Jovanovski v Billbergia Pty Ltd

[2011] NSWCA 135

Court of Appeal

New South Wales

Case Title:	Jovanovski v Billbergia Pty Ltd
Medium Neutral Citation:	[2011] NSWCA 135
Hearing Date(s):	29 April 2011
Decision Date:	02 June 2011
Jurisdiction:
Before:	Giles JA at [1], Hodgson JA at [41], Macfarlan JA at [42]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	NEGLIGENCE - breach of duty of care - contract truck driver on site - incidents of grease being placed on truck steps - defendant should have warned others on site of criminal consequences and dismissal if caught - whether causation established - would warning have deterred perpetrator from further incident which caused fall and injury - application of s 5D(1) Civil Liability Act 2005 - not enough that warning might have had effect - on facts, not more likely than not that warning would have prevented injury - whether past and future economic loss correct assessed - post-injury earning capacity - on facts, half average weekly earnings of full-time males not correct measure - lesser post-injury earning capacity assessed.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1.
Texts Cited:
Category:	Principal judgment
Parties:	Ilo Jovanovski - Appellant Billbergia Pty Ltd - Respondent
Representation
- Counsel:	B Toomey QC & S J Longhurst - Appellant P Greenwood & J Stewart - Respondent
- Solicitors:	Russell McLelland Brown - Appellant Curwoods Lawyers - Respondent
File number(s):	CA 2006/267086
Decision Under Appeal
- Court / Tribunal:
- Before:	Davies J
- Date of Decision:	31 March 2010
- Citation:	[2010] NSWSC 211
- Court File Number(s)	20350/06
Publication Restriction:

Judgment

1. GILES JA : The appellant drove one of the respondent's trucks as a contract driver. He was injured when he slipped from the steps forming a ladder on the back of the truck and fell to the ground. Grease had been placed on the steps.

1. The trial judge, Davies J, found in the appellant's favour on duty of care and breach of duty. He was not satisfied that the breach of duty caused the appellant's injury. In case he was incorrect as to liability, he assessed damages.

1. The issues on appeal were causation and past and future economic loss.

Causation

1. The respondent was engaged in a building project at Meadowbank in Sydney. It was a large project, involving the construction of about 680 home units. There were major excavation works, and the appellant drove a truck carrying excavated material from the site to where it would be dumped. He was one of three drivers who drove trucks owned by the respondent, and up to 10 other drivers and trucks were engaged by the respondent. The appellant said that there were up to 15 trucks at the site on some occasions.

1. The appellant left his truck at the site overnight. The site was fenced off, and the gate was locked from 6 pm to 6 am, but there was not a separate compound for trucks within the site. The appellant generally arrived at about 6.30 am and left at about 5.30 pm. In the weeks before the appellant's injury four trucks were left at the site overnight in addition to the truck driven by the appellant, and when the appellant arrived in the morning other truck drivers were usually already there; presumably other truck drivers sometimes left after the appellant.

1. Apart from truck drivers, there were four excavators on the site which loaded the trucks, and also a "couple of backhoes, a bobcat". Each of these would have had an operator. The evidence did not show whether the operators were employed by the respondent, or were contract operators, or employees of third party contractors.

1. The appellant answered affirmatively the question, "And were there staff on site who were attending to other matters, labourers, builders, things of that nature?" There was no more detailed exploration of this suggestion that work other than excavation work was being carried out, accounting for further personnel on site.

1. The foreman on site was Mr Brendan Cronin. Other than a general reference to "other site staff", the evidence did not reveal what other supervisory or administrative staff may have been on site.

1. In August 2003, possibly in November or December 2003, the appellant was involved in an incident with another driver, Mr Ricky Denton. Mr Denton asked the appellant to swap a cartage allocation, and when the appellant refused Mr Denton punched him in the face. The appellant reported the incident to Mr Cronin.

1. Apart from this incident, according to a statement later made by Mr Cronin to an insurance investigator -

"17. Ilo always had a reputation as being very short tempered and abrupt in his manner. Because of these traits he was unpopular with other site staff and from my observations other staff tended to have as little to do with him as possible.

18. Ilo also complained to me on a regular basis about minor matters that no other drivers complained of, e.g. he complained about the state of the temporary road surface inside the Meadowbank site that the excavator operators were overloading his truck when they dumped the fill in it or else they were dumping fill when the excavator bucket was too high above the truck. ... "

1. On a day early in February 2004 the appellant went to open the door of his truck and found that grease had been placed on the door handle. He told Mr Cronin. A few days or perhaps a week later, the appellant found that grease had been placed on the door handle and also on the steps behind the truck cabin giving access to the top of the truck. About a week later he found grease smeared in the same locations. He reported both these occurrences to Mr Cronin.

1. The appellant suffered his injury on 18 February 2004. He had checked for grease on the door handle and the steps behind the truck cabin. After his fall he found grease on the steps at the back of the truck.

1. At a later time, in June 2004, there was another incident involving the appellant, Mr Denton and an excavator operator, Mr Keith Haslip. One consequence was that the appellant was charged with assault, to which he pleaded guilty. The trial judge said at [26] that "the full circumstances of this incident and the trial where the plea of guilty were entered was left very vague by both parties", and did not make explicit findings.

1. The trial judge found that the respondent owed to the appellant the duty of care which would have been owed to him as an employee, involving providing a safe system of work including proper supervision of other persons on the work site for whose behaviour the respondent was responsible. He found that because of the complaints of grease being placed on the door handle and steps of the truck, the appellant should have warned all others working on the site that if they were caught putting grease on any person's truck they would be dismissed, by a written notice posted at the site or at a "toolbox meeting" where all were called together, and that Mr Denton should have been specifically warned. The respondent did nothing.

1. Causation was to be addressed according to the principles in s 5D of the Civil Liability Act 2002. With particular reference to Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, from which he correctly took that the appellant "does not succeed merely by showing that particular conduct might have deterred or prevented the harm" (at [78]), the nub of his Honour's decision was -

"82 ... Adeels makes clear that where the issue of causation is governed by s 5D breaches such as those that I have found, cannot be regarded as a necessary condition of the occurrence of the harm for the purposes of s 5D(1). The matter can be put no higher than that the appropriate warning might have deterred or prevented the occurrence which caused the injury to the Plaintiff.

83 Further, I cannot be satisfied on the balance of probabilities that a warning coupled with a threat of dismissal would be more likely than not to have deterred the perpetrator from further acts of grease smearing or the like. There is only evidence to infer that truck drivers on the site were likely to have been earning $1400 per week net. There is no evidence of what other persons on the site may have been earning. In any event, the majority of drivers were not direct employees of the Defendant, and dismissal from this site and termination of any sub-contracting arrangement with the Defendant may not have had the same implications for sub-contracting drivers as would have been the position for direct employees. There are simply too many possibilities involved to enable a view to be reached on the balance of probabilities in favour of the causal connection."

1. The appellant failed on factual causation: s 5D(1)(a). He did not submit on appeal that this was an exceptional case, within s 5D(2), and that factual causation should be found although the respondent's negligence was not established as a necessary condition of the occurrence of his harm.

1. The appellant submitted that the trial judge should have found that it was more probable than not that, had the warning been given, the grease smearing which caused his fall would not have occurred. He accepted that it could not properly be submitted that Mr Denton was the likely perpetrator, and it will be noted that the grease smearing was some months after the 2003 incident. But he urged upon us the deterrent effect of a warning, by notice or at a toolbox meeting, pointing out the risk of injury from smearing grease on the truck and the perpetrator's possible exposure to criminal liability and certainty of instant dismissal. It was suggested that there was no reason to believe that the person who put the grease on the steps intended to injure the appellant or was more than a prankster, and it was said that persons on the site would have been grown-ups who could be expected to act rationally.

1. The appellant referred also to a sentence in Mr Cronin's statement, "At times a building site can be like a kindergarten whereby the staff play childish practical jokes on each other and I generally turn a blind eye unless I consider the jokes could be hazardous". He submitted that implicit in this was that there were occasions when Mr Cronin did not turn a blind eye but put a stop to the hazardous conduct, and that it was some evidence that a strong warning would be effective.

1. These submissions have force, but I am not persuaded that they carry the day.

1. The risk of injury to the appellant from grease on the steps was plain, and it is difficult to accept that whoever applied the grease was a mere prankster, or was unaware of the seriousness of what he or she was doing. The appellant had gained unpopularity, not limited to Mr Denton or the excavator operators. A number of persons on the site, a class left rather open-ended on the evidence and one over members of which the respondent held varying sway, could have been determined to apply grease to the truck. Given the risk of injury, the perpetrator had departed from fully rational conduct, as shown by the series of applications of grease in February 2004, and was intent on something of a campaign against the appellant. It is likely that the perpetrator already appreciated his or her exposure to criminal liability and to dismissal from lucrative employment if discovered as the perpetrator.

1. It may have been that a warning would have deterred the person from the last application of grease. But that depended on the person's resolve and the likelihood of discovery, and the resolve appears to have been firm and there were ready opportunities for application of grease without discovery. It is not enough that the warning might have had effect.

1. The appellant's reference to Mr Cronin generally turning a blind eye does not in my view assist him. Mr Cronin gave evidence for the respondent, and was cross-examined. He was not asked anything about occasions when he did not turn a blind eye. It is no more than speculation that there were occasions when a strong warning had been effective, and the circumstances of any such occasion are quite unknown.

1. The respondent submitted that there was a further difficulty with causation. The appellant gave evidence that he had checked the door handle and the steps behind the truck cabin on 18 February 2004, but there was no evidence that he checked the steps at the back of the truck on that day or at any time. Nor was there evidence of how often he used the steps at the back of the truck. The respondent submitted that the grease might have been smeared on the steps at the back of the truck early in February, so that a warning after the second or third grease-smearings, even if effective to deter further applications, would not have prevented the fall. It may be that it could be inferred that the appellant used the steps at the back of the truck on occasions in the week or so before 18 February 2004 and that they did not then have grease on them. It is not necessary to decide.

1. I do not think that error has been shown in the trial judge's conclusion as to causation, and I would come to the same conclusion for myself.

Past and future economic loss

1. This does not arise, but it is appropriate to deal with it: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12].

1. The trial judge assessed damages amounting to -

Non-economic loss	$213,000
Past economic loss	$133,280
Interest on past economic loss	$33,237
Future economic loss	$148,113
Out-of-pocket expenses	$21,896
TOTAL	$549,526

1. His Honour found that the appellant suffered a disc herniation in his fall, and that pain experienced in his lower back and radiating down into his legs had been brought about by the fall. He thought it likely that the appellant had suffered an exacerbation of pre-existing neck problems with headaches, and that he had underlying personality and psychological problems which had been either brought to the surface or exacerbated by the injury and its sequelae. The appellant had ongoing pain and restriction of neck movement. The trial judge assessed the appellant at 45 per cent of a worst case, entitling him to $213,000 as damages for non-economic loss.

1. The parties had agreed that economic loss for the past and the future should be assessed on the basis of a pre-injury earning capacity of $1,400 net per week.

1. The trial judge accepted that the appellant was not fit for his pre-injury employment of truck driving, but considered that he was not wholly incapacitated for work. He observed (at [130]) that "[t]here is a dearth of evidence about what specific work Mr Jovanovski would be capable of doing, and it is necessary to bear in mind his background, lack of education and lack of specific skills in that regard".

1. The trial judge arrived at the damages for economic loss on the bases -

"137 In the absence of any evidence about precisely what work he could carry out and how he could be remunerated the best I can do is to say that I believe he has been incapacitated by 50% of his pre-injury capacity. That is based on the fact that he would be able to work in lighter employment. Using the Furzer Crestani data, average weekly earnings of full-time males between the beginning of 2005 and the present time has risen from $1075.70 gross to $1288.70 gross. Over the period that is an average of $1182 gross. That represents about $910 net per week. On this rather crude basis, but done for lack of any other evidence, I assess Mr Jovanovski's past wage loss at $490 net per week for 272 weeks producing a total of $133,280.

...

139 On the same basis, the most recent average weekly earnings for adult males is $1288.70 gross which is approximately $990 net. Mr Jovanovski is now aged 56 leaving him with 10 working years. The multiplier is taken as 425. His future wage loss is $410 x 425 x 0.85 (for vicissitudes) producing a figure of $148,113."

1. It is evident that his Honour used the average weekly earnings of full-time males as the measure of the appellant's earning capacity when "able to work in lighter employment". He deducted the $910 net per week and the $990 net per week from the $1,400 net per week, to arrive at the past wage of loss of $490 net per week and the future wage loss of $410 net per week. The relationship with the finding that the appellant had been "incapacitated by 50% of his pre-injury capacity" is not entirely clear.

1. Appreciating the difficulty in which the trial judge was placed by the dearth of evidence, the equation of average weekly earnings of full time males with ability to work in lighter employment was in my view problematic. The problem is not eased by the reference to loss of 50 per cent of pre-injury capacity. If his Honour meant physical capacity, it seems to attribute rather limited physical capacity to the hypothetical full-time male wage-earner. If his Honour meant economic capacity, why not take half the $1,400?

1. There was a range of sometimes passing references in the evidence to the appellant's post-injury capacity for work. A summary, not necessarily exhaustive, is -

·Ms Kathleen Rigley, Rehabilitation Counsellor: Mobile patrol or guardhouse duties and Assembler;

·Ms Nicole Dill, Registered Psychologist: work that does not involve a great deal of verbal communication or customer-based interaction;

·Dr R D Yarrow: fit to drive some vehicles, depending on the type and configuration;

·Dr Ian Davidson, Rehabilitation Medicine Specialist: a hoped-for ability to operate smaller, more accessible vehicles;

·Mr Peter Moloney, Neurosurgeon: suitable for employment which does not place a loading strain upon his neck or upon his back;

·Dr Jim Vote, Orthopaedic Surgeon: lighter work, part ambulatory, part sedentary in nature;

·Mr Colin Cope, Physiotherapist: appellant feels he may be able to cope as part-time delivery person with restrictions including on repetitive or heavy manual lifting; lost potential for future involvement in truck driving or handyman/builder career path;

·Ms Sue Beaver, Injury Management Consultant: appellant is interested in undertaking work as a postman where he is required to walk or drive for short distances only (but it was added that he "thought this role would be impossible to get").

1. Associate Professor Oakeshott, Consultant Surgeon, considered that the appellant had made a complete recovery from any injury he had suffered. Dr John Matheson, Consultant Neurosurgeon, considered that the appellant had no residual disability from his fall (but that he appeared to have a somatised disorder). These opinions cannot stand with the trial judge's findings.

1. There was no evidence of wages appropriate to the kinds of employment described above.

1. The appellant was born in Macedonia in 1953. He was schooled to age 15. He arrived in Australia in June 1974. He worked for a period of time in the steelworks at Port Kembla, and from 1992 as a truck driver. The trial judge accepted that he was a good worker, and that he loved his work as a truck driver and worked hard at it.

1. However, the appellant's background did not well equip him for many kinds of lighter employment, and his age and personality problems would not have assisted in obtaining other employment. Respectfully differing from the trial judge, I do not think that average weekly earnings of full-time males was correctly taken as the measure of his post-injury earning capacity.

1. The appellant submitted that it should be found that he had lost 80 per cent of his earning capacity. In my view that is too high. Acting with the same near guesswork as the trial judge, I would reduce the figures of $910 and $990 to $600 and $650. It is not necessary to carry the calculations through, but it should be noted that the judge appears to have made a slip in taking 10.25 future working years rather than 10.5 future working years.

1. I add that, without the benefit of a ground of appeal, the appellant submitted that the trial judge should have included in his damages an amount for future out-of-pocket expenses for cortisone injections. The trial judge had not been asked to do so, and there was no evidence of their cost.

Orders

1. I propose that the appeal be dismissed with costs.

1. HODGSON JA: I agree with Giles JA.

1. MACFARLAN JA: I agree with Giles JA.

***