture to the leg. Mr de Silva was a large man, but apparently not so big that he was incapable of keeping his body within the confines of the vehicle.

15 The accident was investigated and there were discussions with the supplier. In the upshot, the sit-down forklift was replaced with a stand-up model. This was a considered response to the accident: it does not follow that it was reasonable in all of the circumstances, as the appellant urges us to accept.

16 Mr Laing’s cross-examination about the aftermath of this incident would have been damaging to the appellant’s case. He was in charge of warehousing procedures at Camellia. The replacement of one type of vehicle with another was discussed with his immediate superior, Mr Burnett.

17 Mr Laing agreed that the accident caused him to be aware that people were likely to suffer quite severe injuries if parts of their body protruded. He agreed that the only safe way to stop this was to put a cage around the lower part of the entrance to the operator’s cabin. Mr Laing drew no distinction in this regard between sit-down or stand-up reach forklifts (Black 176N, 177D). Following the second accident (involving the plaintiff) the appellant had a gate put on the stand-up forklift.

18 Mr Laing was at pains to point out that the original forklifts were “given to us under the Australian standards of safety” (Black 177). These standards were not put into evidence, but it seems to be common ground that uncaged reach forklifts did not contravene any Standard on that account. This, of course, is not conclusive as to want of negligence: see Lanza v Codemo [2001] NSWSC 845 at [169] per Wood CJ at CL, where the authorities are collected.

19 Mr Laing also strove to maintain that being wise after the event of two accidents was not the same as being negligent between the first and second accident. A similar proposition was urged in this Court by senior counsel for the appellant.

20 The trial judge did not fall into the hindsight fallacy. Mr Laing’s evidence conceded the relevant similarity between the two accidents. He also agreed, ultimately, that after the first accident, at least, he was aware that nobody should be allowed to use a reach forklift truck unless it had a proper safety device which would keep body parts within the parameters of the machine (Black 178D). The trial judge was entitled to regard this as significant evidence, as she obviously did (see J36, 74).

21 The plaintiff gave evidence, which was accepted, to the effect that the particular stand-up forklift supplied to him had a problem with its stopping distance. Compared to other such vehicles which he had driven, this one took significantly longer to come to a halt, taking up to 1.5m. The plaintiff told Mr Laing about this “safety issue” and also complained about the absence of a “safety cage”. This evidence was accepted (J42-43). The judge also accepted the plaintiff’s evidence that he complained in Mr Laing’s presence about a “near miss” involving his shoulder, raising the need for caging and complaining about the stopping distance. This occurred at a training session on 23 February 2001 (J45-50).

22 The accident occurred on 7 March 2001, about three weeks after the plaintiff had begun to drive the sluggish stand-up forklift. The following version of the accident, taken from the reasons below, is consistent with the plaintiff’s evidence (see esp Black 12-13, 106-9) and obviously represents the primary facts as accepted by the trial judge. Her Honour said:

[57] The plaintiff was reversing towards a wall as the only way to do the task was to reverse as close as possible to the wall and then come forward and swing in. He had enough room to perform the manoeuvre. He was carrying a load of about 200 kilograms. When he was about 1.5m from the wall and as he was looking towards the wall, he “automatically” put the vehicle from reverse gear into forward gear so that the machine would slow and then engage in forward gear. However, the machine did not slow. On no previous occasion, had the vehicle failed to slow when gears were changed.
[58] Immediately, the plaintiff took his left foot off the clutch/brake, leaving his body weight supported predominantly by his right foot. The machine shuddered but kept moving towards the wall. According to the plaintiff, it was not unknown for the vehicle to shudder. He knew of the possibility that the vehicle would shudder. Because of the shudder and the fact that his weight was on his right foot, the plaintiff became unbalanced and his left foot “flew out” of the vehicle and became crushed between the vehicle and the wall. The vehicle came to a halt with the plaintiff’s left foot crushed in that position. It is possible that the plaintiff subconsciously reacted to the threatened impact by throwing out his own left foot to fend off the impact, but I think it more likely that the foot flew out because the plaintiff was destabilised by the shudder.

23 One portion of the plaintiff’s testimony deserves particular mention at this stage. The following evidence was given in cross-examination (Black 108-110):

Q. What I’m suggesting to you, sir, is at the stage that you assessed – sorry, you first commenced to put the machine into forward, where were you looking?
A. Where was I looking? At the wall.
Q. Were you looking over your left shoulder at the wall, or were you looking to the right to where you were going to go into the bracket?
A. No, you don’t look over your right. You look where you’re going, towards the wall, so then you can come off the wall and put the palette in this hard to place spot.
Q. But your intention was to stop, and go forward again, and put the pallet in, wasn’t it?
A. That’s correct.
Q. That’s why you put the machine into forward?
A. Correct.
Q. When you did that, where were you looking?
A. When I did that I was looking at the wall.
Q. You then said, “I immediately took my foot off the clutch brake, the machine shuddered and kept on moving towards the wall”.
A. That’s correct.
Q. Had you ever felt a shudder like that before?
A. No, nor had I experienced the forward-reverse momentum slowing down, so when you take your foot off the clutch brake yes, the machine shudders from time to time.
Q. Had you experienced a shudder like that on that machine prior to the day of the accident?
A. Yes.
Q. When you took your foot off the brake, you felt a shudder?
A. A lot of reach trucks shudder when you take your foot off the clutch brake.
Q. I’m talking about that particular truck?
A. Yes.
Q. You were aware that if you took your foot off the clutch brake, it would shudder?
A. May.
Q. You were leaning forward so that your right hand was on the gear stick?
A. I wouldn’t say I was leaning forward, I’m six foot tall, I’ve got long arms, there’s no lean involved.
Q. Where was your left arm? Were you hanging on?
A. Left arm would have been sitting up on the operating platform.
Q. Your intention was to go forward?
A. My intention was to go as close as I could physically go to the wall because that’s what you had to do to put this particular pallet in its rightful place.
Q. You see, you knew that there might be a shudder, you say, was that a normal type thing that you’d experienced before in reach forklifts when you took your foot of the dead man’s clutch?
A. I wouldn’t say it’s a surprise.
Q. So you had experienced them before, other times driving stand-up trucks?
A. Yes.
Q. It wasn’t a particularly heavy shudder, was it, on this occasion?
A. Well, it was a noticeable shudder for it to adjust my weight because I was on one foot.
Q. If you’re on one foot you were leaning forward onto your right foot, weren’t you?
A. I don’t know what you’re getting at. I don’t know how I’m supposed to answer that.
Q. You were on one foot. Were you on your right foot?
A. That’s correct.
Q. So in order to be balanced you had your hand on the gear stick, your right hand on the gear stick pushing it forward?
A. That’s correct.
Q. And your weight was leaning towards the front of the vehicle?
A. No, I’d say I was fairly – I’m tall. My legs are healthy. I was in a fairly upright position.
Q. You were aware that sometimes there might be a bit of a shudder?
A. That’s correct.
Q. Nothing particularly unusual about this shudder on this occasion, was there?
A. Combined with the machine not slowing down, as my previous experience was, that combined with that was unusual, yes.
Q. But I’m talking about the shudder that you’ve told us about.
A. I just said it was unusual.

24 Three observations about this passage are relevant in light of the issues raised by the appellant in this Court.

25 First, the plaintiff said that he was looking at the wall he was reversing towards up to the time when he put the machine into forward gear as the primary method of stopping it (Black 108S). Elsewhere he said that, when he attempted to shift the vehicle from reverse to forward gear, he assumed that it would respond (Black 12). The plaintiff adhered to this evidence when later challenged on the basis that he should have been looking backwards at the end of the aisle when he ran into the brick wall (Black 113). This evidence was logical and it was accepted by the primary judge (J70).

26 The second observation is that the plaintiff was averring that he put the forklift into forward gear at a point far enough away from the wall for it to stop if it had responded as expected (Black 109L). Elsewhere he adhered to the proposition that he put the particular vehicle into forward gear far enough away from the wall he was looking at for it to stop in the normal course (for the particular vehicle), ie at least 1.5m away (see Black 12, 114).

27 Thirdly, the plaintiff took his foot off the clutch/brake as an additional braking mechanism. This operation might cause shuddering, but on the particular occasion it was the combination of the noticeable shuddering and the failure of the machine to slow down in time that contributed to him being unbalanced, allowing his foot to drift outside the confines of the cabin where it was crushed against the wall (Black 108-9, 110. See also Black 12-13).

28 The trial judge did not mention the evidence of “unusual” shuddering in her account of the facts. Perhaps she rejected it, perhaps she thought it of no consequence. Contrary to the appellant’s submission I do not consider this a significant omission. The plaintiff said at one stage that a shudder was no worse than previously experienced (Black 108X). The point being emphasised throughout by the plaintiff was that the combination of events made the situation unusual (Black 110).

29 I do not accept the appellant’s submission that the mechanics of the accident as described by the plaintiff revealed an entirely unexpected and unforeseeable combination of events for which no responsibility could be attributed to the appellant. Nor did the accident necessarily betoken a negligent misjudgement on the plaintiff’s part.

30 What also was accepted was that the plaintiff’s left foot “flew out” because the process unbalanced him (J58, 72). The appellant’s challenge to this critical finding was unconvincing. There was explicit evidence to this effect (Black 13, 109). The trial judge was clearly entitled to accept the plaintiff’s version of the accident, as she did. It strikes me as common sense that a person standing on one foot on a shuddering vehicle when his hands were being used to steer the vehicle might, in the agony of the moment, become unbalanced and allow his foot to move outwards from the vertical line of his body.

31 Mr Burnett visited the plaintiff in hospital on the day of the accident. He gave evidence to the effect that the plaintiff said he was “reversing down the aisle, and he didn’t see the wall, and ran into it” (Black 199). This evidence was consistent with Mr Burnett’s record in the accident form that he filled out and signed the next day (Blue 258). The plaintiff denied that he had made such an admission to Mr Burnett. Implicitly, but obviously, the trial judge accepted the plaintiff on this point. Her Honour had earlier referred to the Burnett evidence (J64, 65), also observing that the WorkCover report completed by Mr Burnett on 12 March 2001 (Blue 228) made no reference to the plaintiff admitting that he failed to keep a proper lookout (J66). Mr Burnett had been challenged about this in cross-examination and it had been put to him that the plaintiff had not made any admission of careless driving (Black 212).

32 The appellant accepted in its written submissions that the judge must have implicitly rejected Mr Burnett’s evidence in this regard. It complains about the absence of reasons on the point. Application was made to enlarge the grounds of appeal to include absence of reasons as a specific legal challenge. The application was opposed, inter alia on the ground that it had not been raised until well into the hearing of the appeal. I would not grant the necessary leave to raise this point. Its proper adjudication would require close examination of the way the case was argued at trial and it was too late for this to be done with justice to the rights of the plaintiff. In any event, the primary judge accepted the plaintiff as to his version of the accident. I am unpersuaded that she overlooked the contested admission in her overall analysis.

33 Furthermore, the matter was not necessarily determinative in a case where providing a guard cage would have been a reasonable response to the risk of casual inadvertence on the part of an operator performing a repetitive task where the margin for error was always small.

34 After the accident the appellant acquired a new sit-down vehicle and arranged to have a gate affixed to it. There was evidence that such gates had been used elsewhere, at least for sit-down vehicles. Mr Laing’s evident about what he discerned in light of the earlier accident has already been mentioned. Judge Murrell was entitled to conclude, as she did, that this evidence showed that it was always possible to make a relatively simple modification that would have prevented the type of accident that occurred (J75). This conclusion was well open in the absence of any evidence from the appellant suggesting that the cost was excessive in the circumstances. The appellant accepted that it bore an evidentiary onus in this regard.

35 In recounting the primary facts I have addressed the appellant’s challenges to them. The appellant also contested the trial judge’s evaluation that the totality of the conduct betokened negligence. Her Honour said this:

[70] It is not established on the balance of probabilities that the vehicle upon which the plaintiff was injured was faulty. The evidence establishes that when the accident occurred the plaintiff was working under moderate (but not unreasonable) pressure in a confined area close to high racking and a wall. Because of the limitations of the work space, he had just enough room to conduct the manoeuvre safely, provided that there was not operator misjudgement or vehicle failure. He followed correct procedure when he reversed towards the wall and then attempted to shift the vehicle from reverse to forward gear. When the plaintiff attempted to shift the vehicle from reverse to forward gear he assumed that the vehicle would respond, so focussed his attention on the direction in which he anticipated that the vehicle would move, with the result that he was not looking at the wall at the time of impact.
[71] The shift from reverse to forward was unsuccessful for reasons which are unclear. It may have been unsuccessful because of minor operator error or misjudgement of a type which occurs from time to time but the defendant has not established that on the balance of probabilities.
[72] The plaintiff correctly reacted to the vehicle’s lack of response by lifting his foot of the clutch/brake, but the vehicle shuddered, putting him off balance and throwing his left foot outside the vehicle. Because of the confines of the area in which the plaintiff was working, before the clutch/brake brought the vehicle to a halt, the vehicle impacted or came close to impacting with the wall, crushing the plaintiff’s left foot.
…
[74] Prior to the accident, the defendant knew that the plaintiff was working on a heavy vehicle in confined areas which allowed little room for error. It is obvious that the operation of the clutch/brake involved the operator lifting his leg and thereby become less stable. The defendant knew that the plaintiff was concerned about the stopping efficiency of the vehicle and that he had had a “near miss” in relation to a shoulder injury. It knew that, almost 4 weeks earlier, the leg of another operator had been seriously injured because it had protruded outside the vehicle. It knew that it was unsafe for an operator to use a vehicle of the type in question unless the machine was modified so as to contain operator’s body parts within it.
[75] Subsequent events show that it was possible to make a relatively simple modification. I consider that a modification of the type illustrated in Exhibit F would have contained the plaintiff’s foot within the vehicle because it would have prevented the plaintiff’s ankle (and attached foot) from being thrown out.

36 I see no error in these conclusions.

37 One additional ground of appeal concerned the rejection of the evidence of Mr Lavender and the failure to provide proper reasons for having done so.

38 Mr Lavender was a forklift mechanic employed by Adapt-A-Lift. He inspected the forklift on the day of the accident, finding no fault with the plugging mechanism or the “dead-man” clutch brake. This evidence is mentioned in the judgment (J47) and it appears to be the basis of her Honour’s conclusion that it was not established on the balance of probabilities that the vehicle was faulty (J70). Mr Lavender’s evidence did not compel rejection of the plaintiff’s testimony about what happened at the time of the accident. It is not clear in any event whether Mr Lavender tested the machine with a load equivalent to that carried by the plaintiff at the time of the accident.

39 The judge recorded Mr Lavender’s evidence that he did recall complaints about the vehicle being made by the plaintiff during an early training session (J46-7). She analysed the complaint evidence carefully, declining to accept the plaintiff’s evidence in its totality. I see no appealable error in regard to Mr Lavender.

40 Various matters were raised at trial as to contributory negligence. There was no reduction of damages on this account. In this Court, the appellant complained as to the judge’s failure to address the particulars of contributory negligence alleging that the plaintiff had failed to keep a proper look out or to take adequate care for his own safety. In truth, these matters were dealt with when her Honour made findings in the plaintiff’s favour about his driving immediately before the accident (J28, 56-59, 70-72).

41 The remaining issue affects only the plaintiff and the appellant.

42 Judgment was given on 21 May 2004. The one item of damages that remains in dispute is the award of a “cushion” of $110,000 with respect to future loss of income. Her Honour’s reasons were (118-124):

[118] It was the plaintiff’s evidence that, prior to the accident, he was planning to retire at 35 years of age (he turned 35 years old on 10 March 2002) and thereafter live in Thailand. It was his unchallenged evidence that he would not now pursue that plan because of concern about the appearance of his left foot (which would be exposed by the wearing of sandals in the hot Thai climate) and because of his desire to be close to Australian standard medical attention.
[119] The plaintiff stoically maintained that he could drive forklift vehicles now. However, in September 2003, Dr Beer reported that the plaintiff was not able to resume his former duties as a forklift driver, although he was fit for sedentary work in sales-type duties.
[120] Mr Mayr, the plaintiff’s treating psychologist, reported that the plaintiff had a positive work ethic and would continue to attempt to find appropriate employment. However, Mr Mayr said that employment should not be around potential re triggers of the traumatic work injuries. Therefore, the plaintiff should not work around forklifts or dangerous machinery.
[121] It is clear from the reports of Dr Beer and Mr Mayr that, while the plaintiff may be physically capable of driving forklift vehicles or undertaking similar work for a limited period, he is now quite unsuited to full-time work similar to that of a forklift driver.
[122] I think it likely that, when his business is sold, the plaintiff will seek to establish and operate another business of a less demanding type and that, given his stoic nature and record of success with his current business, there is a reasonable prospect that future business ventures will be successful and the plaintiff’s earning will equal his pre accident earnings. However, it must be acknowledged that small businesses often fail. In the past, the plaintiff’s attempt at share trading failed. The plaintiff cannot pursue a business which is too physically demanding, which eliminates many small businesses.
[123] Psychologically, the plaintiff will probably remain unsuited to many employment situations for which he was formerly suited, such as sales work which involves intense client contact. He cannot undertake much of the physical work for which he was formerly suited and which was the type of work which he generally undertook prior to the accident.
[124] The plaintiff has twenty-eight working years ahead of him. I consider his future economic loss to be substantial and, taking into account vicissitudes and loss of superannuation, allow a lump sum or cushion of $110,000.

43 It was agreed at trial that damages were to be assessed under the Motor Accidents Compensation Act 1999.

44 The provision relating to future economic loss is s126 of that Act, which is in similar terms to s13 of the Civil Liability Act 2002. It is not referred to in the judgment, perhaps because no reliance was placed upon it at trial. The appellant now contends that the award is vitiated because the plaintiff did not “first satisfy the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury” (s126(1)).

45 The appellant does not dispute that a cushion award may be made under this provision. Its complaint is that the trial judge failed to give effect to certain evidence about the plaintiff’s intentions to “retire to Thailand” as they existed prior to the accident. Implicit in this complaint (in reference to s126(1)) is the submission that the plaintiff’s most likely future circumstances but for the injury would have been a lifetime of non-remunerative indolence.

46 The plaintiff was almost 34 years old at the date of the accident. There was no suggestion in the evidence that he was wealthy, independently or otherwise. His childhood had been troubled. After completing Year 10 at high school he joined the Navy for about 4 years. Between 1994 and the time of the accident in 2001 he had held various positions, including warehousing and transport manager, purchasing officer, cleaner, security officer, self-employed courier and forklift driver. He had tried his hand at share trading at home for about six months in 2000 but with no success (J18). Nothing suggested that he stood on the threshold of a life free of concerns about remuneration.

47 The plaintiff was in hospital for nine days after the accident. In May 2001 his left big toe was amputated in consequence of injuries stemming from the accident. He was certified unfit for work until September 2001. There were significant continuing disabilities (J88-97), resulting in an award of general damages of $140,000.

48 During cross-examination about his evidence concerning economic loss the plaintiff was asked whether he was aware that the appellant’s plant at Camellia was in the process of being wound down. He agreed that it was. The following questions and answers were given (Black 83).

Q. Indeed, it wound down so that production ceased there in about June 2001.
A. Unaware of that.
Q. Were you still intending to go for your two weeks’ holiday in Thailand in April?
A. I was going to retire to Thailand at the age of 35.
…
HER HONOUR: Q. Did you say you were going to retire to Thailand when you were 35?
A. That’s correct.
Q. Live there fulltime.
A. In Northern Thailand, Yes.
CULLEN: Q. Is that still your hope?
A. I had the foot accident, and I now work seven days a week rather than being retired at 35.
Q. If you can sell your business, do you still hope to retire to Thailand?
A. I don’t feel comfortable enough with my foot to be able to go up there, and the hospitals aren’t the same as they are in Australia.

49 In retrospect, the ambiguity in this evidence should have been clarified, if not by further cross-examination, then by re-examination and/or (possibly) further questions from the judge.

50 The appellant submits that this evidence effectively precluded any award for further economic loss. Implicit in the argument are the submissions that “retirement” meant the lifelong cessation of paid employment, that an expression of intent established probability to that effect, and that such expressed intent contained no relevant unstated assumptions such as “provided I am fit and healthy enough for the lifestyle change involved”.

51 Judge Murrell must be taken implicitly to have answered one or more of these questions in the negative, whether or not she turned her mind to the difficult question (unnecessary to be decided here) as to the extent to which the common law has been changed by the statutory provisions referred to.

52 I see no error in the conclusion reached by her Honour to the effect that an appropriate cushion award should be made. In my view, it is unlikely that the plaintiff ever intended permanently to give up paid employment at the age of 35, whether in Thailand or elsewhere. His earlier lifestyle betrayed no hint of non-acquisitive asceticism. His tendencies towards self-mortification concentrated on long-distance cycling and rock-climbing in Thailand. The capacity to continue the latter activity was thwarted by the amputation of his toe due to the injuries suffered in the workplace accident.

53 Nor is there any suggestion that the plaintiff had a “rich uncle” or other means of providing the financial wherewithal for his sustenance let alone that of any dependent. He had recently broken up a longstanding relationship with a girlfriend, but there was nothing to indicate that he was about to abjure permanently personal relationships that might give rise to financial dependency on him.

54 It is conceivable that retirement “to Thailand” was an expression adverting to the change between an Australian and a Thai lifestyle, without suggesting any intention of giving up paid employment. In any event, it must implicitly have had unstated assumptions, including assumptions as to continuing fitness and medical needs.

55 The particular challenge is therefore rejected. There was no other complaint about the reasoning that led to the cushion award.

56 For these reasons the appeal and the application for leave to appeal should each be dismissed with costs.

57 McCOLL JA: I agree with Mason P.

58 HUNT AJA: I agree with Mason P.

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