Hall v Martin
[2020] ACTSC 233
•26 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hall v Martin |
Citation: | [2020] ACTSC 233 |
Hearing Dates: | 20 July 2020 – 27 July 2020 |
DecisionDate: | 26 August 2020 |
Before: | Mossop J |
Decision: | See [187] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff injured when boom of crane hit him – first defendant uninsured – first defendant denied any employment relationship – assessment of the credibility of the plaintiff and the first defendant’s evidence – on the balance of probabilities the plaintiff was an employee – consideration of the medical evidence – assessment of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 43 Court Procedures Rules 2006 (ACT), r 440(2) Work Health and Safety Regulation 2011 (ACT), ss 33, 34, 35 |
Cases Cited: | Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81 Lewis v Woolworths Ltd [2018] ACTSC 200; Aust Tort Reports 82-407 Pidcock v Milosis [2019] ACTSC 209 Ryrie v Tanner (No 2) [2020] ACTSC 104; 92 MVR 27 |
Parties: | Donovan Hall (Plaintiff) William Martin (First Defendant) Workers Compensation Default Insurance Fund Manager (Second Defendant) |
Representation: | Counsel A Stone SC and D Crowe (Plaintiff) Self-represented (First Defendant) D Richards (Second Defendant) |
| Solicitors AC Lawyers (Plaintiff) Self-represented (First Defendant) Minter Ellison (Second Defendant) | |
File Number: | SC 30 of 2019 |
MOSSOP J:
Introduction
This is a common law claim for damages for personal injury. The plaintiff alleges that on 30 January 2016 he was injured whilst employed by the first defendant, who conducted a scrap metal business. That business was conducted from premises in Fyshwick, Australian Capital Territory (ACT). On the day of the accident the plaintiff alleges that he and another employee, Paul McDonald, were tasked with making a delivery to a property of the first defendant at Cullulla Road in Tarago, New South Wales (NSW). (The correct address is Lower Boro rather than Tarago but as Tarago is referred to in the plaintiff’s claim the locality will be referred to as such in these reasons). The plaintiff alleges that he was standing on the back of a truck when Mr McDonald operated a crane that was located on the back of the truck in a way that knocked the plaintiff from the vehicle. He alleges that he fell off the side of the truck and broke his left patella.
The first defendant is the plaintiff’s uncle. It is alleged that he had employed the plaintiff in his scrap metal business on a cash‑in‑hand basis for about two weeks prior to the accident. The first defendant did not hold workers compensation insurance.
The second defendant is the Default Insurance Fund (DIF) established under the Workers Compensation Act 1951 (ACT) (WC Act). It requested to be joined as second defendant in the proceedings in anticipation of the first defendant not defending them.
On the Friday prior to the commencement of the hearing on the following Monday, the plaintiff filed an application for default judgment arising out of the failure by the first defendant to file a defence. On the first day of the hearing the first defendant appeared. He was unrepresented and sought leave to file a defence in the proceedings. Ultimately, he was granted leave to file the defence and the application for default judgment was dismissed. The grant of leave to file the defence was made on the condition that he not call any witnesses or make any submissions in the proceedings. That had the effect of confining the contest to one between the plaintiff and the second defendant. Notwithstanding that the WC Act is not particularly clear about the status of the DIF in such circumstances, the position adopted meant that the plaintiff had only a single opponent, that the matters of substance relating to the claim could be litigated and, consistent with his wishes, the first defendant would not participate in the proceedings other than as a witness.
The pleadings
There was a persistent issue that arose out of the pleadings in the case, in particular, out of the terms of the second defendant’s defence.
That defence denied that the plaintiff had been employed by the first defendant. There were non-admissions in relation to the paragraphs in the Statement of Claim relating to the events said by the plaintiff to have given rise to his injuries, with the second defendant responding that it “does not know and cannot admit” the relevant paragraph. These non‑admissions operated as denials: Court Procedures Rules 2006 (ACT) (CPR) r 440(2), with the result that the plaintiff was put to proof. However, non-admissions do not permit a positive case to be advanced by the second defendant. No application was made to amend the defence. The confined nature of the defence had the effect that the second defendant was significantly constrained in the evidence that it could lead.
Lay witnesses
Donald Newman
Mr Newman worked at the first defendant’s scrap metal yard during the period when the plaintiff worked there. He said he was paid $500 a week in cash out of the first defendant’s pocket. He worked there for a period of 16 months, starting in the latter part of 2015 and leaving in 2017. He had no written employment contract, received no payslip or group certificate and was not paid superannuation.
Because he did not have a driver’s licence, Mr Newman worked mainly in the yard at Maryborough Street in Fyshwick. He said that there were two United Diesel flatbed trucks used as part of the business. He said that the first defendant gave directions about the use of the vehicles.
He had visited the first defendant’s property at Tarago a couple of times. There was a Hiab truck, shown in Exhibit 4, which he saw at the property at Tarago.
Mr Newman gave a description of the processes at the scrap metal yard in Fyshwick. He said that the first defendant would sometimes help with the physical work by operating the copper wire stripper machine. The other workers there were Mr McDonald and the plaintiff. He said that the first defendant was in charge. He did see the first defendant’s son Matthew at the yard every now and then. Every now and then Matthew would give orders. Mr Newman said, however, that he (Mr Newman) was employed by Billy (the first defendant) and what Billy said, he did.
He said that there was no paperwork done in relation to the buying or selling of metal at the premises, except in the last two or three months when he was working there.
The day before the incident in question, he described that both United Diesel trucks had been loaded to go to the farm. Mr Newman said that the following morning he saw the plaintiff and Mr McDonald each drive a vehicle and depart the yard. On the vehicles were scaffolding, polythene pipe and scrap. Mr Newman said that his understanding was that the items on the trucks were being taken to the farm at Tarago.
On the day in question he had a conversation with the first defendant, at the yard in Fyshwick, who said that the plaintiff had been hurt at the farm. Mr Newman said the first defendant told him that he did not know how badly the plaintiff had been hurt.
Mr Newman then saw the plaintiff back at the yard with “Joe”. He could not recall Joe’s last name. Joe was driving a Mercedes and the plaintiff was sitting in the passenger seat. He observed that the plaintiff had a scratch across his cheek under his left eye. Mr Newman said that the first defendant spoke to both of them while they were in the vehicle. He heard the first defendant tell Joe to take the plaintiff to the hospital.
After that he saw the plaintiff at the yard on one later occasion when the plaintiff worked there for a day.
Mr Newman ultimately left his employment at the scrap yard because it was not paying him enough money.
Subsequently, he worked with the plaintiff pear picking at Shepparton. This was about two years ago. He said that he observed that the plaintiff had trouble with his knee going up and down the ladder. He said that the plaintiff did not take any medication for that but did use ice, Dencorub or Deep Heat on his knee.
In cross‑examination Mr Newman said that there were collectible cars not intended for scrap kept at the Tarago property, as well as some cars kept there when there was no room at the Fyshwick premises.
He said that the conversation that occurred between the first defendant, Joe and the plaintiff on the day of the incident was no longer than 15 minutes. The part that he heard was the instruction from the first defendant that Joe take the plaintiff to hospital. He marked on a copy of Exhibit 2 the location where that conversation was said to have occurred and that became Exhibit 5.
Mr Newman was asked about complaints made by the plaintiff that he had hurt his calf while picking pears and he said that was correct, as the plaintiff was attempting to protect his left knee and that meant that he ended up placing more pressure on his right calf.
Mr Newman said that there was nothing that he was told by the first defendant to explain why Mr McDonald did not take the plaintiff to the hospital after the incident.
In cross‑examination there was no challenge to Mr Newman’s evidence as to the loading of the vehicles the day before, the conversation with the first defendant in which the first defendant said that the plaintiff had been hurt and the evidence of the plaintiff arriving at the yard with Joe. It was ultimately agreed that no Browne v Dunn point would be taken in relation to this failure to challenge his evidence. However, the absence of any cross‑examination so as to dispute this evidence, and the absence of other evidence in the case that would contradict Mr Newman’s evidence, leaves these aspects of his evidence uncontradicted.
Frances Verheul
Ms Verheul is the plaintiff’s sister. She was a nurse at the Canberra Hospital. At the time the plaintiff alleges he was injured she was told he was at the Canberra Hospital and went looking for him within the hospital. She was also involved in collecting him when he was discharged. She and her sister collected him in her car. The plaintiff lay across the back seat with his crutches as he could not bend his knee. There was an argument between the plaintiff and his sisters about where to go. He insisted on going to Fyshwick to collect some money. Ms Verheul described arriving at a yard in Fyshwick and driving down a narrow lane where she saw a truck and a whole lot of metal rubbish. She got out of the car and helped the plaintiff to get out. She observed the plaintiff hobble down the laneway and talk to two men for about 20 minutes. She stayed at her car. The three men came back to the car and the two men from the yard were introduced to her as Bill and Don (consistent with them being the first defendant and Mr Newman). Bill assured her that he would take care of all of the plaintiff’s needs and to not worry about bills. He gave some cash to the plaintiff and said that there was more to come. She said that everyone seemed happy. Although she had not met the person introduced to her as Bill before that day in Fyshwick, she identified Bill as the first defendant as she had seen him at court on the first day of the hearing.
She was asked some questions in cross‑examination going to the credit of the plaintiff but I do not admit this evidence, as the plaintiff admitted his criminal record and the conditions in s 106 of the EvidenceAct 2011 (ACT) were not met for the admission of the evidence.
Her evidence about having collected the plaintiff from hospital, having taken him to the first defendant’s yard and the nature of the dealings that she gave evidence of at the yard were not matters which were challenged in cross‑examination. No other evidence in the case casts doubt upon her evidence as to what occurred.
The plaintiff
The plaintiff gave evidence that he suffers from dyslexia. That was particularly so when he was a child. He spent two years in institutions when he was 10 or 11 years old prior to returning to live with his family. He completed Year 10 at Campbell High School.
Upon leaving school he worked as a trainee doing soldering work with Honeywell. He then worked for Belconnen Radiators. He completed a bricklaying apprenticeship at TAFE, where he received assistance from an English teacher and Maths teacher in order to complete the written components of the course. Following completion of the apprenticeship he never worked as a bricklayer. He said that this was because of back pain he suffered as a result of suffering from Scheuermann’s disease.
The plaintiff then moved to Western Australia to work as an exploration driller. When he returned to the ACT he had periods of employment as a handyman, a storeman and a forklift driver. There were periods when he received unemployment benefits. There was also a period when he received a disability pension because of his Scheuermann's disease.
Evidence was led of his criminal convictions, including those for which he received periods of imprisonment.
At the end of 2014 he bought his own truck to start his own business. It was an eight‑tonne tipper truck. He used it to pick up rubbish or scrap metal. He would take the scrap metal and sell it to either the first defendant or to another entity referred to as GRI in Beard, ACT. When he sold scrap to the first defendant, the first defendant always paid him in cash.
In 2015 he drove trucks for the first defendant. He used the first defendant’s vehicle and would pick up scrap. He was paid $100 a day and was paid in cash. He also dealt with stripping wire, metal objects and cars at the yard. The first defendant was in charge. The plaintiff said the first defendant’s two sons, Dean and Matthew, were not in charge and he did not see either of them at the yard. The other people who worked at the yard were Ray Thompson, Darren Kelly, Mr McDonald and Mr Newman.
In 2015 the tipper truck which he owned went out to the first defendant’s farm. He said that its registration ran out. He thought this occurred in about June or July in 2015 but appeared to be somewhat uncertain when giving this evidence. So far as he knows, it is still at the first defendant’s farm. He has not driven it since it went there.
In the second half of 2015 the plaintiff was offered other work by a person called Jeremy. Jeremy worked for Toll, a transport company, and offered him work driving a truck which was described as a “heavy [rigid] pantech”. The role was delivering insulation products between Canberra and various locations in NSW. Jeremy was not the owner of the truck. The owner of the truck was an Indian man who lived in Melbourne.
The plaintiff said that he was paid $22.50 per hour. He did not receive payslips, group certificates or superannuation. He was given a credit card which was used to pay for fuel and onto which his wages were paid. Subsequently, his wages were paid directly into his bank account.
In early 2016 the truck broke down and he had no work. At that stage he was living in a caravan with his then partner. He has subsequently fallen out with that woman and is no longer in a relationship with her. Because he was in need of work, he went to the first defendant at his yard. That was a different yard from the yard where the first defendant was operating from in 2015. The plaintiff said he asked the first defendant whether he was able to give him a job and the first defendant said that he was. The plaintiff started the next day. Once again, the arrangement was that he would be paid $100 a day. The work he was doing was stripping metal or wire and driving trucks to do pickups. The trucks were supplied by the first defendant. There was one little truck and two bigger trucks. He described the two bigger trucks as being an Isuzu and a Fuso.
The plaintiff said that in January 2016 he did two trips to Sydney to a scrap metal merchant. He thought the name was “Park or Sidela Park or something like [that]”. (The business is identified in Exhibit 8 as Sell and Parker Pty Ltd.) It was at a location a little way off the M1 on the left-hand side. He could not recall the dates that he went to Sydney.
He only received wages for his work. He was driving the first defendant’s truck and using the first defendant’s fuel. He drove to Sydney with metal on the truck and returned empty. He received money upon delivery of the metal and that was then paid to the first defendant. He started and finished his journey in Fyshwick.
The first defendant paid him in cash on Fridays.
On the day before the accident he did work to prepare for the next day. That involved putting two cars on the back of two trucks. There was one car on each. The plan was to take the two cars to the farm at Tarago and then to go and do a job at Bungendore. The two drivers were to be Mr McDonald and himself, as they were the only two people who could drive the trucks. At that stage, the workers at the yard were Mr McDonald, Mr Newman and himself. There was a forklift at the yard which was usually operated by the first defendant but sometimes by Mr Newman or Mr McDonald. At the previous yard the plaintiff was aware that he was the only one with a ticket to drive the forklift.
The plaintiff said that when people dropped off scrap at the yard, he saw the first defendant would pay them in cash and there were no receipts or invoices or other paperwork.
So far as his employment in January 2016 was concerned, there was no written contract and he did not receive payslips or group certificates. So far as he was aware, there were no records kept in relation to the wrecks at the yard and no records kept of payments received for scrap.
The plaintiff said that he had been to the farm at Tarago in January 2016 and prior to that. He said that the first defendant kept about 500 whole car wrecks there as well as trucks, excavators, containers and glass. There was a forklift at the farm.
The plaintiff said that on 30 January 2016 he and Mr McDonald left the yard at Fyshwick at the same time, however, Mr McDonald arrived at the farm first because the plaintiff’s truck was “playing up”. When the plaintiff arrived, Mr McDonald had already unloaded his truck. They unloaded the car from the plaintiff’s truck using the forklift.
The plan was to then go and collect two cars from Bungendore. In order to do that they needed to use another truck that was at the farm that had a Hiab crane. That truck was not registered. The plaintiff said that any issue arising from the lack of registration was a matter between Mr McDonald and the first defendant.
In order to use the truck a couple of metal bars and some “bits and pieces of metal” needed to be removed from the tray of that truck.
The controls of the crane were on the outside of the vehicle on the driver’s side between the cabin and the tray. Mr McDonald used the Hiab crane to move the metal off the truck. He was having difficulty hooking up the crane to the strap around the metal beam. The plaintiff said that he told Mr McDonald he would jump up and lower down the hook so that Mr McDonald could get the hook through the strap to lift up the metal. The plaintiff said that he was acting as the dogman, and that he had not been given any instructions about this kind of work. He said that whilst Mr McDonald was lowering the beam down so that he could hook it up, the beam swung towards him. The plaintiff tried to move out of the way, but the crane hit him in the face on the right-hand side and he fell to the ground.
He realised that his left knee was injured. He could see that his kneecap was split across the middle into an upper and the lower section. He yelled to Mr McDonald telling him to get his phone. The plaintiff used his phone to call the first defendant and said that there had been an accident and that they could not do the job. He said he needed an ambulance. The first defendant did not want an ambulance out there. Instead, he said that he would get someone to come and pick the plaintiff up. The plaintiff said that he also did not want an ambulance to come because they would take him to Goulburn Hospital and he had “more chance of getting fixed up” if he came to Canberra.
Joe (who was subsequently identified as Joe Tarzia) subsequently rang the plaintiff to say that he was on his way. Mr Tarzia took him to Calvary Hospital via the first defendant’s yard. The plaintiff said he wanted to go there first in order to ensure that he got paid and show the first defendant how seriously he was hurt. He said that Mr Tarzia stopped near the shed and that neither he nor Mr Tarzia got out of the car. The first defendant came over to the car and they had a conversation. He said that the first defendant did not look at his knee, although he was sitting in the passenger seat with the seat pushed right back so if the first defendant looked through the window he could see it. The plaintiff said he had been bleeding from his forehead. He said that they spent less than five minutes at the yard and that the first defendant said to get to hospital. Mr Tarzia took him to Calvary Hospital and then he was sent by ambulance to Canberra Hospital. He had surgery on his left knee, but it has not been the same since.
Upon being discharged from hospital he was collected by his sisters, Ms Verheul and Karen Pegg. His sisters drove him to the first defendant’s yard in Fyshwick where he got out and went on crutches to talk to the first defendant. He said that Mr Newman was there. He told the first defendant that he needed money and that the first defendant owed him wages. The first defendant gave him some money, but he could not recall how much. It was cash from his wallet. The first defendant said that he would look after the plaintiff and pay his wages and that everything would be all right. However, he has not paid him since.
At some stage subsequently the plaintiff said that he had a conversation with the first defendant in which he said that he was going to make a claim and the first defendant said “You can’t do that to me” and “You won’t get nothing out of me”.
The plaintiff had six weeks of physiotherapy following his discharge from hospital. He still sees his general practitioner from time to time in relation to his knee, and said his left knee continues to give him pain and he is unable to run, squat or kneel. If he spends the day on his feet his left knee will swell.
The plaintiff said that since the accident he has tried various periods of employment. He said that he went pear picking with Mr Newman. He did so because he was trying to get back to normality. However, this failed. He had difficulty getting up and down the ladder and leaning out to pick the fruit. He also had difficulty picking things up off the ground and carrying the bag. At the end of the day his leg would be swollen, sore and stiff. He also damaged his good leg because he was relying on his right leg going up and down the ladder and was not evenly balanced. The injury to his right leg has now healed.
The plaintiff was subsequently placed with a weed spraying company through a disability job agency. The business with which he was placed was called Capital Weed Control. He was pleased to have the work. It involved weed spraying around the airport and the “Duntroon Gun Range”. After three months he was terminated. He found that doing that work increased his requirement for Panadeine Forte to four tablets per day (rather than the two that he is currently on).
He said he also did a week’s work picking up litter for “Parks and Gardens” but found that difficult because of cramping, stumbling and bending. He said he could not pick up heavier objects and did not cope with being on his feet for the entire shift.
He was asked about a record in a general practitioner’s notes that said that he had injured his right leg when fishing. He said he was scared to tell the doctor that it occurred when he was going up and down a ladder, however, he could not provide any clear explanation as to what he was scared of.
The plaintiff was asked about his capacity to undertake various activities associated with other possible forms of employment and explained the difficulties that he thought he would have.
He agreed that he had problems with excessive use of alcohol and that he was receiving counselling in relation to that. He said that he had been told that he might need a knee replacement and that if he was told that it was necessary then he would have that operation performed.
He said that after he initially saw his solicitor, he was told to get his tax affairs in order and went to an accountant to get his tax returns done. He said that the accountant worked out the relevant entities to include in the tax return.
Cross‑examination was lengthy. It is not necessary to set out all of the matters which were covered.
The plaintiff was asked about a fine that he received in relation to driving a truck on 16 January 2016. That was an occasion when he said that he had driven to Sydney in the first defendant’s truck. It was put to him that he received the traffic infringement notice and it was sent to his address because he was driving his truck and not the first defendant’s truck. He said he could not recall receiving a fine and that it was not his truck.
He was asked about his time on the disability pension because of his Scheuermann’s disease. He said that he went off the disability pension in the year 2000.
He was asked about his capacity to use technology. The plaintiff said that he could not send an email, does not send text messages and does not own a computer. If he wants to buy something on eBay, he gets his sister to do it for him.
He said that in 2014 and 2015 he was selling scrap to the first defendant every two or three days. He had an eight‑tonne tipper truck which he used to sell scrap to the first defendant for three to six months. He stopped doing this work and let the first defendant’s son Matthew use the truck after he started doing the driving job for Toll.
The plaintiff was asked to draw a plan of the property at Tarago and annotate it. The accuracy of that plan was not challenged during cross‑examination.
He could not recall the type or size of the car on his or Mr McDonald’s truck on the day of the accident.
He could not recall the time of the accident but accepted that the claim form filled out on 29 April 2016, some three months after the accident, was probably correct in stating that it occurred at 10:30am.
The plaintiff said that when driving for the owner of the truck who lived in Melbourne, he was driving five days per week and earning an average of $800-$1000 per week. He said that his pay was initially received on a credit card and then subsequently money was paid to his bank account. The plaintiff denied that he worked for Mr Tarzia.
He was asked how high the truck with the Hiab crane was and he indicated that it came up to about his elbow when his arms were by his side. He said it was 1 m or a bit more above the ground. The height of the truck disclosed in the medical records of 1.8 m or 2 m were put to him. The plaintiff said he could not recall saying those heights, and said the truck was 1 m and a bit. He said that when he was hit, he was at the back of the truck and fell off the left passenger side of the truck. He said that he was bleeding on the face somewhere. He described how he slid across on his bottom towards a little two-tonne truck and then opened the door and sat on the wheel arch. He said that Mr McDonald had a drink of alcohol after the accident. He said that he could not sit in the front seat of the truck because he could not bend his leg and the seat did not move.
The plaintiff was asked a large number of questions about the route and timing of his travel to the hospital.
He was asked a large number of questions about the preparation and content of his 2015, 2016 and 2017 tax returns. He said that his ex-partner helped him with the paperwork and that his accountant helped estimate his income. He was asked about entries in a statutory declaration prepared for tax purposes and some of the entries in his tax returns. He was unable to explain how the amounts in his tax returns were arrived at. It was suggested to him that he put inflated entries in his tax returns so as to increase his entitlement to compensation, a suggestion which he denied.
It was suggested to him that the truck which he drove for Toll was in fact owned by Mr Tarzia, a suggestion which he denied.
The plaintiff was also asked about what he had known about commencing work with Capital Weed Control when he was assessed by Dr James Bodel. The evidence established that he was due to start work on Monday, 22 October 2018 and a clothing order had been placed for him on 17 October 2018, the same day that he saw Dr Bodel. Dr Bodel’s report nowhere recorded that he had been told that the plaintiff was commencing such work in the very near future. The plaintiff said that he could not recall whether he had spoken to Dr Bodel about the issue.
He was asked about his employment with Capital Weed Control and it was suggested to him that he did not cease employment there because of pain with his knee. The plaintiff said that he was in a lot of pain. He could not say why his employment was terminated. He was told that he was no longer required and no additional reason was provided. He denied that, when he stopped working at Capital Weed Control in 2018, he was “perfectly physically capable” of working eight hours a day as a weed sprayer.
He agreed that, as at January 2020, he could walk his dogs twice a day, for up to 45 minutes in the morning and 30 minutes in the afternoon.
It was suggested to him that he was never employed by the first defendant and that he suffered his injury on 30 January 2016 at some other unspecified location. The plaintiff did not accept either of these propositions. It was suggested to him that he did receive cash at times from the first defendant, but this was only in relation to selling scrap. The plaintiff denied this suggestion and said he received cash from the first defendant as wages. It was also suggested to him that he had not telephoned the first defendant on that day and did not drive with Mr Tarzia from the farm at Tarago to the yard in Maryborough Street in Fyshwick. He denied both of these propositions. In relation to the truck the plaintiff drove to Sydney on 16 January 2016, it was put to him that the truck was not owned by the first defendant, his son or Billy Martin Scrap Pty Ltd. The plaintiff insisted that it was not his truck and it was the first defendant’s truck. It was suggested to him that he did not suffer any permanent pain in his left knee and that he could work full-time if in a job that did not require any heavy lifting. The plaintiff disagreed with both of these propositions. He agreed with the proposition that he could walk for eight hours per day but said that he would be in pain. He agreed with the proposition that any difficulty he had with working was also due to difficulties with his left calf, right calf, lower back and feet.
In re-examination the plaintiff said that he did still experience pain from time to time in his feet, calves and back, but that those difficulties alone would not stop him from taking a job. He said that it was the combination of all that pain and his knee pain that prevents him from taking a job today.
The first defendant
The first defendant gave evidence that he had operated a scrapyard at 38 Maryborough Street, Fyshwick in January 2016, having moved out of premises at Yallourn Street, Fyshwick at about Christmas 2015. He described the nature of the business as involving buying and selling scrap cars, fridges, washers and gates. He described the dollar value to him of various items. He said he had been in partnership with his son Matthew for 13 years. He said that he was handing over the business to Matthew. He said that as at January 2016 he was doing “bugger all actually” in the business. He said that he had a stent put in his heart but could not recall when that occurred.
The first defendant said that he had met the plaintiff in jail in 1996. He said that the plaintiff had “bought a truck off … the yard”. He said that in January 2016 the plaintiff had his own truck which was a Mitsubishi tip truck with high sides. He denied that he had ever employed the plaintiff when the business was either at Yallourn Street or Maryborough Street. He also denied having paid money to the plaintiff to work at Yallourn Street or Maryborough Street. He denied that he employed the plaintiff to drive scrap cars anywhere.
The first defendant gave evidence about the vehicles shown in photographs of the Tarago property.
He denied that the plaintiff had ever been at the Tarago property.
He denied that the plaintiff had telephoned him on 30 January 2016. He denied that he had arranged for Mr Tarzia to collect the plaintiff from the farm. He had no recollection of whether or not he was at the yard on that day. He said he had no recollection of seeing the plaintiff in a vehicle with Mr Tarzia. He said he thought that Mr Tarzia rang him and said that the plaintiff had an accident. He did not recall having a conversation with the plaintiff at the yard when Mr Tarzia was in the car with him.
He described the dispute that he and his son Dean Martin had had with the Goulburn Mulwaree Council in 2015 and 2016 about the cars that were being stored at the Tarago property. The Land and Environment Court made directions in the proceedings on 8 July 2016.
The first defendant denied:
(a)that the plaintiff had worked for him as a labourer and truck driver from 11 January 2016 until 30 January 2016;
(b)that the plaintiff had done pickups for him,
(c)that the plaintiff had loaded material onto trucks for him; and
(d)that the plaintiff had taken loads of metal to Fyshwick or had taken scrap metal to GRI or Sims Metal in Hume as an employee of the first defendant.
He agreed that some weeks he had purchased 30 cars from Pickles Auctions but denied that the plaintiff was involved in that.
He denied that the plaintiff had collected a load of material from Queanbeyan for him (as described in Exhibit 8). He denied that he knew Michael Cooper or that Michael Cooper had ever been an employee of his. He denied various other assertions made by the plaintiff in the statement which became Exhibit 8.
The first defendant appeared to say that Mr Newman was not his employee but lived at the yard because his wife had kicked him out. He denied that the plaintiff had worked for him seven days a week. He denied that he had ever paid him cash for working for him. He denied that the plaintiff had worked for him 10 days straight from 7 to 16 January 2016. He denied that the plaintiff had done trips to Sydney for him. He said that the plaintiff might have done those trips with Mr Tarzia or Mr Newman.
He denied that the plaintiff took one of his trucks to Sydney on 16 January 2016 to sell scrap metal. He denied that the plaintiff did a trip to Sydney on 29 January 2016, unless he went with Mr McDonald. He denied that the plaintiff had brought him an envelope with cash from Sell and Parker following his trips to Sydney, and said that cash from Sell and Parker goes into cash accounts. However, he said that he could get envelopes of cash for the scrap that he sold if he asked for it.
He denied that on 29 January 2016 cars were loaded onto two different trucks ready to be delivered by the plaintiff and Mr McDonald to the Tarago property on 30 January.
He denied seeing the plaintiff after 30 January 2016. He suggested that he was in Melbourne.
In cross-examination the first defendant denied that he had been asked to bring business records to court. He only “Very vaguely” recalled having conversations with counsel for the second defendant within the last 24 hours. He could not recall whether in those conversations he had been asked to bring documents to court.
He said that his current source of income was an old age pension. He could not recall when he started on the old age pension but said that he was not on it in January 2016. He thought that his last personal tax return would have been in 2015 or 2016 and that the same accountant that he uses now prepared it. He could not recall his accountant’s name and said that his son Matthew was responsible for all of that.
He said that he had been in partnership with his two sons. He did not know when the partnership was dissolved but said that he was not in the partnership when he went on the pension.
The first defendant said that when he was in the partnership and operating the yard, the scrap business had proper financial records including invoices, bank records, wage records and a wages book. He said that when the business dealt in cash then records were kept.
He agreed that if someone had done something for him, he might have given them $50 or $100 in cash. He said he only very rarely paid out cash that did not go through the books. He denied that there were cash dealings that did not go through the books. He subsequently said that every single item that he sold was accounted for in the books and every single payment that he made was accounted for in the books. He explained that the money that he gave people sometimes was in the nature of money for a drink at the bar or as repayment for petrol.
The first defendant said that there was a comprehensive set of books for the business for the 2015/16 financial year. He said that the payment that he received from the partnership was in the form of occasional dividends.
He said that the accountant kept the records for the 2015/16 financial year. Although he initially said that the bank statements for that year would be at his house or the house of his daughter in Melbourne, he subsequently said that he did not know where they were. He then said that they would be at his home. He said it was possible the wage books would also be there. He said that the registration papers for the vehicles operated by the business would either be at his home, with his son Matthew or at his daughter’s. He said that no one involved in the case had asked him to get those records. He was asked questions about bartering for goods or services and declined to answer some questions related to that.
The first defendant could not recall the name of a single employee from the 2015/16 financial year. He said that in 2016 he was closing down. He said he was not involved in any of the business’ commercial activity as at January 2016, and the business itself engaged in “Very little” commercial activity. He said that the rent at the Maryborough Street premises was $3400 or $4000 rather than the $6000 which it had been at the Yallourn Street premises.
He said that in January 2016 he was carting caravans out of Melbourne and doing “two loads of paper out of Sydney by myself”.
He said that in January 2016 his son Matthew was running the yard. His son Matthew had two apprentice plumbers giving him a hand in the yard and he gave Mr Newman a job. He then agreed that Mr Newman was an employee of the partnership in January 2016. He said that Mr Newman was employed at the yard for about two months. Although his evidence was not very clear, the effect of his evidence was that there was workers compensation insurance to cover Mr Newman’s employment in January 2016.
He denied that Mr McDonald had ever been employed at the yard. He did say that Mr McDonald had been lent money and worked it off. He said that when Mr Newman was working at the yard then his son Matthew would have paid him out of the bank. He said that there should be payslips for those two months and a group certificate issued to Mr Newman. He agreed that the partnership should be able to produce all of those documents. He agreed to produce documents although he argued that many of them were not relevant.
The first defendant said that there were now about 50 or 60 cars on the Tarago property, but in January 2016 there would have been 100 or 120. He said that the cars were owned by “Me and my sons and a couple of other blokes”.
He agreed that he was still a bankrupt. His evidence about the reasons for his bankruptcy and the history of the bankruptcy was unclear. He did agree that he had been bankrupt continuously since 1999. He could not remember the name of the solicitor that acted for him in relation to the bankruptcy, even though the solicitor was in Goulburn and he last had contact with him four to six months ago. He said he kept no paperwork in relation to the bankruptcy.
At the conclusion of his evidence on Friday he was given a notice to produce certain documents and directed to produce those documents by the following Monday.
On the Monday he had failed to produce any documents. Exhibit 32 contains his reasons for failing to comply with the court’s direction. It is clear there was limited time for searches to be made and he was recovering from surgery which had occurred on the previous Wednesday. However, whether or not documentation existed, and if so, where it would be located, remained uncertain. He had failed to make any enquiries of his son Matthew, who was now running the business, as to where any records might be. Similarly, although he said that he thought most of the records were with his daughter in Melbourne, he did not speak to his daughter to check what, if any, records she had. He also said he had tried to ring the solicitor in Goulburn that morning even though he could not remember the name of the solicitor.
He said he thought he had a heart attack in mid-January 2016 and had a stent put in his heart. Later, he said he thought it could have been February 2016.
He maintained his evidence that he did not have any documentation relating to his bankruptcy at his house.
The first defendant was asked questions about his interactions with an investigator retained by the second defendant. He was asked about the allegations that he had made to the investigator about the plaintiff.
He was then asked about a conviction that he had for possessing stolen goods, the offence date for which was 26 March 2016. He subsequently agreed that he had the stent put in his heart after the date of that offence. This removed the heart surgery as a possible reason why he was not at the Fyshwick premises at the time of the accident.
He was asked about what contribution his son, Mr Dean Martin, made to the business and the 2015/16 financial year. He initially said that Mr Dean Martin had been in the picture for a long time, but then said that Mr Dean Martin did not come into the yard because he stayed at the Tarago property. He later said that Mr Dean Martin did contribute in the yard in the 2015/16 financial year, but that it was very rare.
He was asked about information in the report of the investigator which became Exhibit 30. He agreed that he had never prepared a written statement in relation to the subject matter of the proceedings. He said “I would have rang [a named barrister] and he would have advised me not to write those statements … I don’t write-I don’t write statements ever.”
His answers about who the registered proprietor of the Tarago property was were obscure. He appeared to reluctantly accept the proposition that he was the sole registered proprietor of that property, but the effect of his evidence was that the ownership was in fact more complicated.
The first defendant’s attitude to the claim by the plaintiff was: “This is a blackmail on me because I might have a few quid for them to get and tell lies about. That’s what it’s all about.”
Dean Martin
Mr Dean Martin, one of the first defendant’s sons, lives at the farm at Tarago. He has a medical condition which he said meant that he was often reluctant to leave the farm. He has been living at the farm the last 10 years. He said that in January 2016 he would leave the farm irregularly or rarely and that his father brought him shopping. Sometimes he would shop at the IGA supermarkets in Goulburn or Bungendore.
He said that in 2016 he and the first defendant were, and had been for several years, in a dispute with the Goulburn Mulwaree Council because of the vehicles and machinery kept at the Tarago property. He said court proceedings in the Land and Environment Court “kicked off” in 2016 and that he and his father proved that they had not run a business from the property or permitted others to dump material there. The dispute with the council started in 2009 but only went to court in 2016.
He said that if a truck drove onto the property, he would hear it because of the location of the driveway in relation to the house. He said that the four maremma dogs, which he had in January 2016, would have barked if someone drove onto the property. He said that there was nowhere else that he would have been on 30 January 2016, the day of the accident.
He said that he could not recall whether he had ever seen the plaintiff at the property. He said the plaintiff may have been there before with his father, but he said that the plaintiff was not telling the truth.
Mr Dean Martin said that Mr McDonald had cancer and a drug addiction and that on occasion he or members of his family helped Mr McDonald out. He denied that Mr McDonald had been at the farm with the plaintiff and said that he only been out there with his father (the first defendant).
He said that he did not like people coming to the property. He agreed he had met Mr Tarzia, who he described as a “hanger on”. He had only seen Mr Tarzia at the farm sometime before 2016 and Mr Tarzia came with his father and Mr Tarzia’s father.
He said that there was a car crusher which was used to clean up the property towards the end of 2016.
In cross‑examination he said that there were now only a couple of hundred cars on the property, but in 2016 there would have been a couple of thousand.
He agreed that he left the property to purchase groceries and to receive medical treatment. He agreed that he had to leave the house on some occasions to deal with his dispute with the council. He said he would leave to go to meetings with the council possibly once every six months, and for three or four days for a Land and Environment Court hearing in Sydney.
He indicated that the amount of stuff kept at the property was a point of contention between him and his father, who he described as “essentially a hoarder”. He said that cars brought on trucks to the property would be unloaded using a forklift and that there were three forklifts at the site. He said that both he and his father were licensed to drive forklifts.
He was adamant that he was on the property on 30 January 2016 and that the plaintiff was never there.
During his evidence Mr Dean Martin made clear his view that he considered that the plaintiff was a liar. He was clearly upset at what he perceived to be the plaintiff’s attack on, or attempt to obtain money from, his father. During the course of his evidence he said of the plaintiff: “He’s a liar. He is a liar. He is Donovan and I don’t even know the gentleman’s last name. But the fellow who is putting my family through this is a liar.”
Assessment of the lay witnesses
There was a stark contrast between the evidence of the plaintiff and the evidence of the first defendant. The plaintiff said he was employed by the first defendant. The first defendant denied any employment relationship. The plaintiff said that he was injured at the first defendant’s farm and the first defendant denied that he had ever instructed the plaintiff to make the delivery to the farm. The plaintiff said that after the accident he phoned the first defendant and attended the first defendant’s premises with Mr Tarzia. The first defendant denied this.
The plaintiff’s evidence was corroborated by his sister, Ms Verheul, and Mr Newman. The first defendant’s denial was corroborated to some extent by the evidence of his son, Mr Dean Martin.
Because of the extent to which the outcome of this case depends upon the respective challenges to the evidence of the plaintiff and the first defendant, it is necessary to address the contentions of the parties as to the reliability of the evidence of the plaintiff and the first defendant.
The credibility of the plaintiff
The second defendant submitted that the evidence of the plaintiff was unreliable. That submission was based upon a number of matters.
The second defendant submitted that the plaintiff’s report about the height of the truck to medical staff at Calvary Hospital was significant. The plaintiff had reported that the truck was 1.8 m off the ground and that he fell 2 m. The evidence that he gave in court was that the tray of the truck was somewhat more than 1 m of the ground. The second defendant submitted that the plaintiff “grossly exaggerated” the height of the truck to medical practitioners. Given that it is uncontroversial that the plaintiff suffered the injuries that he did, it is not clear why the plaintiff would exaggerate the height of the truck. While the records are anomalous, I do not consider that great weight can be placed upon the inaccuracy if, having regard to the questions that the plaintiff was asked in hospital, it was an inaccuracy.
The second defendant says that it is significant that Mr McDonald did not take the plaintiff to hospital. It is true that if an accident occurred as the plaintiff alleged, then it would be logical to think that Mr McDonald would have taken the plaintiff to hospital if an ambulance was not called. However, the plaintiff did give evidence that he was unable to sit in the seat of the truck because of the state of his knee and the inability to adjust the position of the seat. It is not an implausible proposition that he would have rung his employer and acquiesced in any arrangements that the employer made in order to have him transported.
The second defendant then said that it was anomalous that the plaintiff chose to go to Calvary Hospital rather than Queanbeyan Hospital or Canberra Hospital. The plaintiff provided an explanation that he went there because his partner at the time said he should go there as it was closer to her house. That explanation seems plausible and, in light of the other evidence that he did visit the first defendant’s yard in Fyshwick, consistent with his claim. I did not consider the time taken from the accident at approximately 10:30am until the admission to Calvary Hospital at approximately 1:42pm to be inconsistent with the chronology of events as described by the plaintiff.
The second defendant placed considerable emphasis on the unreliability of the plaintiff’s tax records in the financial years ending 2015, 2016 and 2017. Those tax records were prepared and lodged in 2018 following the commencement of the claim. They identified taxable income significantly higher than would be realistic. However, they did so in a manner which was internally inconsistent to the point of being obviously wrong. The effect of the net errors was to increase the plaintiff’s liability for tax in the relevant years. In addition to erroneously high figures for income, there was included in the 2017 return a statement that he had received $18,052 from the second defendant when the correct figure was $2160. The probabilities favour incompetence rather than dishonesty. The plaintiff’s evidence was that the documents were prepared by his accountant based upon information that he had given to the accountant. Notwithstanding that he had signed relevant documents including statutory declarations, he did not purport to understand their significance. I am satisfied that the documents are unreliable and do not accurately reflect his earnings in the years 2015, 2016 and 2017. I am not satisfied that they were prepared for the purpose of dishonestly increasing the quantum of his damages in the present proceedings.
Another submission the second defendant made that it said went to the plaintiff’s credibility was that the plaintiff did not advise Dr Bodel when he saw him on 17 October 2018 that he was starting work with Capital Weed Control the next week. That is employment which appears to have run for eight to 10 weeks prior to the plaintiff’s termination. The nondisclosure of the work in the circumstances is consistent with a desire to maximise the impression of incapacity given to the doctor. However, it is not clear whether Dr Bodel specifically asked him a question which would have required disclosure of that upcoming employment. Furthermore, the plaintiff’s period of employment with Capital Weed Control was disclosed to expert assessors who examined the plaintiff subsequently, being Dr Peter Dodd, Dr Robert Pryor and Ms Gillian Stewart. I am not satisfied that the absence of disclosure to Dr Bodel significantly affects my assessment of the reliability of the plaintiff’s evidence.
Soon after making a claim upon the DIF, the plaintiff gave a very detailed statement to an investigator who (I assume) was reporting to the second defendant. It became Exhibit 8. That statement was remarkably detailed. It included a detailed explanation of his employment relationship with the first defendant and of specific activities which he had undertaken during the course of that employment. It included the identification of witnesses and their addresses or phone numbers. It included statements by the plaintiff as to whether or not the persons would support his version of events and, if he thought they would not, an explanation as to why not based upon their relationship with the first defendant. The statement also included a detailed description of the accident which was consistent with the evidence given by the plaintiff in court. There can be no doubt that the second defendant, with the benefit of this statement, had every opportunity to check the accuracy of the statement, contact witnesses and obtain any evidence to contradict the plaintiff’s version of events. As it turned out, the only lay witnesses that were called by the second defendant were the first defendant and Mr Dean Martin. That evidence was insufficient to demonstrate that the evidence given in the plaintiff’s case was not accurate.
Overall, the plaintiff was a reasonably credible witness. For the reasons that I have given, I do not accept that the second defendant’s attacks on the reliability of his evidence were successful. However, I was not confident that the plaintiff was not overplaying his reading disability or the limitations on his cognitive abilities in the witness box. I therefore treated his evidence with some caution and looked to see whether his evidence was challenged and, where challenged, whether it was corroborated.
The credibility of the first defendant
The first defendant is an undischarged bankrupt. He was bankrupted upon the petition of the Deputy Commissioner of Taxation. That occurred in 1999. He appears to have remained bankrupt since then by reason of his failure to file a Statement of Affairs.
The first defendant admitted that Mr Newman was employed at the yard in January 2016. The first defendant said that there was workers compensation insurance in place. The plaintiff submitted that the falsity of this claim was made clear by the involvement of the second defendant in the claim. Had there been workers compensation insurance in place, then the first defendant would have been represented by that insurer and there would have been no need for the second defendant to be involved in the case. I accept this submission and find that the first defendant’s evidence was, in this respect, unreliable.
The plaintiff also made a number of submissions directed to the inadequacies of answers given by the first defendant. I accept the submission that the first defendant was defensive and evasive over production of his records and that his unwillingness to name his own accountant or the solicitor acting for him in relation to the bankruptcy did not reflect well on his credibility.
The first defendant’s evidence to the effect that his business transactions were properly documented did not appear to be reliable. His response to the direction to produce particular documents did not reflect what one would expect in the circumstances, had his business transactions in fact been properly documented. Recognising that he did have some difficulties arising from recent medical treatment, the fact that he made no search for documents at his house and no enquiries of his daughter or one of his sons who might have had the documents was consistent with his evidence about documentation being unreliable.
His approach to the proceedings overall appeared to be inconsistent with what one would have expected from an honest businessman who was uninsured at a relevant time. Given the role of the second defendant, it would be reasonable to expect that he would have cooperated to the fullest extent possible with the default insurer in order to defeat a claim which he said was a false one. Yet, the evidence disclosed an absence of cooperation and an approach consistent with someone who was very reluctant to have his business affairs scrutinised.
The first defendant was very prepared to make extremely serious allegations against the plaintiff which were not established by the plaintiff’s criminal record or otherwise. Those allegations will not be repeated in these reasons, but the willingness of the first defendant to make them did not reflect well on the care that he took in relation to the evidence that he gave.
The manner in which he gave evidence did not reflect well on his credibility. He was argumentative. Many of his answers were non-responsive. He refused to answer questions on some topics. He would often, in a purported answer to a question, ask a question back. He made allegations which were irrelevant to the matter about which he was being asked. He demonstrated a willingness to tailor his evidence in a way that would advance what he perceived to be his interests in the proceedings. The approach that he took to the second defendant’s investigator was to suggest that he would cooperate, but he never actually did anything useful to assist the second defendant in relation to the issues arising from the plaintiff’s claim. The impression that he gave during the course of his evidence was entirely consistent with somebody who would employ the plaintiff for cash, based on a handshake, with no documentation, without regard to any minimum wage and with no withholding of tax.
The first defendant was clearly hostile to the plaintiff, believing him to be making a dishonest claim against him. However, it is not clear whether that hostility was motivated by fear of the consequences of a successful claim or because there was truth in that belief. I therefore treated any evidence given by the first defendant with considerable caution, and would only rely upon it if it was otherwise corroborated.
Was the plaintiff employed by the first defendant?
As to the employment relationship between the plaintiff and the first defendant and whether or not any accident occurred at the farm at Tarago, I accept the evidence of the plaintiff on the balance of probabilities. That is for the following reasons:
(a)I considered the plaintiff’s evidence generally to be more reliable than that of the first defendant.
(b)The plaintiff’s evidence was corroborated by Mr Newman. Mr Newman gave evidence that he was employed for $500 cash per week, paid from the first defendant’s pocket and without any other documentation. That lent support to the proposition that the first defendant did employ people on that basis.
(c)The existence of a work‑related delivery to the farm was corroborated by Mr Newman, who described preparation for the trip, the departure on the trip and the reappearance of the plaintiff and Mr Tarzia after the accident.
(d)The contemporaneous medical records are consistent with the injury having occurred on the day alleged as a result of a fall from a truck and there was no evidence of how or where the accident occurred if it did not occur as alleged.
(e)The evidence of Ms Verheul as to the interaction between the plaintiff and the first defendant after the plaintiff’s discharge from hospital was consistent with the plaintiff’s version of events and inconsistent with the accident being unrelated to the plaintiff’s employment with the first defendant. I do not accept the suggestion made by counsel for the second defendant that the first defendant’s conduct could be explained by reference to his generosity towards a relative, unrelated to any employment relationship.
(f)The evidence of Mr Dean Martin was not so clear as to preclude the presence of the plaintiff at the farm on that day. While he was adamant that the plaintiff was never there, Mr Dean Martin had no particular recollection of that day and appeared to be reaching the conclusion based upon his assessment of his circumstances at the time. I considered that his evidence, like that of the first defendant, was influenced by his perception that the plaintiff was trying to unjustly extract money from his family.
I therefore find on the balance of probabilities that the plaintiff was employed by the first defendant in the first defendant’s scrap metal business in the period from 11 January to 30 January 2016. He was an employee of the first defendant on 30 January 2016 when he was injured. The plaintiff was paid $100 per day. He was paid in cash. That was paid weekly.
Was Mr McDonald employed by the first defendant?
I accept the evidence of the plaintiff and of Mr Newman that Mr McDonald was employed by the first defendant at the time of the accident.
Did the accident occur as alleged?
I accept the plaintiff’s evidence in preference to the first defendant’s evidence. I am not satisfied that Mr Dean Martin’s evidence should be accepted to the extent that it would preclude the plaintiff’s evidence as to what happened and where it happened. I therefore accept the plaintiff’s evidence that the accident occurred at the first defendant’s farm as a result of being struck by the Hiab crane.
State or Territory of connection
Section 182D of the WC Act provides that the substantive law of the Territory or State of connection governs whether or not a damages claim may be made in relation to a work‑related injury to a worker and, if such a claim can be made, the determination of that claim. “Territory or State of connection” is determined in accordance with s 36B of the WC Act. For the purposes of s 36B(3)(a), the plaintiff usually worked in both the ACT and NSW. Therefore, it is necessary to move to s 36B(3)(b), which provides that the Territory or State of connection is “the Territory or State where the worker is usually based for the purposes of the employment”. In this case that was clearly the Fyshwick yard within the Territory. That means that the Territory or State of connection is the ACT and it is not necessary to go on and consider s 36B(3)(c). As a consequence, s 182D requires that the common law claim is to be determined in accordance with the law of the ACT.
Was the first defendant negligent?
Mr McDonald was performing duties which were a necessary part of the task that he was instructed to perform in the course of his employment by the first defendant. The first defendant is therefore vicariously liable for any negligence of Mr McDonald.
The movement of the arm of the Hiab crane caused the plaintiff to fall from the truck and be injured. There was no evidence as to how Mr McDonald had manipulated the controls of the crane. The alternatives in relation to the movement of the arm of the crane that knocked the plaintiff from the truck appear to be that:
(a)Mr McDonald accidently directed the arm of the crane to swing in a manner which caused the plaintiff’s fall;
(b)Mr McDonald intentionally directed the arm of the crane to swing in a manner which caused the plaintiff’s fall; or
(c)as a result of a malfunction of the crane, it did not follow the controls given to it by the operator.
There is no evidence that would be consistent with Mr McDonald intentionally causing the arm to move as it did. In particular, there is no evidence of any animus between the two men which would be consistent with this scenario.
There is no evidence that the crane malfunctioned so as to move as it did. While this is a possibility, it is likely that there would have been some statement made at the time by Mr McDonald in relation to that issue.
It is much more likely that the unpredictable movement of the crane was as a result of error on the part of the operator by reason of inexperience or otherwise. It is easy to imagine how the controls might have been manipulated so as to cause an inappropriate movement and how, given the position of the plaintiff on the truck, such an unexpected movement may have caused him to fall.
I am satisfied that the risk of a person on the back of the truck falling as a result of incorrect movement of the boom of the crane was foreseeable and that the risk was not insignificant: Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) s 43(1). Having regard to the matters in s 43(2) of the CLW Act, I am also satisfied that a reasonable person manipulating the crane would have ensured that:
(a)the crane was only moved in a predictable manner; and
(b)if he was uncertain as to how the crane was controlled, he gained familiarity with its movements before the plaintiff was put in a position where he was at risk from any unexpected or unintended movements.
I am satisfied that Mr McDonald did not take those precautions. I am satisfied that in failing to take them he was negligent.
The first defendant is vicariously liable for the negligence of his employee, Mr McDonald. In those circumstances, it is not necessary to address the alternative basis for liability, based on ss 33, 34 and 35 of the Work Health and Safety Regulation 2011 (ACT), which was not the subject of any submissions.
Medical evidence
Dr James Bodel
The plaintiff relied upon the evidence of Dr Bodel, an orthopaedic surgeon. He saw the plaintiff in October 2018. He diagnosed a “comminuted fracture of the left patella and the aggravation of the long-standing back complaint including Scheuermann’s disease in the thoracolumbar region and the disc pathology at the lumbosacral junction”. He said that the plaintiff “has a very guarded long term prognosis”. He observed that the plaintiff had a very limited skill set and would have great difficulty returning to the workforce.
In relation to the possibility of a future knee replacement, Dr Bodel said: “In the longer term he may well need an arthroscopy and/or a knee replacement in the left knee, although at this stage it would be too early to consider that.” He identified the cost of an arthroscopy as being $8,000 to $10,000 and the cost of a total knee replacement as $35,000 to $40,000. He said that the plaintiff needed a referral to a rehabilitation facility to see what could be done in relation to work capacity. He said that the plaintiff would not be able to climb in and out of trucks because of his knee injury and would not be able to engage in driving activities or labouring activities because of his ongoing back and knee pain.
Dr Peter Dodd
The second defendant relied upon the evidence of Dr Dodd, an orthopaedic surgeon. His report was dated 4 September 2019, almost a year after Dr Bodel’s. He reported that the plaintiff’s present complaints were with his knee only. There were no complaints in relation to his neck or lower back. Although the lower back does get pain from time to time, it was reported by the plaintiff to be no worse than it was prior to his injury. The diagnosis was “comminuted fracture of the left patella with some degree of malunion”. This was caused by the accident. He considered that the condition had stabilised.
He considered that the plaintiff was incapacitated for work as a truck driver. The inability to flex his knee past 90° would make it difficult for him to drive his truck and get in or out of the truck. For that reason, Dr Dodd considered that the plaintiff was “almost totally incapacitated as a truck driver and labourer” and “He would find it extremely difficult bending, lifting, twisting, squatting, kneeling and working on uneven ground.” He therefore considered that the plaintiff was permanently incapacitated to work as a truck driver and labourer. He said “The only positions he could work in would be sedentary and he has no training for this.”
Dr Dodd suggested a trial of physiotherapy, hydrotherapy and a gym program. He said that the plaintiff may well need a total knee replacement and agreed with Dr Bodel’s costing. He said that the prognosis for a return to work “is not great”.
Assessment of medical evidence
The evidence of Dr Bodel and Dr Dodd was consistent. Both doctors considered the plaintiff to have a significant incapacity for work.
Vocational capacity evidence
Craig Martin
The plaintiff relied upon a report prepared by Mr Craig Martin, who is identified as a “vocational capacity assessor”. Mr Craig Martin prepared his report in November 2019 based upon a consultation with the plaintiff and the report of Dr Bodel in 2018. The report identified the plaintiff’s reported symptoms and his reported physical abilities. It then examined his employment history and documentation relating to his condition and past earnings. He administered a number of questionnaires relating to the extent of his disabilities. Based on this, Mr Craig Martin identified the plaintiff’s functional restrictions, what might be suitable employment and the barriers that might exist to gaining employment in the open market. As a consequence of this he concluded that “[The plaintiff] has in practical terms been unemployable on the open labour market since he last worked in subsidised employment in December 2018 because of his injuries”. He said:
[The plaintiff’s] capacity to earn on the open labour market will continue to be severely diminished as a result of the subject injury.
The physical restrictions and disabilities arising from his injuries will continue to cause difficulties for him in employment.
[The plaintiff] is likely to be unable to sustain any form of employment of a physical nature in an unrestricted manner because of his injuries.
He will most probably have negligible to no earning capacity/potential on the open labour market in the foreseeable future.
In cross‑examination Mr Craig Martin accepted that if the fact was that the plaintiff had worked for between three to six months as a weed sprayer, eight hours a day, 35 hours a week, “and did not have any issues in relation to his back or knee in undertaking that employment”, that would alter or change the conclusions in his report. He agreed that he had not undertaken a physical assessment and based his report upon what he had been told by the plaintiff.
Dr Robert Pryor and Gillian Stewart
The second defendant relied upon the report of Dr Pryor, a psychologist, and a functional assessment report by Ms Stewart, a physiotherapist. Dr Pryor administered some psychometric tests. He recorded that the plaintiff demonstrated little difficulty in reading any of the material presented to him. He identified that the plaintiff had general reasoning in the below average range (18th percentile). This indicated that he had a cognitive profile similar to those who successfully complete non-academically demanding trade certificate level courses. He recorded mild or moderately severe depression, anxiety and stress. Dr Pryor said that the plaintiff has “knowledge, skills and abilities in areas such as car and motorcycle repairs, construction, landscaping, plant operating, outdoor sports, mining, plumbing, childcare and fruit picking”. That assessment was made from a psychological perspective based upon the plaintiff’s self‑reported physical limitations. Dr Pryor did not evaluate those limitations.
Ms Stewart recorded the plaintiff’s history and current symptoms. She undertook a quite detailed physical assessment of the plaintiff. She identified physical work abilities and restrictions. She said that her functional capacity evaluation revealed that the plaintiff has the physical capacity to perform “sedentary, light and selected medium level work with limited tasks at low levels and above shoulder height”. She said that he was not suited to return to truck driving in an unrestricted sense but was suited to selected truck driving roles. She said that he was suited to forklift operating and to selected store person roles. She identified a range of occupations which matched the description of light and selected medium level classifications as: product examiner, motor vehicle parts interpreter, caravan park and camping ground manager, and selected rental salesperson, materials recycler and caretaker roles. She said that in a physically suitable occupation he is capable of full-time work. She disagreed with the reported physical limitations referred to in Mr Craig Martin’s report, saying that her assessment demonstrated that he had abilities in certain identified areas. She therefore thought that Mr Craig Martin’s conclusions were “overly pessimistic”.
Dr Pryor and Ms Stewart also prepared what is referred to as a “Job Match Report”. That identified award rates for the types of work identified as being possible forms of employment in Ms Stewart’s report. I limited this report to the opinion on physical capacity of Ms Stewart, as the basis for Dr Pryor’s expression of opinion was not properly articulated in his report and the cross‑examination of Dr Pryor demonstrated that he had no direct experience of what was involved in most of these occupations. Where Ms Stewart identified selected roles in a particular job category, this indicated that there were physical limitations which would affect whether or not the plaintiff could perform in that role. There was no evidence as to the availability of work in the roles identified or any assessment of the likely prospects of the plaintiff in obtaining work in the roles identified in the open labour market. Both of these matters were beyond the scope of Ms Stewart’s report and outside her expertise.
Assessment of vocational capacity evidence
I accept Ms Stewart’s physical assessment was more thorough than the assessment undertaken by Mr Craig Martin, which was only based upon self-reported statements of ability or disability. I do not accept that the plaintiff is effectively unemployable as stated by Mr Craig Martin, but I do accept that there will be very significant barriers to him obtaining employment. Many of the factors identified by Mr Craig Martin as being barriers to employment will remain even if his physical restrictions are those as outlined in Ms Stewart’s report. So far as any employer of any size is concerned, it is likely that the plaintiff will be a relatively unattractive candidate for employment. The addition of a significant disability in his knee shifts him from a category where he might have obtained employment as a truck driver to a category where only a very limited range of employment is available and where persons without such a history of injury will be significantly more attractive to an employer.
General damages
The plaintiff was 50 years old at the date of injury. He suffered a very nasty fracture to his patella which required surgery. He suffered an aggravation of his pre‑existing back condition which continued up until sometime in the first half of 2019, by which time his back pain had reduced to pre-accident levels. He currently finds it extremely difficult to bend, lift, twist, squat and kneel or work on uneven ground. His knee is stiff until it is warmed up and causes him pain when bending or walking. He is incapacitated for work as a truck driver or as a labourer. There is a significant prospect that he may require either an arthroscopy on his knee or a total knee replacement.
I was referred to the awards of general damages made in Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81, Lewis v Woolworths Ltd [2018] ACTSC 200; Aust Tort Reports 82-407, Pidcock v Milosis [2019] ACTSC 209 and Ryrie v Tanner (No 2) [2020] ACTSC 104; 92 MVR 27.
In my view, the plaintiff is entitled to an award of general damages of $140,000 with 50% attributable to the past. This gives interest on past general damages of $6300 (4.5 years × 2% × $70,000).
Economic loss
There was no specific evidence led from the plaintiff that he would, if uninjured, have intended to work until the age of 67 or 70. The plaintiff therefore relies upon an inference that he would have worked until pension age by reason of economic necessity.
There was no evidence led as to the likely progress of his Scheuermann’s disease. No submission by the second defendant was directed to the proposition that the plaintiff would, by reason of unrelated disabilities, not work until retirement age. There was no detailed exploration of the periods during which he had been on a disability pension so as to create a foundation for a submission that there was a significant prospect of him ceasing paid employment and relying upon a disability pension or other government benefits prior to becoming eligible for the age pension. It is therefore appropriate to assess his economic loss up until the age of 67.
In the four financial years ending 2011, 2012, 2013 and 2014 the plaintiff had what appears to be consistent employment as a truck driver. In that period his average net weekly earnings were approximately $795.
As pointed out earlier, the tax returns for the financial years ending 2015, 2016 and 2017 were unreliable. The plaintiff’s driver logbook for the period 17 June 2015 through to 7 January 2016 shows that in the six-month period from 17 June 2016 to 16 December 2016 the plaintiff drove a truck an average of between 12-14 hours per week (depending upon whether intra-journey breaks are included as driving time). His evidence, which was ultimately not contradicted, was that he was driving a truck for an unidentified Melbourne owner who had a contractual relationship with the Toll road transport business and that he was paid a flat rate of $22.50 per hour to drive the truck. So far as the evidence disclosed, this was an arrangement which was not properly documented. Superannuation was not paid and PAYG tax not deducted. It is not clear that the driving hours recorded in the driver logbook corresponded to the hours for which the plaintiff was entitled to be paid. However, if that was the case, then the plaintiff’s earnings in this period would have been on average $270-$315 per week with no amount withheld as PAYG tax and no additional amount paid as superannuation. This is very clearly inconsistent with the evidence of the plaintiff that he earned between $800 and $1000 per week doing this work. I prefer the detailed evidence recorded in the driver logbook to the general oral evidence given by the plaintiff.
However, taken as a whole, this evidence demonstrates in my view that the plaintiff had a significant working capacity prior to the accident.
I accept the evidence of Ms Stewart based on her assessment of the plaintiff’s physical capacity. This demonstrates that he has the capacity to perform sedentary, light or selected medium level jobs. I accept her opinion that the report of Mr Craig Martin is likely to be too pessimistic as it is not based on a physical assessment of the plaintiff’s actual capacity. Dr Pryor’s report is consistent with the plaintiff having the psychological capacity to perform such jobs consistent with the type of jobs that he has performed in the past. I read Dr Pryor’s report with some caution given his focus on what he described as “positive psychology”. Neither Ms Stewart nor Dr Pryor’s report addressed the real‑world likelihood of the plaintiff being able to obtain the sort of work that they described having regard to his age, workers compensation history, criminal record, limitations on physical capacity and history of dyslexia.
As at the time of the assessment by Ms Stewart, the plaintiff reported that he was applying for jobs as a forklift operator truck driver or concrete truck driver. While these jobs may appear to be rather ambitious having regard to the medical evidence, it is consistent with the plaintiff seeking to obtain employment to the extent that he can. I consider that he does have some residual working capacity but the roles in which that might be deployed are limited having regard to his physical limitations and his reading, writing and technology skills. He is also likely to face hurdles in obtaining employment as a result of his age, criminal record and workers compensation claim history.
So far as the past is concerned, at the time of the accident the plaintiff was prepared to deploy his labour at the rate of $100 per day, earning between $500-$700 a week in the employment of the first defendant. Prior to that he had been deploying his labour as a truck driver for a six-month period at a rate of $22.50 per hour, earning on average $270-$315 per week or possibly somewhat more if he was paid for periods before and after the completion of his driving tasks. His driving time was on average 12‑14 hours per week and on average he worked on between two and three days per week. This history provides an indication that the plaintiff would not necessarily deploy his earning capacity so as to maximise his income. That must be taken into account in determining what would have been the plaintiff’s earnings had he not been injured.
The assessment of his weekly loss of earnings must take into account the uncertainty as to how he would have deployed his earning capacity if uninjured as well as the possibility that, notwithstanding his disabilities as a result of the accident, he may obtain employment in the period up until retirement age.
In relation to the past, his loss of earnings equates to $500 per week. This is the amount that he was prepared to sell his labour to the first defendant for. It is somewhat more than what he had been earning as a part-time truck driver prior to that. On this basis, his past loss of earnings would have been $117,000 (4.5 years at $500 per week). The plaintiff identified in his Schedule of Damages that the amount he in fact earned in that period was $21,188. That amount must be deducted. This gives a figure of $95,812. Interest at the CPR rates gives interest on this amount of $11,898.
So far as the future is concerned, the plaintiff’s earning capacity is reflected in his earnings in the years 2011 to 2014. However, as pointed out in relation to past earning capacity, in the period from mid-2015 until the accident the plaintiff had not fully exploited his earning capacity, being content with part-time truck driving work and then cash‑in‑hand employment with the first defendant. There was no exploration in cross‑examination as to why this change occurred. That period reflects an actual exploitation of his earning capacity of approximately $500 per week. The issue in relation to the future is the extent to which the plaintiff would have chosen to fully exploit his earning capacity in the period until he became entitled to the pension. So far as the evidence discloses, the plaintiff has no partner or current dependants. Similarly, the evidence that he lived in a caravan was inconsistent with him having a mortgage to pay. There was evidence led in chief (and unexplored in cross‑examination) that excessive alcohol consumption has been a problem and is still a challenge for the plaintiff in his life. These factors, along with his pre-existing medical conditions, indicate that in evaluating the hypothetical future of the plaintiff in an uninjured state he was unlikely to have fully exploited the earning capacity demonstrated between 2011 and 2014. Further, I consider that it is likely that, in one form or another, the plaintiff will be able to exploit his residual working capacity. However, that is very significantly limited by his physical restrictions and his relative unattractiveness as an employee on the open market when compared with employees without his age, physical limitations, workers compensation claim history or criminal record. Taking these factors into account, I consider that an award based upon a loss of earnings of $450 net per week is appropriate. Having regard to the manner in which I have taken into account the various uncertainties, a further discount for vicissitudes of only 5% is warranted.
This gives a future wage loss of $237,240 ($450 net for 12 years (multiplier 527.2) - 5%). So far as future loss of superannuation is concerned, having regard to the plaintiff’s history as either an employee or independent contractor, it is appropriate to allow for loss of superannuation on the basis that he would have spent 50% of the period until age 67 working as an employee and hence entitled to superannuation. Therefore, an award of $13,641 (50% x 11.5% x $237,240 (rounded to the nearest dollar)) will be made.
Out-of-pocket expenses
Past out‑of‑pocket expenses were agreed at $2474 (rounded to the nearest dollar). These were all paid by Medicare and hence no interest will be awarded.
So far as the future is concerned, Dr Bodel’s evidence as to the cost of either arthroscopy or knee replacement was evidence with which Dr Dodd agreed. The likelihood of the plaintiff requiring either an arthroscopy or a knee replacement was not identified with precision. If a knee replacement was to occur, it is likely to be delayed for as long as possible so as to avoid the need for revision surgery. In those circumstances I consider that the various possibilities are appropriately accounted for by awarding an amount based upon a 50% chance of a total knee replacement deferred for 10 years. That gives an amount of approximately $15,000. I will allow a buffer for the costs of general practitioners, physiotherapy, radiology and medication of $10,000. This was not the subject of specific evidence, but I accept that his condition is likely to involve additional expenses over the years.
Summary
The damages to be awarded are summarised in the following table:
General damages
$140,000
Interest on general damages
$6300
Past economic loss
$95,812
Interest on past economic loss
$11,898
Future wage loss
$237,240
Future superannuation loss
$13,641
Past out‑of‑pocket expenses
$2,474
Interest on past out‑of‑pocket
$0
Future out‑of‑pocket expenses
$25,000
Total
$532,365.00
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff against the first defendant in the sum of $532,365.
2. The first defendant is to pay the plaintiff’s costs of the proceedings.
3. Order 2 does not take effect for a period of seven days and if, within that time, any party notifies my associate by email (copied to each other party) that it wishes to be further heard in relation to costs, the order does not take effect until further order of the court.
| I certify that the preceding one hundred and eighty-seven [187] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 26 August 2020 |
2
4
5