Hepworth v Miller Bulk Haulage Pty Ltd

[2004] NSWSC 324

CITATION:	Hepworth v Miller Bulk Haulage Pty Ltd [2004] NSWSC 324
HEARING DATE(S):	22/03/04 - 30/03/04
JUDGMENT DATE:	23 April 2004
JUDGMENT OF:	Shaw J at 1
DECISION:	1) Verdict and judgment in favour of the Plaintiff in the sum of $864,155;; 2) Exhibits to be retained by the Court until 5 August 2004 at which time they may be returned unless an appeal has been filed in the Court of Appeal;; 3) The Defendant to pay the Plaintiff's costs and such costs are to be paid on an indemnity basis from 15 May 2003 and on a part/party basis before that time;; 4) That the Defendant have a credit in the sum of $370,589 for payments made pursuant to the Workers Compensation Act 1987.
CATCHWORDS:	Negligence - Employer's Liability - Workplace Safety
LEGISLATION CITED:	Motor Accidents Act 1988 (NSW), Part 6, ss 151E, 151E(2); Workers Compensation Act 1987 (NSW), ss 39, 39(1A)(d), 39(2), 79
CASES CITED:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321; Fox v Wood (1981) 148 CLR 438; Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18; Judd v Portland District Hospital (unreported) Supreme Court of Victoria, Court of Appeal, August 1995; Kondis v State Transport (1984) 154 CLR 672; March v Stramare (1991) 171 CLR 506; Miletic v Capital Territory Health Commission (1995) 69 ALJR 675; Polycarpou v Australian Wire Industries Industries Pty Limited (1995) 36 NSWLR 49; Shirt v Wyong Shire Council (1980) 146 CLR 40; Wilsons & Clyde Coal Company v English [1983] AC 57
PARTIES :	Gregory John Hepworth (Plaintff) Miller Bulk Haulage Pty Limited (Defendant)
FILE NUMBER(S):	SC 20411/2000
COUNSEL:	P Menzies QC with P Beale (Plaintiff) DJ Russell SC with W Chipchase (Defendant)
SOLICITORS:	Andrew Fegent & Co (Plaintiff) Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

23 April 2004

20411 of 2000


Gregory John Hepworth (Plaintiff)

v

Miller Bulk Haulage Pty Limited (Defendant)

JUDGMENT

1 Shaw J: The plaintiff (Gregory John Hepworth) sues his former employer the defendant (Miller Bulk Haulage Pty Limited) for negligence.

Facts

2 The circumstances out of which the claim arises are that on 16 September 1993 the plaintiff, being employed as a casual truck driver for the defendant, was driving a truck which rolled over on the Princes Highway near the Bulli Pass at the intersection of Lawrence Hargrave Drive. As a result, the plaintiff was injured. The truck being driven at the time of the accident was a 42 tonne tipper truck with a full load of coke. It was a Kenworth Aerodyne truck, one of 12 vehicles run by the defendant at the time. The accident occurred whilst the truck was negotiating a left-hand bend in the roadway, after driving down a decline.

3 There can be no dispute about these basic facts of the accident and the consequential serious injury to the plaintiff. The more difficult questions which face this court concern the cause of the accident, whether the truck by reason of lack of proper mechanical service or by reason of its structure was dangerous through the negligence of the defendant, the extent and duration of the injuries incurred by the plaintiff, and, assuming liability, what damages should be payable.

Principles

4 The legal principles relevant to the determination of liability in a case such as this have been succinctly distilled by Mr Menzies QC, counsel for the plaintiff which I would paraphrase as follows:

(a) an employer has a duty to take reasonable care to avoid exposing employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18 at 25;
(b) this duty extends to devising a suitable system, warning of unexpected risks and instructing employees how best to secure against injury;
(c) the employer has an obligation to provide a proper plant safety system of work: Wilsons & Clyde Coal Company v English [1938] AC 57 at 84, 85; that duty falling upon the employer is non-delegable: Kondis v State Transport (1984) 154 CLR 672;
(d) the court should ask whether there was a foreseeable risk of injury: Shirt v Wyong Shire Council (1980) 146 CLR 40; and
(e) in determining causation the court will apply a “commonsense” test: March v Stramare (1991) 171 CLR 506. See, also, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321.


This brief statement of principles was not the subject of any dispute by Mr D J Russell SC, counsel for the defendants.

Liability

5 The plaintiff pursues his case on liability on two bases. First, it is said that the defendant was negligent in failing to fix a mechanical problem, which caused the gearbox to “neutralise” when changing between the lower and upper ranges, that is, in particular, when changing from gear 4 to gear 5. A propensity for the gearbox to neutralise unexpectedly meant that steering was difficult and that the driver could lose control of the vehicle; secondly, it is pointed out that the defendant’s vehicle was rigged to pull semi-trailers and that the trailer being used by the plaintiff at the relevant time was attached to the uppermost linkage devices, causing the vehicle to have a high centre of gravity. It is submitted that this particular method of linking the truck and of having dual linkages tended to raise the centre of gravity, making the vehicle far more likely to roll over than other comparable vehicles.

6 On the other hand, the defendant contends that the plaintiff’s version of events is “inherently improbable”. In part, this is said because of the speed the truck was travelling – between 40 and 50 kph – which meant, so the defendant contends, that the vehicle being driven by the plaintiff must have been already in fifth gear when he attempted to make the gear change, that is to say already in the high range of the gearbox when the gearbox neutralised, and it is said that the history of neutralising involved the change between fourth and fifth gear, that there was no prior instance of the vehicle engaging fifth gear and then dropping back into neutral from the fifth gear. However, I note that it is fairly conceded by the defendant that, if the gearbox did neutralise and the motor stalled, and if power steering was thereby lost, once the power steering is lost the vehicle becomes too difficult to control.

7 The other basis upon which it is said that the account of the plaintiff is improbable, relies upon discrepancies between the evidence before this court and the version of events which the plaintiff gave to the police on the day of the accident and to a Mr Simpson. Mr Simpson was a potential expert witness whose evidence was ultimately not tendered by the plaintiff but some material from his report was tendered by the defendant as an extracted quotation in the engineering report of Mr Alan Nicolson.

8 It seems that the plaintiff told Mr Simpson that while commencing to negotiate a gradual left-hand curve in the roadway, the gearbox “unexpectedly neutralised.” There is some element of ambiguity about whether the vehicle was in fifth gear and then dropped back into neutral, that is neutralised, and whether or not Mr Hepworth lost consciousness at the accident. However, what the plaintiff is consistent about was an unexpected neutralisation. That is what he said to the police, to Mr Simpson and to this court.

9 I accept the evidence of the plaintiff as substantially correct and in particular I find it to be true that:

(a) the plaintiff was travelling down a hill towards the intersection of the highway and Lawrence Hargrave Drive;
(b) it was a left-hand bend that he was negotiating;
(c) he made a change from low range to high range in the gearbox and went into fifth gear, but within a couple of seconds the gearbox neutralised;
(d) when the gearbox neutralised, the Jacob’s Brake continued to operate, bringing the vehicle’s speed down rapidly and causing the motor to stall shortly thereafter;

(e) once this happened, power steering was lost and it was impossible to steer the vehicle around the corner;

(f) the plaintiff at one stage pushed in the clutch, which normally would mean that the Jacob’s Brake should cut out, but in relation to the present accident it kept working and this had happened once earlier on the same route when the plaintiff was driving; and

(g) as a result, the vehicle rolled over.

10 The plaintiff was thrown from the cabin and probably “knocked out.” Both as a matter of demeanour and likelihood, I find, on the balance of probabilities, that this represents a reasonable account of the accident. I reject the alternative hypothesis put by the defendant that the plaintiff “mucked up” a change in the gearbox.

11 I formed an impression of the plaintiff as a truthful witness. Also, it seems to me, that at key points his evidence is corroborated by other witnesses.

12 Mr Neil Tickle was called by the defendant. He was in charge of the mechanical maintenance of the defendant’s vehicles at the material time. This particular truck was nicknamed “homing pigeon” because it spent quite a lot of time in the workshop. Mr Tickle attested to the fact that the greasy plate linkage on the prime mover on this truck had the effect of raising the linkage point by a significant amount, of the order of 75 mm. He gave information about the vehicle maintenance sheets, which became Exhibit 7 in these proceedings, and acknowledged, as seems obvious, that this is not a comprehensive collection of maintenance sheets but rather there are gaps in the documentation. He attested that the regular driver of this vehicle (Mr Cameron) complained about the gearbox neutralising from time to time. Now one factor that the defendant relies upon is that the gearbox on this vehicle was replaced with another gearbox in July of 1993, approximately 2 months prior to the accident. That complaints were made about the neutralising tendency of this truck prior to the change of gearbox is incontestable. A number of entries in the mechanical records (the vehicle maintenance sheets) demonstrate that fact, as does the evidence of Mr Tickle. A question arises as to whether complaints about neutralising persisted after the change of gearbox. Mr Tickle said that he was unable to substantiate any claim that the regular driver of the truck did not complain after the gearbox was replaced in July. The regular driver of the truck Mr Cameron and Mr Haines (who had also driven the truck from time to time) gave evidence in cross examination by counsel for the plaintiff that the gearbox problems in this vehicle persisted during 1993, including after July of that year and before 16 September.

13 This truck had rolled over twice prior to the accident involving the plaintiff (T.192), that is, this truck had rolled over three times in 14 years, and there were no others in the fleet that had rolled three times in the period of ownership. (T.193).

14 As I have said, Mr Tickle was unable to deny the subsistence of those complaints. Thus, in my view, the plaintiff is correct to submit that there is uncontroverted evidence that the defendant was aware, or should have been aware that, by reason of the neutralising tendency of the gearbox, this truck was “an accident waiting to happen.” I note that Mr Tickle gave evidence that in relation to maintenance of the vehicles in the fleet money “was tight” at times. Mr Cameron gave evidence that “from memory” the problem with the gearbox continued after its replacement.

15 In particular, and without being exhaustive, it was noted in the vehicle maintenance sheets :

· on 24 February 1993: “gear box keeps nuterlising (sic)”

· on 4 June 1993: “find out why Gear Box is nuterlising (sic). This is followed by the word “DONE”.

· on 23 December 1993: “Gear Box splitter Range change kit.” (The problem of neutralising related to the O rings in the range change spitter mechanism: (T.194.40 –44)).

16 Another witness called by the defendant was Mr Haines who, as I have said, drove the truck from time to time. He attested that this vehicle did not handle well and “felt as though it would tip over when you went into a corner.” This evidence seems to be directed to the nature or structure of the vehicle, including its centre of gravity, rather than the neutralising phenomenon.

17 It seems to me that the consistency of the plaintiff’s evidence about the accident being caused by neutralising is more significant than any discrepancies in the accounts which were given and, in particular, when one is considering what he said to the police on the day of the accident it must be borne in mind that shortly before the plaintiff had suffered a serious head injury. Whether this amounted to a full loss of consciousness is somewhat ambiguous, however, it is clear that the accident had a substantial impact upon the plaintiff. I accept the submission of the plaintiff that any account given immediately after such an accident would need to be treated “with caution”. In any event, there is evidence particularly from Mr Haines that the neutralising effect occurred in a variety of situations, not only when the gear was changed from 4 to 5 or 5 to 4, but also when the indirect gears were engaged by the “splitter” knob on the gear lever.

18 Ultimately, in December 1993, the evidence indicates that the external control valves associated with the gearbox were repaired by the installation of a new splitter. That is when the “range change” was “fixed” (T.94 – 95). Accordingly, there is force in the submission of the plaintiff that on the balance of probabilities, it was only after the accident that the real problem was addressed and rectified.

19 I find that the vehicle was defective in both respects propounded by the plaintiff, arising from a failure on the part of his employer to properly service, maintain, repair or safely structure the vehicle resulting in an unsafe gearbox and an unsafe linkage of the trailer. Either factor would, in my opinion, constitute on a commonsense basis a foreseeable risk of injury. It should be said that, as I apprehend it, the submissions for the plaintiff placed more emphasis on the former consideration (gearbox defect) than on the latter.

Contributory Negligence

20 The defendant says that there was contributory negligence on the part of the plaintiff, suggesting that the plaintiff should bear between 25% and 50% of the apportionment of blame between two negligent parties. I am of the view that the defendant has not discharged the onus of proof which lies upon it in this respect. Momentary inadvertence by an employee does not amount to contributory negligence: Polycarpou v Australian Wire Industries Pty Limited (1995) 36 NSWLR 49; nor does contributory inadvertence: Judd v Portland District Hospital (unreported) Supreme Court of Victoria, Court of Appeal, August 1995. Reasonable maintenance of plant and equipment is part of the non-delegable duty falling upon an employer: see Miletic v Capital Territory Health Commission (1995) 69 ALJR 675. As Lord Wright said in Wilsons & Clyde Coal Company Limited v English [1938] AC 57 at 84 – 85:

I think the whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen … the obligation is threefold, as I have explained. Thus the obligation to provide and maintain proper plant and appliances is a continuing obligation. It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow servant or merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman or other employees.

21 The witnesses called by the defendant, in particular Mr Miller and Mr Tickle, must have appreciated that the Jacob’s Brake could activate when the gearbox neutralised leading to a loss of power to the steering. I find that, on the balance of probabilities, that risk was drawn to their attention by Mr Cameron and, perhaps, also by Mr Haines.

22 The supposed defective gear change on the part of the driver is conjecture and is incompatible with the plaintiff’s evidence, which I have accepted as an honest account. In these circumstances I reject the claim of contributory negligence.

Damages

23 I turn then to the question of quantifying the damages. The defendant fairly concedes that the plaintiff has significant injuries to his right knee and his back. However, the defendant questions the consequences of those injuries. It is common ground that the relevant statutory provisions are to be found in Part 6 of the Motor Accidents Act 1988 (“the Act”). Section 151E of the Workers Compensation Act 1987 deals with “modified” common law damages in respect of an injury to a worker. Section 151E(2) provides that:

This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act, 1988 …applies.

Non-Economic Loss

24 It is common ground that the plaintiff satisfies the threshold prescribed by s 79 of the Act. That section, and not s 79A, is applicable because the accident occurred before 26 September 1995. The court must award damages that are a proportion, determined according to the severity of the non-economic loss of the maximum amount that may be awarded: s 79(2).

25 In relation to non-economic loss, (including compensation) for pain and suffering and loss of amenities of life, the plaintiff points out:

(a) the medical reports describe a “significant surgical intervention”; and
(b) a knee replacement, it is common ground, will be required in the future. Accordingly, it is submitted that the plaintiff’s injuries have been “disabling” and that non-economic loss should be assessed at 50% of a most extreme case.


The defendant points to the threshold prescribed s 79 of the Act which requires the plaintiff to show that his ability to lead a normal life has been significantly impaired and “acknowledges” that the plaintiff satisfies this threshold. The defendant submits that the plaintiff’s non-economic loss should be assessed in the range of 40% ($131,600) to 50% ($164,500) of a most extreme case.

Having regard to all of the circumstances of the case and the position taken by the parties on this question. I would assess the loss in this category to be 50% of a most extreme case.

Economic Loss

26 It is common ground that the appropriate net figure on which to calculate past economic loss is $350.00 per week. The defendant acknowledges that the plaintiff has, ever since the accident, been unfit for his previous occupation as a heavy vehicle driver, and because of the right knee and back problems there are many occupations for which he is unsuited.

27 The defendant also accepts the plaintiff’s assertion in evidence that he was too disabled to do very much at all until after his back surgery in late March 1996. The defendant is prepared to assume 3 months to recover from that surgery and identifies a total economic loss from 16 September 1993 to 30 June 1996, that is, 141 weeks. Thus, one would multiply $350.00 per week by 141 weeks yielding a figure of $49,350.00. Then there are 407 weeks in the balance of the period between 30 June 1996 and 30 March 2004. The plaintiff says that $350.00 per week should be multiplied by 407 weeks in this period. However, both parties agree that the plaintiff retained some residual earning capacity, that is, as the plaintiff puts it, incapacity since the back surgery has been “partial and not total …” and as the defendant puts it, that during this particular period he had a “residual earning capacity”.

28 In an assessment by the vocational capacity centre, by a report dated 27 November 2002, which was tendered in evidence, a variety of possible occupations are suggested of a relatively sedentary nature. They include car park attendant, although given the advent of technology in this industry one wonders as to the extent of job opportunities, gatekeeper, video library assistant, telephone betting clerk (TAB), office cashier and others. With training it is said that he would be suitable for employment as a security officer or a motor vehicle parts interpreter. Undoubtedly, there would be some difficulties of adjustment for a man who has spent his working life as the driver of a heavy vehicle. There may be psychological barriers. In relation to many conceivable occupations there would be difficulties of lack of training, qualification or capacity either physical or educational. The prospects of such employment are dealt with in some of the plaintiff’s own medical reports which were tendered. For example, Dr Brendan Jones, an orthopaedic surgeon, points to ongoing signs of pain and instability and says that he was totally unfit for any work that involved heavy duties or having to climb ladders or steps. In his report dated 16 September 1999 Dr Jones says:

he is really only fit for seated or quite sedentary employment for which he is probably unsuited by way of education, training and temperament.

The doctor also adverts to the likelihood of the need for a total knee joint replacement in the future. Dr Stephen Buckley, consultant physician in rehabilitation medicine in his report of 10 January 2000 attests that the plaintiff is unfit for heavy manual labour and says:

his back and knee injuries would be consistent with light manual work such as might be required of a shop assistant, provided that he had the opportunity to sit for 5 minutes every hour and was not required to work for more than 15 minutes during the day with his hands above shoulder level or below knee level.

The result of the serious injuries, the doctor thought, meant that the plaintiff’s capacity to work has been “markedly reduced”. Dr Buckley also adverts to the requirement of a total knee joint replacement in the future. I refer also to the reports of the defendant’s doctors, Dr Caldwell and Dr Oakeshott.

29 Dr Caldwell in his report of 3 July 2001 thought that it was “probable” that the plaintiff could undertake:

some fairly simple job such as tollgate/boom gate worker.

Associate Professor Oakeshott in his report of 19 June 2001 thought that, although permanently unfit to work as a heavy vehicle driver, the plaintiff could drive a light vehicle, preferably with automatic controls and work in a job that did not involve:

prolonged driving and frequent entry and exit from the vehicle.


On this basis, the defendant contends that, on the evidence, the plaintiff was capable of part-time light work, and draws attention to the fact that he was engaged as a casual employee before the accident. Thus, it was submitted by the defendant that the residual earning capacity of the plaintiff is between 25% and 50% of pre-accident economic capacity. I think that that is putting the matter too highly, and given an element of the arbitrary nature, which is inherent in any such assessment, would find that the calculations of past economic loss should be discounted by a factor of 15%, that is to say, the plaintiff’s earning capacity (apart from the conceded finite period of total incapacity) was reduced by 85%. I find that the plaintiff is entitled to interest on past economic loss and accede to the application by the parties that they would calculate that in the light of this judgment. As to past superannuation, both parties would use a figure of 7% in the calculation, and agree that this average figure should be applied to the total calculated for past economic loss.

Future economic loss

30 The plaintiff was born on 26 June 1962, and is 41 years old. His compensation for the future must encompass 24 years up until a retirement age of 65 years. I accept the submissions of the plaintiff that, in all of the circumstances which I have outlined, it will be difficult for the plaintiff to gain any suitable employment. On the other hand, the plaintiff does not present as a man who has assiduously sought alternative employment in the past. In the last decade, the plaintiff has only sought 2 jobs. Under the provisions of s 39 of the Act, the duty of an injured person to mitigate his damages is expressly prescribed. The provision goes on to require that, in assessing damages, consideration is to be given to the steps taken by the injured person, and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. One of those steps includes, pursuant to s 39(1A)(d): “pursuing alternative employment opportunities”. Section 39(2) provides:

in any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant.


In other words, there is an effective reversal of the conventional onus of proof in this respect. It is accepted, of course, that the conventional discount to allow for adverse vicissitudes of 15% should be applied, and so the plaintiff contends that the figure which emerges from that calculation is $428,580. I find that that should also be reduced for residual capacity of 15%. As to future superannuation, it is common ground that the amount to allow for future superannuation loss is to be calculated by applying 9% to the aggregate amount arrived at for future economic loss.

Fox v Wood

31 The parties agreed that an amount of $36,884.98 should be awarded for this head of damages in accordance with the principles outlined in Fox v Wood (1981) 148 CLR 438.

Past out-of-pocket expenses

32 It is agreed that the amount awarded in this respect should be $53,450.89.

Future medical expenses

33 Given that the plaintiff sees his general practitioner only every few months, essentially to obtain a workers compensation certificate, that he is taking non-prescription medication (a painkiller) at a cost of $6.00 per week, that he has not seen a specialist for his back or knee for some years, and putting aside the need for a knee replacement, it is my view that a sum of $5,000 should adequately cover the plaintiff’s future analgesics. The parties agree that, as the medical evidence shows, there will be the added cost of a knee replacement. Assuming a 14 year deferral the agreed figure for that future surgery is $16,625.00 and I award that sum.

Past domestic assistance

34 The plaintiff required significant assistance from his wife and his mother for a period of 6 – 8 months after the accident and then for another 2 months after his back surgery. The parties are agreed that the amount allowed should be $6,468.00 for past domestic assistance. By virtue of s 73(2) of the Act, no interest can be awarded on damages for compensation for domestic assistance. I am of the view that, in relation to past domestic assistance, the evidence does not sustain any figure higher than that which I have specified, although the plaintiff does seek an amount for 2 hours per week up to the date of the trial. I reject that claim as insufficiently justified by the evidence.

Future domestic assistance

35 In order to make an award in this respect, the plaintiff needs to meet a threshold amount of 6 hours per week. As I understand it, the plaintiff currently lives with his father. Dr Stephen Buckley by report dated 10 January 2000 thought that if the plaintiff chose to live alone in an average sized suburban cottage he would need assistance of 5 hours per week for housekeeping and 3 hours of handyman assistance per week. It appears that the plaintiff does some handyman work about the house and helps with the washing up. He drives a car and a motorcycle. There is very little assistance currently provided and in all of the circumstances I am not persuaded on the balance of probabilities that the threshold has been met. Even where the threshold is met, only 2 hours per week is allowable. In all of the circumstances I would decline to make an award for future domestic assistance.

Orders

36 I propose to make orders in accordance with this judgment and these findings:

1) Verdict and judgment in favour of the Plaintiff in the sum of $864,155;
2) Exhibits to be retained by the Court until 5 August 2004 at which time they may be returned unless an appeal has been filed in the Court of Appeal;
3) The Defendant to pay the Plaintiff’s costs and such costs are to be paid on an indemnity basis from 15 May 2003 and on a part/party basis before that time;
4) That the Defendant have a credit in the sum of $370,589 for payments made pursuant to the Workers Compensation Act 1987.
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Last Modified: 05/18/2004