Kelly v Humanis Group Limited

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	KELLY -v- HUMANIS GROUP LIMITED [2014] WADC 43

CORAM

: STAVRIANOU DCJ

HEARD

:	22 JULY-1 AUGUST & 5 NOVEMBER 2013

DELIVERED

:	3 APRIL 2014

FILE NO/S

:	CIV 2520 of 2011

BETWEEN

: STEPHEN MONTGOMERY KELLY

Plaintiff
AND
HUMANIS GROUP LIMITED
First defendant
TSS RECRUITMENT PTY LTD
Second defendant

Catchwords:

Torts - Negligence - Labour hire - Whether a duty of care - Whether breach of duty - Application of Civil Liability Act 2002 (WA) - Causation

Negligence - Vicarious liability

Assessment of damages - Duty to mitigate - Onus of proof

Assessment of damages - Loss of earning capacity - Retained earning capacity -
Non-pecuniary loss - Turns on own facts

[2014] WADC 43

Legislation:

Civil Liability Act 2002 s 5A, s 5B(1), s 5B(2)

Result:
Plaintiff's claim dismissed.

Judgment for the defendants.

Representation:

Counsel:

Plaintiff	:	Mr B L Nugawela
First defendant	:	Mr G R Hancy
Second defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Vertannes Georgiou
First defendant	:	DLA Piper Australia
Second defendant	:	DLA Piper Australia

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008]

WASC 239; (2008) 225 FLR 1

Bowen v Tutte (1990) Aust Torts Reports 81-043
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Deutz Australia Pty Ltd v Skilled Engineering Limited [2001] VSC 194
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Fox v Wood (1981) 148 CLR 438
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hodge v Barham [2011] WADC 71
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jongen v CSR (1992) Aust Tort Reports 81-192

Kalavrouziotis v Howel & Kalavrouziotis (Unreported, WASC, Library

No 980219, 1 May 1998)

[2014] WADC 43

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011)

243 CLR 361

Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638
McDonald v The Commonwealth (1946) 46 SR (NSW) 129

Medlin v State Government Insurance Commission [1995] HCA 5; (1995)

182 CLR 1

Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd & Anor

[1947] AC 1

Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) ALR 469
Payne v Parker [1976] 1 NSWLR 191
Pene v Murphy [2004] WASCA 103
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Savory v Holland & Hannan Cubitts (Southern)Ltd [1964] 3 All ER 18
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Southern Properties (WA) Pty Ltd v Executive Director of the Department of

Conversation and Land Management [2012] WASCA 79

Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; (2001) ALJR 1570
Thomas v O'Shea (1989) Aust Torts Reports 80-251

Vairy v Wyong Shire Council [2005] HCA 62; [2005] HCA 422; (2005)

223 CLR 422

Villasevil v Pickering [2001] WASCA 143
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Woolcock Street Investments v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR

515; (2004) 205 ALR 522; (2004) 78 ALJR 628

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

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[2014] WADC 43

STAVRIANOU DCJ:

Introduction

The plaintiff brings this action against the defendants seeking damages for injuries suffered by him in the course of his employment on 16 November 2009, which he asserts were the result of the negligence of the first and/or second defendants. At the time the plaintiff was working at the BHP Billiton owned Yarrie mine site (Yarrie) and was an employee of the mine operator Ngarda Mining & Civil Pty Ltd (Ngarda).
Liability and quantum are in issue.
The plaintiff's case is that as he reversed the dump truck he was operating to an area directly underneath a fully loaded excavator bucket, the excavator operator, Reggie James Mathew Scanlan, an employee of the first and/or second defendants, negligently dropped the fully loaded bucket onto the truck tray causing the truck to shake violently and cause injury to the plaintiff's neck and back.
The plaintiff alleges that the defendants are responsible for the negligence of Mr Scanlan on principles of vicarious liability. It is further alleged the defendants were negligent in failing to ensure that Mr Scanlan was adequately trained, experienced or qualified to operate the excavator.
The defendants deny that Mr Scanlan was negligent and assert they are not responsible for any established negligence on his part. Further, the defendants deny they owed the plaintiff a duty of care and that they were negligent.
The defendants' case as to quantum is that any injury suffered by the plaintiff was comparatively minor and he should have recovered from that injury within two years of the incident.
Causation is in issue. The defendants assert that the burden is on the plaintiff to prove his pre-existing low back degenerative condition would not have led to the same or similar consequences in terms of pain and suffering and loss of enjoyment of life, lost earning capacity, and requirements for treatment.

Background

The plaintiff was born on 9 June 1964. At 14 years of age, having completed Year 9, he left school. Since then he has worked in different occupations.

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Between 1990 and 1994 he was unemployed.
From 1995 he worked as a farm manager for two years and then for one year as an environmental health officer. He has also worked as a surveyor's assistant, ranger and road worker.
In 1998 the plaintiff completed a six-month Aboriginal training programme to enable him to secure employment in the mining sector.
In about 2007 the plaintiff commenced employment with Ngarda at Port Hedland. In about September 2009 he was transferred to Broome and at about that time started work at Yarrie at the rate of $126,000 per annum.
The plaintiff's duties at Yarrie involved operation of front-end loaders and articulated dump trucks. When he began in September 2009 he operated an electric truck, a 630 Komatsu. His shifts were of 12 hours' duration, two weeks on, one week off.
Yarrie is approximately 200 km east of Port Hedland.
The first defendant and the second defendant are incorporated.
Prior to 1 December 2009 the first defendant was known as Total Staffing Solutions Limited.
Between 12 October 2007 and 30 November 2009 Total Staffing Solutions Limited carried on a labour hire business known as Total Staffing Solutions (TSS).
The defendants were represented by the same solicitors and counsel. At trial the relationship between the defendants and TSS was not explored in detail. At times the descriptions TSS and Total Staffing Solutions were used interchangeably. Whilst the degree of imprecision adopted would generally be unacceptable, in this case no difficulty arises. In these reasons no distinction is generally drawn between TSS, Total Staffing Solutions, or the defendants. That is consistent with the approach adopted by the parties.
The defendants admitted that the first defendant and/or the second defendant engaged Mr Scanlan to work at Yarrie. Given the allegation as to Mr Scanlan's employment was expressed in the alternative, the defendants' admission did not resolve the question as to who was Mr Scanlan's employer. The defendants' counsel submitted in closing that there was evidence upon which a finding could be made that Mr Scanlan

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was employed by the second defendant. The plaintiff did not assert otherwise. I accept it was the second defendant that provided Mr Scanlan to Ngarda.

Mr Scanlan was born on 27 February 1956. In or about October 2009 he began working at Yarrie as an excavator operator. Prior to commencement he submitted a résumé to the second defendant and completed a medical assessment.
Mr Peter Taylor was the mine superintendent at Yarrie and worked for Ngarda. There were also several supervisors including Mr Steve Berry, Mr Gary Foxon and a Mr Brown who all worked for Ngarda.
On 16 November 2009 the plaintiff was the driver of a dump truck which was being loaded with iron ore by Mr Scanlan at Cattle Gorge, Yarrie. At the time Mr Scanlan was operating a Hitachi EX2500 excavator. The excavator had a capacity of 250 tonnes. The excavator was located on a bench. A bench is an area between two levels of the mine. In the course of loading the plaintiff alleges that he was injured and felt pain in the neck and lower back.
Subsequently the plaintiff called Mr Foxon and reported the incident to him. An investigation into the circumstances of the incident was conducted by Ngarda. Reports and statements were obtained as part of the process.
The plaintiff's evidence was that following a period off work he had unsuccessfully attempted to return to his duties at Yarrie. However he found using the dump truck aggravated his injuries, particularly his back. Towards the end of 2009 he left Yarrie and has not returned.
In about 2011 the plaintiff had been able to do some light work, but has not worked since that time.
The plaintiff has been reviewed by a number of medical practitioners and is now on a disability pension. He gave evidence that he suffers back pain and referred pain to the legs.

The pleadings, issues and hearing

The plaintiff's case, as described in written submissions, is put in two ways. First, that his injuries were caused by 'the direct negligence of the defendants who failed to ensure that its employee (Mr Scanlan) was adequately trained, experienced or qualified to operate the particular type

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of excavator'. Secondly, that the defendants were responsible for
'the casual negligence of its employee on principles of vicarious liability'.

The plaintiff's pleaded description of the incident is as follows:
On the 16th day of November 2009 the Plaintiff in the course of his employment with Ngarda drove a dump truck to the west pit at the Cattle Gorge section of the Yarri mine site in readiness for loading by an excavator operated by Reg Scanlan. The Plaintiff reversed the dump truck to an area directly underneath the fully loaded excavator bucket. The excavator operator dropped the fully loaded bucket onto the tray of the Plaintiff's dump truck causing the dump truck to shake violently and thereby cause injury to the Plaintiff ('the accident').
The defendants admit that on 16 November 2009 Mr Scanlan was operating an excavator and was loading the tray of a truck operated by the plaintiff. Further, the defendants admit that the excavator came into contact with the tray of the truck when the excavator was loading the truck.
The defendants plead that in order to load the truck Mr Scanlan moved the excavator boom with the load clockwise and by doing so the excavator boom obscured his view to his right side. The procedure, as so described, is referred to as blindside loading. The defendants further plead that the contact between the excavator and the truck was to the outside rear edge of the truck and occurred in circumstances where there were dusty conditions, the plaintiff's visibility when reversing was reduced by the angle of the sun, the plaintiff was not able to communicate by radio with Mr Scanlan, and Mr Scanlan's view of the truck as it was being loaded was obscured by the boom of the excavator. In all the circumstances it is submitted Mr Scanlan was not negligent. Accordingly, no question of vicarious liability arises.
The plaintiff's case is that Mr Scanlan was not blindside loading when the impact occurred.
The defendants plead that the working conditions and the manner of working were exclusively within the control of Ngarda and not within the control of either defendant.
The duty of care relied upon is pleaded in par 6 of the amended statement of claim as follows:
At all material times the First Defendant and/or the Second Defendant knew or ought to have known that if one of their servants, agents or employees at the Yarri mine site did not perform their employment duties

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in a safe manner that other persons at the Yarri mine site including the Plaintiff would be exposed to a risk of injury and accordingly there was a sufficient relationship of proximity between the First Defendant and/or the Second Defendant and/or their servants agents or employees and the Plaintiff for the First Defendant and/or the Second Defendant and/or their servants, agents or employees to owe the Plaintiff a duty of care:

6.1 to take all reasonable care for the Plaintiff's safety when
performing his employment duties;
6.2 to take all reasonable care not to expose the Plaintiff to the risk of
foreseeable injury when performing his employment duties.

The defendants deny the existence of the pleaded duty of care or any
duty of care.
In par 8 of the amended statement of claim the defendants' alleged breaches of duty are pleaded as follows:

8.1 The excavator operator failed to properly control the bucket of the excavator to ensure that the bucket did not smash into the tray of the truck;
8.2 The excavator operator failed to keep any or any proper lookout for
the location of the Plaintiff's dump truck;
8.3 The First Defendant and/or the Second Defendant permitted the excavator operator to operate an excavator with which the excavator operator was inexperienced or lacked sufficient training.

The defendants deny they were negligent as alleged or at all.
The defendants admit that Mr Scanlan was working as an excavator operator at Yarrie but plead he was under the control of Ngarda or, alternatively, the owner of the mine. More specifically, the defendants plead that:

6.1.1 He (Mr Scanlan) was selected by Ngarda;

6.1.2

His (Mr Scanlan's) services were provided on the basis that if he proved satisfactory within 3 months of commencing at the mine he would be employed by Ngarda;
6.1.3 Mr Scanlan's anticipated term of working at the mine was a number
of months at least;
6.1.4 Ngarda supplied the excavator for Mr Scanlan to operate;

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6.1.5 Mr Scanlan had experience operating 60 to 180 tonne excavators but was allocated to operate an EX2500 excavator which was a larger excavator than he had previously operated;
6.1.6 Mr Scanlan underwent Ngarda's induction training and a theoretical assessment and was observed by a trainer while operating the EX2500 excavator;
6.1.7 Mr Scanlan required and underwent training in how to operate the
EX2500 excavator;
6.1.8 Mr Scanlan was issued with and worked under a 'permit to train';
6.1.9 Ngarda allocated a training officer to work with Mr Scanlan and
instruct him in how to operate the EX2500 excavator;
6.1.10 By 19 November 2009 Mr Scanlan was still operating under a permit to train and he had not undergone a final competency assessment by Ngarda;
6.1.11 Ngarda supplied the trucks into which Mr Scanlan loaded ore;

6.1.12 Ngarda controlled the work environment conditions,
communications between a truck driver and an excavator operator, and coordination of work between an excavator operator and a truck driver;

6.1.13 Neither Defendant had any right to enter the mine to exercise control over the work done by Mr Scanlan, the work environment conditions, communications between a truck driver and an excavator operator, and coordination of work between an excavator operator and a truck driver;
6.1.14 On several occasions Ngarda's mining superintendent spoke to Mr Scanlan about mining and loading procedures and how to make his operations more efficient;
6.1.15 Neither Defendant had an external safety regime that Mr Scanlan was required to comply with when he worked at the mine;
6.1.16 Ngarda had, but he Defendant employer did not have, day to day responsibility, and the ability to exercise that responsibility, for Mr Scanlan's safety and for safe working conditions;
6.1.17 Ngarda was entitled to require that Mr Scanlan leave the mine if he proved to be an unsatisfactory or unsafe worker.

The major issues in relation to liability may be summarised as
follows.

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[2014] WADC 43

First, whether the defendants owed any duty of care to the plaintiff and, if so, the content of that duty.
Secondly, was there a breach of any duty of care.
Thirdly, whether Mr Scanlan was negligent in the operation of the
excavator.
Fourthly, whether the defendants are responsible for any established breach of duty by Mr Scanlan.
The defendants deny that any loss or damage suffered by the plaintiff was caused by their negligence.
The defendants deny that the plaintiff sustained any injury, symptoms or incapacity for work.
The defendants plead that:
1.          The injury was a soft tissue injury and/or an aggravation of pre-existing degenerative changes in the lower back, and the plaintiff should have recovered from that injury within 18 months, and he has recovered from that injury.
2.          Any symptoms or incapacity to work have been caused by the plaintiff's failure to lose weight and to exercise to build up his physical fitness and strength including core muscle strength.
3.          The plaintiff has been, and is, fit for sedentary, semi-sedentary or ambulatory duties that do not require:

(a) lifting greater than 5 kg;

(b)

severe whole body low frequency vibration or jarring of the spine;
(c) frequent or severe bending or twisting of the back;

(d)

frequent walking up and down stairs or over uneven ground;
(e) climbing ladders.

46	Little was agreed between the parties in relation to substantive issues. There were in excess of 1,000 pages of exhibits produced at trial,
STAVRIANOU DCJ	[2014] WADC 43

the bulk of which were tendered by consent. The plaintiff's witnesses
were:

(1) The plaintiff;
(2) James Lloyd Hillard;
(3) Dr Philip Michael Finch;
(4) Dr Philip James William Carrivick;
(5) George Lucky;
(6) Dr Kim Fong;
(7) Dr Steven Chew.

The defendants' witnesses were:

(a) Peter Ronald Taylor;
(b) Ross Keith McLaren;
(c) Malcolm Linton Holmes;
(d) Kim Stanley Crofts;
(e) Dr Joel Silbert;
(f) Dr Brian Galton-Fenzi;
(g) Amanda Kathleen England;
(h) Gary Phillip Van Vliet.

The plaintiff's evidence

As at 16 November 2009 when the incident is alleged to have occurred the plaintiff had had about two years' experience as a dump truck operator. When he commenced working for Ngarda he was required to undergo an induction programme and a three-day orientation programme.
The plaintiff's evidence was that prior to the incident he was in good health. He had had previous injuries to the back but these had resolved prior to the incident.

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[2014] WADC 43

The plaintiff's evidence was that at about 5.30 am on 16 November 2009 he had gone to the pre-start area of Cattle Gorge in accordance with usual practice. A safety and other issues meeting occurred. The plaintiff said that the usual practice was that at about 6.00 am a pre-start would take place on the vehicles. Documents were completed and thereafter drivers drove to the location of the excavators.
The plaintiff's evidence was that on 16 November 2009 the excavator being operated by Mr Scanlan was situated on a 3-metre bench at Cattle Gorge. The plaintiff said the incident occurred when the first load for the day was taking place. At the time the excavator was located above the level of the dump truck.

The plaintiff gave evidence he stopped his truck away from the excavator bucket which was in the air. He unsuccessfully attempted to radio Mr Scanlan to ask him if that was where he wanted the truck. The plaintiff heard a beep from the horn of the excavator. He looked in his left-hand mirror and saw Mr Scanlan with his hands in a V shape in the air. He interpreted the hand gesture as Mr Scanlan saying, 'What are you doing?'. The plaintiff then reversed back under the excavator. The bucket was still in the air.
The plaintiff gave evidence as to the impact which then occurred as
follows:
Right? - When he beeped the horn for me to stop, that's when I - I felt a big bang in the tray. It shook me all over the place. And - and that was it. (ts 46).
The beeping of the horn was normal practice. There were two separate beeps as part of the usual practice. The first beep was the signal to stop reversing. The second beep was the signal to drive off with the load.
The plaintiff gave evidence that once he was hit he had put his arms out the window and saw Mr Scanlan gesturing to him with his arms as if to say 'What are you doing?'. The plaintiff then gestured in the same way to Mr Scanlan. Mr Scanlan was waving his arms around and gesturing. The plaintiff then went to unload. He then drove back to the location of the excavator and a further loading and unloading procedure occurred.
The plaintiff's evidence was that it was when he went to the excavator location on the second occasion that he first started to experience pain in the neck and lower back.

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[2014] WADC 43

The plaintiff gave evidence that he did not see the bucket collide with the tray but had felt it. He described the collision as vibrating right through the truck cabin. He said he did not believe the conditions were dusty or that there was a lack of visibility.
It was the plaintiff's evidence that when he returned for a third load an instruction was received by all operators that they were required at the go-line. The go-line is an area away from the excavator operations.
The plaintiff gave evidence that at the go-line he had spoken to Mr Scanlan. The plaintiff gave evidence that each had asked the other in colourful language what he thought he was doing. The plaintiff had asked Mr Scanlan whether he realised he had hurt him. Mr Scanlan had said he was not frightened of the plaintiff. The plaintiff had said he was not frightened of him. Mr Scanlan had then walked off. The plaintiff had then called his supervisor Mr Gary Foxon and thereafter met him at the go-line of Cattle Gorge and reported the incident to him. Later that day the plaintiff had attended a meeting with Mr Peter Taylor and made a statement.
Mr Foxon took the plaintiff to obtain medical assistance. The plaintiff was given ice packs which were placed on his neck and lower back.
The plaintiff in cross-examination said that his body had been moved from left to right in the incident. He said he had not told anyone what happened to his body in terms of movement.
There were reports prepared subsequent to the investigation of the incident. The plaintiff said he had read the reports prepared. He said that in one of the statements there was a reference to Mr Scanlan blindside loading. He did not believe that Mr Scanlan had been blindside loading but had not sought to correct or bring that matter to the attention of those investigating the incident.
The plaintiff agreed he had not complained about the incident or reported it immediately after its occurrence. In relation to Mr Scanlan, he had not complained to him because the plaintiff felt he (Mr Scanlan) knew what he had done.

64	It was put in cross-examination to the plaintiff that the altercation with Mr Scanlan had not occurred at the go-line. The plaintiff maintained it had occurred and that he had told Mr Peter Taylor about it.
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The plaintiff agreed he did not tell Mr Scanlan that there had been an impact.

It was the plaintiff's evidence in examination-in-chief that he had remained at the mine site for six days after the incident taking eight Panadeine Forte per day and not working. He gave evidence that when his six-day swing (shift) had come to an end he had flown to Perth and subsequently to Broome where he had attended upon a medical practitioner and been prescribed medication.
The plaintiff accepted in cross-examination that the sequence of events following the incident was that his shift had ended on 18 November 2009. He had then returned to Broome by road. The trip took six hours. On 27 November 2009 he returned to Yarrie. On 9 December 2009 he flew to Perth to see a Dr Saleh. Later in December 2009 he returned to the site but left on 24 December 2009 because he 'had had enough'.
The plaintiff's evidence was that between the date of the incident and the date he finally left Yarrie he had attempted to return to work. The return to work had included some truck driving and the performance of some light duties. Truck driving aggravated the injury. The attempted return to work had ceased because of a cyclone which resulted in a closing down of Yarrie. The plaintiff gave evidence that the light duties he was engaged in involved completing pre-starts and doing some work with documents. The work had only lasted for a couple of days. The plaintiff said that the truck driving he did in this period was for two hours a day but his back became sore. Following his unsuccessful work trial the cyclone earlier referred to had come through Yarrie. On 24 December 2009 the plaintiff, at his request, left the site and returned home.
The plaintiff gave evidence that in 2010 he had had some physiotherapy to his back which provided only short-term relief. The physiotherapy and associated rehabilitation (Pilates) was for a few months.
The plaintiff did not return to work in 2010.
In 2011 he was engaged for two to three days per week performing light duties at Coventry's in Broome. This employment was arranged through a rehabilitation provider engaged by the insurers for Ngarda. Initially the work trial was for less than two hours a day. Subsequently it increased to four hours per day. The employment lasted for about three months. The plaintiff gave evidence that at the time he would regularly

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attend upon his general medical practitioner who provided pain relieving
medication.

The plaintiff has made no further attempts to work since his employment at Coventry's ceased. The work trial came to an end because the relevant worker's rehabilitation allowance for rehabilitation had been exhausted.
The plaintiff gave evidence he takes painkillers in the form of Tramadol and Panadol Osteo. He gave evidence that he found it hard to relax and can get a stabbing pain in his lower back. Walking up stairs would make his legs ache.
The plaintiff gave evidence that prior to the incident he engaged in hunting and fishing. As to household duties, he described that he did 'what the normal husband does'. He gave evidence he could not put a figure on the number of hours he would spend before the incident doing household chores. He said he was now limited in what he could do around the house. He said he now relies upon his 14-year-old grandson to do chores around the house. The plaintiff gave evidence his wife has a medical condition and as a result he does as much as he can for her.
The plaintiff gave evidence that in 2009 he wanted to own his own home. He did not have a retirement age in mind.
The plaintiff's evidence as to the impact of the injuries he suffered in the incident was not detailed. He gave very little evidence as to his work efforts subsequent to the incident and as to his capacity or otherwise to engage in employment.
The plaintiff's evidence as to the nature of his employment duties was as follows:
Now, at the moment you're quite able to drive a car, aren't you? - Yes.
And if you wanted to you could drive a truck, couldn't you? - If they got bitumen roads, yeah.
Sorry? - If they got bitumen roads.
All right. Well, the job that you were doing on the mine site didn't require you to lift anything heavier than 5 kilograms, did it? - No.
No? It didn't require you to squat, crouch or kneel? - Yeah. You squat to get underneath the truck and you do your pre-start underneath the truck. You look round, you bend here and there, all that sort of stuff.

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Right. Had the seat, had the large tyres. It didn't cause severe vibration or jarring of your spine when you operated it, did it? - After I was hurt, yes.
Sorry. I'm asking you about the nature of the vibration or the jarring. It didn't cause severe vibration of your whole body or jarring of your spine? - What - what are you saying about the tyres and everything?
I'm saying when you drove that truck you weren't subjected to severe whole body low frequency vibration or jarring of your spine. It didn't do that? - Before I got hurt, you're talking about? Before I got hurt or after I got hurt?
I'm talking about the vibration – I'm talking about operating the truck.
Operating that truck - - -? - Before I got - before I got hurt?
Didn't - well, any time. Yes, before you got hurt. It didn't expose you to severe whole body low frequency vibration or jarring of the spine? - Before I got - before I got hurt I was fine then. I was - I - you - you bounce around with that thing.
Yes. But you're not - you weren't subjected to severe vibration or jarring of the spine? - No. No.
Your job didn't require you to do frequent or severe bending or twisting of your back? - Only when you're getting underneath the truck, like I said. Yeah.
Well, frequent or severe bending or twisting of the back? - Well, no, not - - -
Not often? - Well, no, when you get under the truck and just check your pre-start underneath your truck.
It didn't require you to frequently walk up or down stairs unless you were having a smoke? - You go up and down stairs.
Well, not frequent? - No.
And the mine site's ground was kept fairly even so it didn't require you to frequently walk over uneven ground, did it? - Have - have you ever – I've been a surveyor's assistant on a mine site. I walked everywhere on a mine site and there's no level ground there.
Well, I'm asking you about the mine site where you walk. You didn't have to frequently walk over uneven ground? - No. We never - we never walked over uneven ground.
And you didn't have much climbing of ladders to do, other than the times you climb up to start, climb down again for smoko, up and down for lunch and up and down at the end of - - -? - That's right.

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- - - the day? - That's right.
So it wasn't much climbing either? - No.
Now, when you were getting help from APM people, at one point you told them, didn't you - or someone there - what your job involved, in terms of its physical requirements, didn't you? You were asked, well, what are the physical requirements of this job, or something to that effect, and you told them? - A - what, to a APM personnel?
Yes? -I was - like I said, I've seen that many, I honestly can't single one out and say I remember that incident or whatever. I must have seen about 10 girls come through that door.
One document I didn't ask you about - but you may not know anything about it anyway - is of - well, I'm instructed - is a photograph - - -? - Mm hmm.
- - - of part of the dump truck, which you didn't take. Did you, at any time after this incident, look at the dump truck to see if any damage had been done? - No.
Have you, at any time after the incident, seen a photograph that was taken of the tray of the dump truck? - No, not inside the tray.
Sorry, not - - -? - Inside the tray.
But have you seen any photograph of any part of the tray? - Yes.
Is that a photograph that you understand was taken by Mr Taylor? - No, not by - I - it was taken by Kim Croft, I think. That's the one you had in front of you.
One I had in front of me? - Yeah. That's the only photo I saw.
Well, do you agree there is a photograph that doesn't show very much damage at all? - I agree that I see that photograph.

I found the evidence of the plaintiff to be unconvincing and unreliable in a number of respects. He did not appear to have a good memory of events on occasions. There are a number of reasons for the conclusions I have reached as to his evidence.
There were inconsistencies in his evidence as to the incident itself. The plaintiff as part of the process of investigation of the incident made two written statements on 16 November 2009. The plaintiff's evidence was in some respects inconsistent with his contemporaneous statements. Later in these reasons, in considering the incident itself, the plaintiff's evidence and the statements are again considered.

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There were differences in the history obtained from the plaintiff by some of the medical practitioners who had reviewed him. As examples, Dr Carrivick had noted a report of predominantly right-sided low back pain whereas Dr Galton-Fenzi noted low back pain mainly on the left side. Dr Finch noted pain in the middle of the back. It is accepted that the taking of a history necessarily involves a process of communication and recording. Further, I accept that back pain can be diffuse and symptoms may vary from time to time.
I am satisfied that the incident itself resulted in minor damage to the truck. The plaintiff's description of the incident suggested a significant impact. However the plaintiff did not immediately report the incident and made no complaint to Mr Scanlan, the person he regarded as responsible for the incident. I do not accept the plaintiff's description of the incident.
There were inconsistencies between his account of the circumstances and contemporaneous documents received as exhibits. The accident reports referred to dusty conditions at the time of the incident. The plaintiff denied this to be the case. Mr Crofts, in the Ngarda Incident Report, made a handwritten note of dusty conditions and blindside loading. The plaintiff denied in his evidence any problems with visibility when reversing. In his contemporaneous statements he said he could not see well on his left.
Reliance was placed by the defendants upon the varying accounts of the incident given by the plaintiff to the medical practitioners who have seen him. Essentially, his account was one of an impact between the loader and his truck. However there were some variances in the account beyond that. For example, he told Dr Wong that his seat had bottomed out. He told a number of practitioners he had been shaken around. He told Dr Silbert he had been 'thrown about'. However those variations, in my view, were not significant.
The plaintiff's account of his movements in the days subsequent to the incident was inaccurate. It is clear he was not flown to Perth immediately after the incident. He was flown to Perth on 9 December 2009 after a period of rest and following a return to Broome. He accepted that to be the case. Yet he told Dr Finch, Dr Silbert and Dr Carrivick that that was the case.

84	The plaintiff has, notwithstanding his description of the effects of the incident, attended very few medical practitioners for treatment.
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The medical practitioners who have recently seen the plaintiff have essentially done so for medico-legal purposes.

I am not satisfied that the plaintiff is as affected by the injuries sustained in the accident as he outlined in his evidence.
The plaintiff's account of his condition from time to time varied in some respects with what has been recorded by medical practitioners.
Dr Silbert reported the plaintiff had told him he was pain-free at rest and when seated. He also noted the plaintiff reported a relative easing of symptoms or resolution of his back pain with sitting straight and resting, the avoidance of activities likely to be injurious to his back and with the use of his prescribed medication. In cross-examination the plaintiff denied he had told Dr Silbert he was pain-free when at rest and when seated.
In relation to the plaintiff's impairment Dr Galton-Fenzi noted a history in September 2010 of the plaintiff's condition being made worse by performing household activities. Dr McLaren made a similar comment in August 2011. Dr Silbert noted in his report of 12 April 2012 that the plaintiff reported undertaking 'activities of day-to-day living, assistance around the home and assisting his grandchildren with driving them to school. There is no indication that the plaintiff currently requires or will likely require in the future any form of social or other assistance or the use of aids or appliances'. Dr Silbert's evidence, when considered in the light of the evidence of Dr Galton-Fenzi and Mr McLaren, suggests some improvement in the plaintiff's condition. Yet the plaintiff denied that to be the case.
In all the circumstances I have concluded that the plaintiff is an unreliable witness and inaccurate historian. He does not have a good memory of events. Wherever possible I have sought independent confirmation of his evidence before acting upon it.

Other evidence as to liability
Witnesses called by the plaintiff

George Lucky gave evidence that in 2009 he was employed by Ngarda as a plant operator and safety officer at Yarrie. On 16 November 2009 Mr Lucky was present when an Incident Cause and Analysis Method (ICAM) investigation was carried out in relation to the incident. Mr Peter Taylor, Mr Gary Foxon and Mr Kim Crofts were also in attendance.

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Mr Crofts was leading the ICAM which was subsequently downgraded to an ordinary incident.
Mr Lucky gave evidence that on 16 November 2009 he was present when Mr Scanlan gave an account of what had happened. Mr Scanlan had appeared agitated. In examination-in-chief Mr Lucky said Mr Scanlan had told him he had been loading in an offside position where the boom of the digger was blocking his view of the truck.
Mr Lucky had seen Mr Taylor take photographs of the plaintiff's truck. It was Mr Lucky's evidence that Mr Taylor had not tried to take photographs of the inside of the tray.
Mr Lucky gave evidence that the process for new workers at Yarrie from induction to final assessment was under the direction of Ngarda employees. The trainers, supervisors and superintendents were all Ngarda employees. There was no distinction between the processes for Ngarda employees and labour hire employees. The labour hire people did not come on to site and do their own training or supervision.
Mr Lucky's evidence was in part imprecise. However his evidence as to the manner operations were conducted at Yarrie generally accorded with that of other witnesses and in that respect I accept his evidence as generally reliable.

James

Hillard

was

employed

Yarrie

Ngarda.

On 16 November 2009 he was operating a dump truck at Cattle Gorge having commenced in September of that year.

It was Mr Hillard's evidence that on 16 November 2009 he was sitting in his truck facing north. The truck was south of the operation of Mr Scanlan's excavator and the plaintiff's truck. He gave evidence he saw the plaintiff's truck reversing in a westerly direction underneath the excavator. The front of the plaintiff's truck was facing east.
Mr Hillard gave evidence the sun was in the north-west at the time and his truck was about 60 - 70 m away.
Mr Hillard's evidence was that Mr Scanlan was operating the excavator. As the truck was reversing Mr Scanlan had the bucket of the excavator in the air ready to unload into the truck. He said he saw the bucket of the excavator go into the truck's tray but could not see to what depth. Because of his own location Mr Hillard was unable to see into the

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back of the truck. Mr Hillard gave evidence that the bucket was travelling
in an anticlockwise direction at the time.

Mr Hillard gave evidence that Mr Scanlan put the bucket of the excavator into the back of the truck before the truck stopped. He then saw Mr Scanlan empty the load, pull the bucket out and put it on the bench. Mr Hillard gave evidence that Mr Scanlan had then put the ladder down on the excavator and jumped out. He had gone around to the front of the truck and walked up the stairs. He had then seen the plaintiff jump out of the cab. It was his evidence that Mr Scanlan and the plaintiff were talking to each other on the catwalk of the truck. The plaintiff had then gone back into the cab and Mr Scanlan went down the ladder and back up the side of the bench of the excavator.
It was Mr Hillard's evidence that the plaintiff had then moved off.
It was Mr Hillard's evidence that the plaintiff had got on to Mr Hillard's truck and they had a discussion about what had occurred.
Mr Hillard gave evidence that Mr Foxon had come to the pit and picked up Mr Scanlan. Subsequently Mr Scanlan had returned and operations recommenced.
Mr Hillard had been contacted about one and a half months before trial to give evidence. His recollection as to the time of the incident was that it was between 9.00 and 10.00 and 'during smoko'. It was his evidence he had had a statement and he 'kept on over reading the statement'.
Mr Hillard's evidence was in some respects unsatisfactory. His memory was not good. He had difficulty remembering the date of the incident. His evidence that the sun was in the north-west early in the morning was unconvincing. The position of the sun he identified was contrary to common experience and demonstrates his lack of clear recollection. Mr Hillard's description of the excavator bucket having gone into the bucket of the tray was unsupported by other evidence, which I accept. It was inconsistent with evidence as to the damage to the truck. Mr Hillard's evidence was that he saw Mr Scanlan go to the plaintiff's dump truck immediately after seeing Mr Scanlan load the truck. This was at the loading point when Mr Hillard was 60 - 70 m away at the go-line. The plaintiff's evidence was the impact occurred at the time of the first load and Mr Scanlan went to the dump truck at the go-line after the plaintiff had returned for a third load, having been instructed to go to the

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go-line. Overall, I found Mr Hillard's evidence unconvincing and I am
not prepared generally to rely upon it.

Dr Steven Chew is a chartered professional engineer and
ergonomist.
In June 2013 the plaintiff's solicitors instructed him in relation to three issues concerning the incident. Specifically, he was asked:

(1) What degree of force would have been applied to the dump truck when contact was made by the bucket of the excavator judging from the damage on the photo;
(2) What type of force would have been applied to the plaintiff
whilst he was in the driver's seat of the dump truck;
(3) From an ergonomic perspective could the damage shown on the photograph to the dump truck result in a spinal injury of which the plaintiff complains.

Dr Chew was unable to express an opinion in relation to the first two questions because of a lack of information.
Dr Chew provided a report dated 21 June 2013 in which he opined (par 38) as to the likelihood of contact between the excavator and truck having occurred. It was his view that if one of the teeth on the excavator bucket had made contact with the left rear end of the truck tray, the right side of the bucket most probably would also make contact with the side of the tray unless the operator stopped the slewing motion of the bucket at the instance the tooth made contact with the tray.
Dr Chew was asked about his opinion and gave evidence as follows:
Which essentially, at para 38, is that you are of the view that if one of the teeth on the bucket made contact with the left rear edge of the dump truck tray, the right side of the bucket most probably would also make contact with the side of the tray unless Mr Scanlan stop – stopped the slewing motion of the bucket at the instance that the tooth made contact with the tray? – Yes.
All right. Then arriving at that opinion, did you take – did you apply any expertise to come to that conclusion? – Yes, I did. I did a qualitative analysis on the trajectory of the bucket as it was being slewed around as assumed in the assumption. And I come to the view that the slowing – sorry, the slewing motion or slewing trajectory of the bucket will – can be probably be divided into two component – one is a vertical lifting component, one is the rotational in a clockwise direction component.

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Yes? – And if we project the position of the bucket as it was slewed on to a horizontal plane, it will – the motion would take the form of an arc and that arc was always moving towards the dump truck. So based on that analysis – qualitative analysis, I'm of the view that as the point where the – one of the – assuming one of the teeth – it would be the – the right side teeth, the leading edge teeth of the bucket, make contact with the – a top edge the tray, that bucket at that time will always be moving towards the tray at the same time. So – and because of the size of the – the bucket, being I think it's – it's – it's about two metre deep, two metre wide approximately – it's obvious – it's inevitable that after the tooth has made contact with the tray and if the slewing motion – slewing - - -

In cross-examination Dr Chew further explained his opinion. He said taking into account the relative location of the excavator and truck and the slewing direction of the bucket, the hypothesis that only one tooth would hit the tray of the haulpak was unlikely. In his evidence Dr Chew had referred to what was described as the defendants' hypothesis. The basis for what he referred to as the 'hypothesis' is the letter of instruction received by Dr Chew from the plaintiff's solicitors. In the letter of instruction the solicitors for the plaintiff had informed Dr Chew as follows:
The defendants have admitted that on 16 November 2009 that Reg Scanlan was operating an excavator and was loading the tray of the truck operated by our client with ore product. The defendants also admit that the excavator came into contact with the tray of the truck when the excavator was loading the truck. The defendants say however that the contact between the excavator and the truck was to the outside rear edge of the truck. The defendants say the contact occurred in dusty conditions when our client's visibility when reversing was reduced by the angle of the sun and our client was not able to communicate over the radio with Reg Scanlan.
The defendants also say that the excavator operator was blindside loading (swinging anticlockwise) which means he had a limited view to his right as the excavator boom was in the way; and conditions were quite dusty further reducing visibility. The excavator operator states he made an error and that he made contact with one of the bucket teeth when slewing over the rear of the tray.
Dr Chew was shown a photograph of the damage to the truck. In cross-examination he expressed the view that he was unable to say whether the damage to the dump truck had been caused by the tooth of the bucket or the bucket itself.

113	Neither counsel referred to the evidence of Dr Chew in closing submissions. The evidence is of limited value in the resolution of the
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issues which arise. Dr Chew, whilst referring to a 'qualitative analysis of the trajectory of the bucket', agreed that what he was saying was actually a matter of common sense. Relevantly, in cross-examination the following exchange occurred:
Dr Chew, is this what you're saying, there's an excavator that has a bucket at the front and when the bucket’s loaded, the teeth are pointing upwards? - Yes.
So if it's slewing in some way loaded across the back of a tip truck, the teeth aren't going to hit it because they're above the bottom of the bucket? - Sorry? No, that's not what I'm saying. I'm – I'm saying that that's the hypothesis that one of the teeth hit the left rear edge of the tray on the haulpak truck. All I'm saying is that taking into account what I understood to be the relative location of the excavator and the haulpak and the slewing direction of the bucket, the hypothesis that only the one tooth will hit the tray of the haulpak truck is unlikely.
Well, going back to image 3? - Yes.
If the bucket was loaded and all there was, was a tiny little scrape mark on the left-hand corner of the tray of the truck? - Yes.
The teeth wouldn't have been anywhere near it, would they? - It - it could get near it. I mean, it could come into contact with the edge of the tray, but after that, the rest of the bucket will also hit the - the right side of the bucket will also hit the try, that's what I'm saying.
Well, that's what I'm asking you? - Yes.
It's just a matter of commonsense looking at the picture, isn't it, that if the teeth are pointing upwards and you slew the bucket around clockwise - - -
STAVRIANOU DCJ: Like in - like in image 3 you're talking about?
HANCY, MR: Like in image 3? - Yes.
STAVRIANOU DCJ: That's what you're talking about, isn't it?
HANCY, MR: Yes. The bucket's going to hit the tray. It won't be the teeth, it will be the body of the bucket, isn't that just commonsense? - Well, if we look at it in - perhaps if you look at image 3 - or maybe we look at - can I suggest we look at image 2, your Honour, or Mr Hancy.
Yes - yes? - The – that's just what I understood to be the relative location of the - of the tray - sorry - - -
STAVRIANOU DCJ: Which one are you looking at, image 2? - Image 2, on the - the top picture, your Honour.

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So - so image 3 shows the bucket loaded, doesn't it? - Loaded, yes. Image
- - -
And Mr Hancy said - - -? - Yes?
- - - if it stays the way it's positioned in image 3, there is no prospect of the
teeth coming into contact with the tray? - Not in image 3.
HANCY, MR: That's what I'm saying? - Not in image 3, but I think - - -
STAVRIANOU DCJ: If it stays the way - if the bucket stays in that position - - -? - Yes, your Honour.
- - - it can't - it will not contact the tray of the bucket? - Yes, if it's that
position.
Tray of the truck? - If it is shown - if the position is as shown on image 3.
Right. Okay? - That is correct.
All right. So take us - you were going - you were telling Mr Hancy about image 2 now.
HANCY, MR: And image 2 is on page 493 of the trial bundle, page 7 of your report? - Ah.
STAVRIANOU DCJ: You're looking - - -
HANCY, MR: And that shows the bucket unloading into the tray of the tip-truck? - That's correct.
Where the teeth are pointing downwards this time? - That's correct. Now, my understanding is that the bucket was loaded when it hit the tray and it was being slewed from the left of the truck towards the truck and over the top of the truck. So image 2 show the unloading operation but the hypothesis I was led to understand is that the unloading hasn't happened yet. The bucket in fact was being slewed into position. So the bucket, if you refer to image 2 - - -

Dr Chew's evidence necessarily proceeded on certain assumptions as to whether the excavator was loading or unloading at the time of the collision. His opinion did not exclude what essentially became the defendants' propositions at trial. First, that there was only minor damage done to the dump truck. Secondly, that there was an impact between the excavator and the dump truck. Thirdly, at the time of the impact the dump truck was being blindside loaded.

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Witnesses called by the defendants

The operation of Yarrie was the subject of a considerable body of oral and documentary evidence.
There was general evidence as to the practices adopted in relation to training and qualifications of workers, supervision and control of work and safety procedures. There was also more specific evidence in relation to matters insofar as they concerned Mr Scanlan. The evidence came from the plaintiff, a number of employees of Ngarda and Mr Gary Philip Van Vliet, an employee of TSS.

Gary Philip Van Vliet

Mr Van Vliet was the recruitment manager for TSS between February 2007 and July 2010. I generally accept Mr Van Vliet's evidence. It was straightforward, honest and reliable. It generally accorded with other evidence. His role required him to find workers for clients. In that capacity he had placed about 30 permanent and temporary employees with Ngarda. Mr Van Vliet gave evidence that initially Ngarda had taken permanent placements. However, the situation changed to one where employees were placed initially on a temporary basis. This was because of TSS's fee structure. Essentially, where a permanent worker's employment did not continue Ngarda would have been required to pay the entire placement fee, whereas in the case of a temporary placement the fee would be adjusted to reflect the period of engagement. The effect of placement on a temporary basis was that the full lump sum fee would not be paid.
Mr Van Vliet identified standard induction and registration forms required to be signed by all temporary and permanent workers. It was Mr Van Vliet's evidence that without the documents being completed and signed the worker could not go to site. One of the documents tendered without objection was what is described as a casual employee agreement. That document contained terms and conditions of employment. Relevantly, cl 3 provided that during the period of an assignment the employee is supervised by, and must act in accordance with directions given by, the 'Client' with respect to defined working hours, safety regulations and the manner and proficiency in which the employee is to carry out his or her work. The redacted document related to another employee of TSS. However Mr Van Vliet's evidence was that it was a standard document all employees were required to sign in 2009. It was his evidence Mr Scanlan would not have been able to go to site without signing a document in that form.

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Through Mr Van Vliet the defendants tendered TSS Pricing Structure documents applicable for the placement of temporary and permanent employees. The charges made for temporary and permanent employee recruitment were different.
In 2009 it was standard practice for TSS to advertise for potential workers in the media.
Mr Van Vliet received a résumé from Mr Scanlan in relation to an available position with Ngarda as an excavator operator. The résumé was tendered without objection.
The résumé provided was detailed and comprised five pages. Under the heading of 'Tickets' appears, 'Load shifting licence – NWT0273, Large excavators'.
The employment history stated in the résumé is for the period between 1985 and 2009. Save for a period between 2001 and 2002, the history refers to Mr Scanlan working as an excavator operator. Under the heading of 'Machines Operated' there are a number of different excavators specified. There are three referees identified in the résumé and Mr Van Vliet conducted reference checks.
Mr Van Vliet's handwritten note as to reference checks he performed referred to Mr Scanlan's duties in his previous role as being 'general earthmoving excavator'. He noted in relation to performance at work that the report he received was that Mr Scanlan was above average. He concluded the documents with the following note:
Reg was a good solid worker. Has excellent skills on all earthmoving equipment. Got on well with the other workers.
Mr Van Vliet gave evidence that about two weeks after Mr Scanlan had started at Yarrie he rang him as a follow-up to see if there were any problems on site. Mr Scanlan had said there were no problems.
After Mr Van Vliet received the résumé and performed the reference check he sent it to Ngarda. Mr Van Vliet's evidence, which I accept, was that it was up to Ngarda whether persons were engaged. Mr Peter Taylor's evidence was that the human resources department of Ngarda would submit curriculum vitaes (CVs) for review by Ngarda superintendents and that from there 'we'd review the CVs and then form a shortlist and then we'd go from there'. Mr Taylor gave evidence that the

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decision as to whether a worker was brought to site was one made by
Ngarda superintendents.

I am satisfied based upon the evidence of Mr Taylor and Mr Van Vliet, which I accept, that it was a matter for Ngarda who was engaged to work at Yarrie.
Mr Van Vliet gave evidence that the expected period of engagement for a temporary worker was three months. The workers would usually commence as TSS employees working for Ngarda. Following the expiration of the three-month period Ngarda had the option to take the worker on a permanent basis and to be 'direct onto Ngarda's books'.
Mr Van Vliet said that a medical assessment of Mr Scanlan would have been required and, then following communication from Ngarda, flights to site and accommodation would have been arranged for Mr Scanlan by Ngarda.
It was Mr Van Vliet's evidence that when he conducted Mr Scanlan's reference checks he had been told Mr Scanlan was very good on the large excavator.
Mr Van Vliet was asked to describe TSS Westaff's role in connection with Mr Scanlan and he described it as being to get him to site. Once Mr Scanlan was on site he was under the control of Ngarda and was required to abide by their protocols and safety regulations.
TSS paid Mr Scanlan's wages whilst he was at Yarrie.
Mr Van Vliet gave evidence that there was no system of rules imposed upon workers sent to Yarrie. It was his evidence that in relation to excavator operation there was no training or instruction given to persons such as Mr Scanlan by TSS. TSS did not supervise any of Mr Scanlan's work when he was at the mine site. Mr Van Vliet's evidence was that once Mr Scanlan went to site TSS did not have any ongoing role. That evidence is consistent with other evidence in the case and I accept that to be the case.
It was Mr Van Vliet's evidence that a decision was made by Ngarda that Mr Scanlan was not to stay on site. Mr Van Vliet said after being told by Ngarda that Mr Scanlan was not to stay on site he had to call Mr Scanlan and inform him of Ngarda's decision.

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Mr Van Vliet had no role in investigating the incident involving Mr Scanlan and no employee of TSS had any role in that respect. Safety investigations on site were undertaken by Ngarda and BHP and not by TSS.
Mr Van Vliet gave evidence concerning the engagement of Mr Scanlan to work at Yarrie. He was asked in cross-examination about the relationship between Ngarda and the defendants and the terms of business which applied between them. He was shown printed forms of documents.
The plaintiff's submission was that the documents (exhibit 8, 9, 10, 11 and 1/653) received in evidence during Mr Van Vliet's cross-examination demonstrated a 'strong reservation of control in respect of the defendants' employees, of their candidates, what they call candidates, people like Mr Scanlan'. The submission, whilst acknowledging that Ngarda had substantial control on site, was that the defendants had reserved the power to exercise control. The reservation of power to exercise control was submitted to be relevant to the issue of vicarious liability. The submission was that there was a reservation of control regardless of which version of the terms was found to apply.
Exhibits 8, 9, 10, 11 and 1/653 were documents relating to the relationship between Ngarda and TSS Westaff.

Exhibit 11 bears a printed date of 28 March 2010 and names the client as Ngarda. Pursuant to that document Ngarda appointed TSS Westaff to undertake recruitment, selection and assessment of candidates. Mr Van Vliet was unable to say whether the document was the type of document that he had used. Exhibit 1/653 was in similar terms to exhibit 11. Exhibit 1/653 was dated 6 April 2011.
The starting point is that it must be established that the terms sought to be relied upon did apply to the relationship between Ngarda and the defendants with respect to the employment of Mr Scanlan.
There are a number of points which need to be made in relation to the terms. First, none of the documents produced related specifically to or in any way identified Mr Scanlan. Secondly, the documents produced were dated 28 March 2010 and 6 April 2011, both post-dating the date of the incident. Thirdly, I was not convinced on Mr Van Vliet's evidence that the terms were those applicable to the relationship between the second defendant and Ngarda.

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Mr Van Vliet's evidence was that he did not deal with the terms but was involved in pricing. He had not been involved in drafting the documents. The impression I formed from the cross-examination and re-examination was that he was very unsure as to whether the documents produced to him contained terms relevant to Mr Scanlan's engagement.

143	I am not satisfied on the evidence that any of the printed forms of documents produced did contain the terms of the agreement between Ngarda and the second defendant in relation to Mr Scanlan's employment.

Exhibit 1/653 was referred to extensively in closing submissions. The terms of the document include an acknowledgment by Ngarda that it 'accepts full responsibility to ensure the candidate is suitable for the position'. Further, TSS 'does not guarantee references or candidate information and is not liable for any loss caused to the Client if that information is not correct or is misleading'. These particular clauses support other evidence given in the case that the responsibility for selection of candidates was with Ngarda.
The terms further provide that Ngarda is responsible for safety. One of the items specifically relied upon provides that Ngarda shall not permit an inexperienced, unlicensed or unqualified temporary worker to operate any machinery, vehicle or other mechanical instrument without prior consent. The other terms referred to by counsel included one relating to permitting access to site by TSS staff for purposes including monitoring of progress. The clauses allowing access to the workplace need to be put in context. Ngarda was in control of Yarrie. TSS and the defendants had no power to give directions at all in relation to the work or how it was to be done at Yarrie. The terms of the documents are not inconsistent with a transfer of Mr Scanlan to Ngarda.
The oral evidence was very clear as to the control of work at Yarrie. The site was controlled by, and work done, under the direction of Ngarda. Mr Scanlan went to site on the basis his wages were paid by the second defendant. The second defendant sent an invoice to Ngarda which included a margin upon the amount paid to Mr Scanlan.
I accept the defendants' submission that none of the terms of any of the standard terms and conditions produced preclude the transfer of control in the relevant area for the purposes of the imposition of vicarious liability.

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Malcolm Linton Holmes

Between 2008 and 2012 Mr Holmes was a training coordinator employed by Ngarda at Yarrie. He has 25 years' experience in the operation of excavators and trucks.
Mr Holmes' duties at Yarrie included preparing training packages for the induction of workers including dump truck and excavator operators. He said in relation to the packages that they 'included, like, theories and practicals to deem people competent to work on site'. It was his evidence that operators of dump trucks and excavators were required to undertake a theory and practical assessment at Yarrie. The same process was adopted for Ngarda and labour hire workers.
Mr Holmes referred in his evidence to the operations manual for the EX2500 Hitachi hydraulic excavator. The operator's manual for the EX2500 excavator was tendered in evidence and contained 302 pages. One hundred and forty pages related to maintenance of the excavator. Mr Holmes said that it was standard practice for the operator to be provided with the manual to read. Thereafter if the operator indicated that he or she was happy that they understood the procedure a theory assessment occurred. The theory assessment was issued to all workers and was a generic safety assessment.
The plaintiff completed a general assessment and a specific assessment for the Komatsu 630E truck.
Mr Scanlan completed an excavator assessment.
Mr Homes gave evidence that a permit to train was issued after the training assessment. Thereafter an assessor should, as part of standard practice, have taken the operator for a walk around the machine and carried out a pre-start inspection of the machine. The inspection involved a safety check and a check of oil and coolant levels. The walk around would involve not only a safety inspection of the machine but also a further chance to ensure the worker understood the operation of the machine. This would give the assessor a better understanding as to the experience or competence of the worker with the machine and was also a safety matter. The walk around included what Mr Holmes described as 'challenge testing'. By that he meant the worker was tested to gauge their understanding of the machine.

154	Mr Holmes gave evidence that it was standard practice that upon completion of the pre-start the assessor would have got into the operator's
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seat of the excavator and carried out the loading procedure a few times in the presence of the trainee. The assessor and the trainee would then swap positions and the trainee would then have the opportunity to load trucks. The EX2500 excavator had a second seat. The length of time the assessor spent with the trainee depended upon the trainee's level of experience.

It was Mr Holmes' evidence that workers obtained a permit to train and subsequently began to operate machinery solo. However their work continued to be supervised. Ultimately, a final assessment was performed by the training department.
Following completion of a final assessment workers were then handed over to the supervisor. The labour hire company had no role in the training process whatsoever.
The duration a worker was on a permit to train varied between two weeks to six months.
Mr Holmes had operated the Hitachi EX2500 excavator together with a number of excavators identified on Mr Scanlan's résumé. He said the actual control levers in the excavators were exactly the same on all the machines. He did note that the cab layout was different on the machines, but the way the machines were controlled was identical. Whilst the layouts were different, there were no great variances between them. He acknowledged in his evidence there were size and capacity differences and the speed of operation was also a difference. He said he had probably 20 plus years' experience of operating excavators at mine sites.
It was Mr Holmes' evidence he had personal experience of excavator buckets striking dump trucks. This was, in his experience, a reasonably common occurrence. In this respect Mr Holmes said that the closer the excavator bucket was to the truck the more efficient was the loading process. It was his evidence that whilst production was a concern, it was not the major concern which was to operate safely.
It was Mr Holmes' evidence that truck drivers were not required to do lifting. On occasions they would experience severe jolting in performing their duties.
Mr Holmes gave evidence that he did have experience in the operation of giant excavators including a Hitachi EX2500. The weight of the empty bucket was 5 - 10 tonnes. The maximum weight of ore that could go into the bucket was 20 - 30 tonnes.

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Mr Holmes did not have a recollection of Mr Scanlan on site. It was his evidence that on occasions they were short of staff and this made the work 'really hard'.
Mr Holmes had no role or involvement in the negotiation of labour hire contracts between Ngarda and TSS. It was Mr Holmes' evidence that as a matter of practice in 2009 Mr Scanlan should not have been permitted to operate the excavator by himself without someone having gone through the loading and unloading procedure with him.
Mr Holmes was pressed in cross-examination concerning the assessment of excavator operators and the use of a generic assessment. He said in relation to that matter:
But as for the excavator assessment, like I said this one here was probably the one were running with at that stage, but we were constantly developing them. Once again, what you've got to remember with excavators is whether – if you're using an excavator in a mining scenario, whether it's a 60 tonne excavator or a 250 tonne excavator, it's the same process, they're just bigger machines. You dig the same way, you put your trucks in the same position.
Mr Holmes was a truthful witness. The impression I gained was he was experienced, competent and conscientious. His evidence was accurate and I have no hesitation in relying upon it.

Kim Stanley Crofts

Mr Crofts was the safety and training superintendent at Yarrie and employed by Ngarda between April 2008 and Christmas 2010. Mr Holmes reported to him. His role was to implement safety and training systems. Mr Crofts has experience in the operation of excavators and dump trucks. He was familiar with the type of seat in the plaintiff's dump truck. In his evidence he described the seats as being multi-adjustable with back support forwards and backwards. The seats could move up and down and were air adjustable.
Mr Crofts was the primary investigator of the incident involving the plaintiff and Mr Scanlan. He went to the site of the incident, interviewed the parties and looked at the truck and excavator. In that role he prepared an All Incident Report Form. He was present when Mr Scanlan and the plaintiff were interviewed.

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The following notation appeared in the report under the heading of 'Long Description of Incident':
During loading operations at Cattle Gorge 210/86 contact between DT27 and excavator EX5034 occurred. Truck 27 sustained minor damage to the LH rear corner of tray (see pic). The resulting impact caused soft tissue injury as diagnosed by company medic. Truck driver returned to work on light duties. Statement have been attached for review. NB Dusty conditions, loading from blind side, ex op still becoming familiar with new m/l: operator error.
Mr Crofts made a handwritten note in the report as follows: 'Minor scrape on rear, LHS of tray. Contact by bucket tooth'. Mr Crofts gave evidence that his note was based on information provided by Mr Scanlan. Similarly, a reference in the report to 'blindside loading' was based upon what Mr Scanlan and the plaintiff had said. The incident report also contained a reference to the existence of 'dusty conditions'.
Mr Crofts had inspected the truck and saw a minor scrape on the rear left-hand side of the tray.
The evidence of Mr Crofts was not challenged to any significant degree and I have no hesitation in accepting his account of events. His evidence was cogent and straightforward.

Peter Ronald Taylor

Between 2009 and 2010 Mr Taylor was the mining superintendent for Ngarda at Yarrie. He has considerable experience in mining having been employed in the industry for 40 years. He also has qualifications in mining.
At Yarrie he was responsible for the daily mining process. He would report to the quarry manager and to the project manager.
The dump trucks at Yarrie had a number of features that provided protection from vibration. Mr Taylor said that the dump truck tray was attached to its chassis which moved on the suspension system. The seat moved independently of the cab and the truck and in a vertical direction. The cab could move independently of the truck tray. The cab would move in unison with the chassis.
It was Mr Taylor's evidence that at Yarrie there was no differentiation between a labour hire worker or a Ngarda worker. Most of the labour hire workers were truck drivers or plant operators and comprised only a small percentage of the workers on site. There was

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Mr Scanlan and two or three others. No labour hire employee had come on site to check the way the work was done or how it was done.

Labour hire employees did not have control over any operations at Yarrie. Mr Taylor gave clear evidence Ngarda employees were in control of what happened at Yarrie.
Mr Taylor's evidence was that there was no differentiation on site between a labour hire worker and a person engaged directly by Ngarda. He gave cogent evidence, which I accept, as to the manner of operation of Yarrie. His evidence was as follows:
Now, did any labour hire staff have control over any operations on the site? - Not to my knowledge.
And by that, I mean apart from driving trucks - - -? - Apart from operating machinery - - -
- - - and driving excavators? - Yeah.
Apart from that? - That's - that's - that's the limit of their exposure.
What - what employees of what company then control what happened at site both what was done and how it was done? - Ngarda.
Ngarda and only Ngarda? - Yes.
Who controlled site conditions including dust and level of dust? - Again, if it was a safety issue anybody could stop the mine from operating if dust was considered too dangerous for operations to proceed. Everyone has that right and that's a right under the Mines Inspection Act but typically, that was left up to the mine's superintendents and - and mine's supervisors.
Employees of Ngarda? - Employees of Ngarda and also BHP superintendents and safety personnel.
But who controlled the mining work, the way - both the way it was done and how it was done? - That was purely Ngarda.
Purely Ngarda? - Yes.
Who controlled safety matters? - That was done - - -
Well, I've asked you that? - Yeah. Ngarda looked after that but there was -
BHP had a safety presence on site as well so they worked jointly.
And everybody had a safety role? - Yes, and everybody has a role, yes.
And who controlled training of personnel? - That was Ngarda. So we had a training department.

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Purely Ngarda? - Yes.
Who controlled the system and methods of communication between workers when they were carrying out your operations on site? - That would be mine superintendents and mine supervisors.
Employees of who? - Of - of Ngarda.
Ngarda employees again. Who controlled questions of coordination of work between workers on site? - Ngarda.
And if an incident occurred and a safety investigation was carried out, who undertook that? - Depending on the severity of the incident, typically Ngarda would commence the proceedings and then the investigation would continue. If the incident was considered serious enough, they would conduct an ICAM which is a higher level investigation.
And who's that? - That would be done with Ngarda and BHP and then they would call in other investigators from other sites.
Right. Did you ever participate in an incident investigation? - Not in an
ICAM, no.
But a lower level? - Lower levels, yes.
How many - how often? - I think in the 12 months I was there probably -
I'd only be guessing. It would be two or three.
More than one? - More than one, yes.
And in any of those, was - did the labour hire company representative have a role? - No.
Did the labour hire company have any safety regime that applied at the mine? - No.
…
All right. Were you - did you have - have any knowledge of any safety rules that were applied at the mine and imposed by a labour hire company? - No, not to my knowledge.
Not - not even to labour hire employees? - No. Once you come on site, you abide by the site rules and the site rules are determined by the - the contractor that you work with and/or the client.
Did you do any physical supervision of the way work was done and how it was done yourself in that period that you were working at the mine? - Yeah. As a superintendent, we try to get involved where we can. If there's an efficiency issue or a safety issue, we - we talk to people. We try and mentor them on better ways to do things.

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Did you ever observe anything about the way work was done? - Yeah, all the time.
How did you do that? - By observation and that observation was done from strategic lookout locations around the active mining areas and/or while we were driving around.

Mr Taylor said that as supervisor he would make observations of work being done from what were described as strategic lookout locations or whilst driving around Yarrie. One observation post was near Cattle Gorge. He had seen Mr Scanlan carry out his duties on numerous occasions.
Mr Taylor gave evidence that on a couple of occasions he had spoken to Mr Scanlan about the 'methodology of splitting benches and how to set the digger up to load more effectively'. He had given directions about splitting the benches because the work was not being done as efficiently as it could be by Mr Scanlan. It was Mr Taylor's evidence he had no cause to think Mr Scanlan did not know how to operate the excavator and considered that he was an efficient and proficient excavator operator. It was Mr Taylor's evidence that Mr Scanlan had had experience on smaller excavators. However it was just a question of familiarisation with the systems in each excavator. He referred to there being idiosyncrasies between excavators but, as noted, considered Mr Scanlan efficient and proficient on the Hitachi.
Mr Taylor said that a typical bucket of a Hitachi EX2500 excavator at Yarrie would lift approximately 50 tonnes of ore. The bucket size was reduced to 50 tonnes because of the specific gravity of the material that was being moved. When that weight was dropped into the back of a truck it would move around quite significantly.
It was Mr Taylor's evidence that in 2009 at Yarrie there was in place a training system for workers such as Mr Scanlan. The system applied to all workers irrespective of whether they were a direct Ngarda employee or a labour hire employee and included the plaintiff and Mr Scanlan.
Mr Taylor's description of the training system was consistent with the evidence of Mr Holmes. It was Mr Taylor's evidence that there were two features of the training system. First, the provision of materials to enable an understanding of the machine and, secondly, being taken around the machine. When the worker was familiar with the machine he or she would then attend with a trainer. When a person was deemed competent they were issued a permit to train. Importantly, however, they would still

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be observed and monitored on a regular basis. The duration of the permit to train was variable but typically it would be for a period of several weeks. It was his evidence that training for excavator operators was on site. There was no evidence of some externally required qualification, certification or grant of a permit.

It was Mr Taylor's evidence that on a couple of occasions when he had doubts about a worker's ability he had required the worker to be re-trained and re-assessed. There had been one labour hire employee in this category.
Mr Taylor gave evidence that Mr Scanlan had gone through training and had a permit to train. He said that 'otherwise he wouldn't have been working'. It was his evidence that irrespective of whether they had come from another Ngarda site, they still had to be assessed on site.

The medical evidence establishes that the plaintiff has lost the capacity to be engaged in employment as a dump truck operator. The medical opinions that the plaintiff was restricted in driving a dump truck are essentially based on the notion that there may be an exacerbation of his symptoms. However, it is clear that from at least the middle of 2011 the plaintiff has had some residual capacity to perform some work with restrictions. Essentially those restrictions are to avoid heavy lifting, repetitive bending, standing and awkward spinal postures. In 2012 each of Drs Silbert and Fong considered the plaintiff to be unfit for dump truck operations but was fit for a range of duties with restrictions.
In cross-examination the plaintiff was asked about the restrictions and whether a particular activity was required to be undertaken in the course of driving a truck. He agreed he could drive a truck on bitumen roads. He is able to drive a car. The plaintiff's evidence was that driving a dump truck did not involve lifting weights over 5 kg. Driving a truck did not subject the driver to severe jolting or vibration of the spine. There was no requirement for severe bending or twisting. It was however necessary to check under the truck before commencement. There was no requirement to walk over uneven ground and there was not much climbing involved.
As well as working as a dump truck operator, the plaintiff has experience in a number of different occupations. He has worked as a machine operator, mobile plant operator, ranger, surveyor's assistant, environmental health officer and as the manager of a tourist complex. He has completed a number of courses including bush fire, fire control

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and first aid. He does possess a Certificate A and B in municipal law which would enable him to work as a ranger, which he has done in the past.

I am satisfied that the plaintiff does have a retained earning capacity. He is fit for a range of duties not involving heavy lifting, repetitive bending, standing and awkward spinal postures.
I have already outlined the evidence relating to the plaintiff's residual
capacity.
From when the work trial came to an end in 2011, the plaintiff has made no attempts to obtain employment within the limits of his capacity. Weekly payments of worker's compensation came to an end on 24 September 2011. From on or about that date the plaintiff has been on a disability pension.
A progress medical certificate dated 9 May 2011 certifies the plaintiff fit for a limited return to work between 9 May 2011 and 9 June 2011. A further certificate certifies him fit for work between 6 September 2011 to 30 September 2011.
Whilst the plaintiff did say he intended to keep working, I am not satisfied he would have continued working at Yarrie or a similar location to age 67. His personal domestic circumstances are that he provides some care to his wife and other family. In the circumstances, I consider it reasonable to calculate loss of future earning capacity to age 60 years.
The plaintiff has taken no steps to exercise his retained earning capacity. There was no evidence that he has been unable to find alternative employment, or that his condition has prevented him from finding alternative employment. This is not a case in which an evidentiary burden has been cast on the defendants to show what alternative employment opportunities are open to the plaintiff including the state of the labour market and likely earnings: Thomas v O'Shea (1989) Aust Torts Reports 80-251, 68701.
In the circumstances I consider that it is appropriate for me to take account of the plaintiff's retained earning capacity by deducting from the assessment of future loss of earning capacity, and in relation to part of past loss, a percentage amount which reflects his retained earning capacity: Bowen v Tutte (1990) Aust Torts Reports 81-043; Pene v Murphy [2004] WASCA 103 [5] - [6], [8], [29] - [30] and [74].

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The plaintiff has no formal training but has experience in a number of different kinds of employment. In my view, an award of 50% of the amount that would be awarded if the plaintiff had suffered a total future loss of earning capacity appropriately reflects the extent to which his diminution of future earning capacity will probably be productive of financial loss.
It is submitted on behalf of the defendant that if I am satisfied that the plaintiff's past loss of earning capacity has been productive of financial loss, I should find that the plaintiff has failed to take all reasonable steps to mitigate his loss: Watts v Rake (159). The defendants' counsel submitted that the plaintiff has failed to lose weight and to exercise to build up his physical fitness and strength, including core muscle strength.
The burden of proving that a plaintiff has failed to take all reasonable steps to mitigate his or her loss lies upon the defendant. Failure to take all reasonable steps to mitigate any loss bars the plaintiff from being compensated for that loss.
In considering the reasonableness of the plaintiff's conduct the test is objective, but depends upon the personal characteristics of the plaintiff including his or her state of knowledge at the time: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345, 349 - 352; Fontaine v Quality Platers (1994) 12 WAR 71, 78 - 79; Kalavrouziotis v Howel & Kalavrouziotis (Unreported, WASC, Library No 980219, 1 May 1998), 3 (Kennedy J), 8 (Wheeler J).
It is the case that a number of medical practitioners recommended to the plaintiff that he lose weight and increase his physical fitness. I accept he engaged in a rehabilitation programme in 2010 and 2011 until the funding stopped. Further, it is the case that the plaintiff was suffering back pain from time to time. This made it difficult for him to exercise. At least one of the medical practitioners gave evidence that losing weight and increasing fitness would have little impact upon prognosis. No specific programme to enable the plaintiff to lose weight or increase fitness has been identified. What the medical practitioners have said in a very general way is that the plaintiff should lose weight and get fit. In all the circumstances I am not satisfied that the plaintiff has failed to take all reasonable steps to mitigate his loss by losing weight and building up his physical fitness.

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Loss of amenities and pain and suffering

I consider for pain, suffering, distress, loss of enjoyment of life, loss of amenities of life and other items generally referred to as general damages, the plaintiff would be entitled to $30,000.
The CLA applies and, accordingly, the award in relation to this head of damage would have been $11,000 (Amount A of $19,000 to be deducted).

Loss of earning capacity

In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 [3], the High Court identified that a court in assessing loss of earning capacity must be satisfied as to two matters. The first of those requirements is the predictable one, that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damage for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is the 'diminution of ... earning capacity is or may be productive of financial loss' (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, 347).
Lord Diplock in Paul v Rendell (1981) ALR 469, 471, expressed the matter of assessment of economic loss as follows:
... The assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.
In Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638, the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said (642 - 643):
... When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred.
If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the

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case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as – say, over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
The adjustment may increase or decrease the amount of damages otherwise to be awarded: Mallett v McMonagle [1970] AC 166, 174; Davies v Taylor [1974] AC 207,t 212, 219; McIntosh v Williams [1979] 2 NSWLR 543, 550 - 551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

Brennan and Dawson JJ stated that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said (639 - 640):
Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
In Montemaggiori v Wilson [2011] WASCA 177, Buss and Newnes JJA said in relation to assessment of loss of earning capacity ([31] - [33]):
Whilst it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has unquestionably been reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages: State of New South Wales v Moss (552, 554). But where evidence ought to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of a low award: State of New South Wales v Moss (552); Minchin v Public Curator of Queensland (93).

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Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or the amount which could be earned in such employment. Thus, for example, in Bowen v Tutte (1990) Aust Torts Rep 81-043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-accident earning capacity. And in Pene v Murphy [2004] WASCA 103, it was held that the appellant's loss of earnings should be assessed as a percentage of his pre-accident earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.
Once the plaintiff has proved that they have lost their pre-accident earning capacity and have been unable to find alternative employment, or that their condition has prevented them finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Thomas v O'Shea (1989) Aust Tort Reps 80-251, 68,701 – 68,702; Setton v Eves [2006] WASCA 3 [27].

Past loss of earning capacity

The plaintiff submits that but for his injuries and residual disabilities he would be employed as a plant operator/dump truck driver with the defendant or similar mining company earning in the vicinity of $1,722 nett per week ($126,000 gross per annum).
The plaintiff claims that he is permanently unfit for his pre-accident duties as a plant operator/dump truck driver and is not fit for any work for which he is reasonably qualified by education, training or experience and that he has been so unfit since the date of the incident.
The claim for past loss of earning capacity was particularised at trial as follows: From 16 November 2009 to 30 June 2010: 32.3 weeks at $126,000 per annum = $78,290 gross ($59,779 nett tax). From 1 July 2010 to 30 June 2011:

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$126,000 gross per annum = $89,540 nett tax.
From 1 July 2011 to 30 June 2012:
$126,000 per annum = $89,030 nett tax.
From 1 July 2012 to 30 June 2013:
$126,000 gross per annum = $89,543 nett tax.
From 1 July 2013 to 1 August 2013:
$10,500 gross = $7,456 nett tax.
Total past loss of income = $335,348 nett tax ($446,790 gross).

I accept that the plaintiff has suffered a loss of earning capacity because of the injuries suffered in the incident. However he does have a retained earning capacity to carry out certain duties. In my view it would not be reasonable to calculate past loss from the date of the incident to trial in accordance with the plaintiff's calculations. During this period the plaintiff did have a retained capacity which was not exercised.
Dr Silbert saw the plaintiff on 5 April 2012. Dr Fong saw him on 24 May 2012. Each considered there was a residual earning capacity. In my view in the circumstances it is appropriate the plaintiff's past loss from 1 January 2012 to trial be reduced by 50% to reflect his retained earning capacity. There is some capacity before that date. In my view, a calculation based upon a loss of 50% from 1 January 2012 is a proper and reasonable assessment of the plaintiff's loss for that period.
Accordingly, the allowance for past loss of earning capacity is as
follows:

16 November 2009 to 30 June 2010: $59,779
1 July 2010 to 30 June 2011: $89,540
1 July 2011 to 1 January 2012: $44,515
1 January 2012 to 30 June 2012: $22,257
($89,030 x 0.5 x 6/12)
1 July 2012 to 30 June 2013: $44,771

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(0.5 x $89,543)

1 July 2013 to 1 April 2014: $33,552
(0.5 x $7,456 x 9)

Total: $294,414

Past loss of superannuation

The plaintiff submits that he was entitled to receive superannuation contributions from 16 November 2009 to date at 9% gross wages, less contributions he has in fact been paid. The calculation is as follows:
$446,790 gross x 9% x 0.85 (15% Jongen v CSR (1992) Aust Tort
Reports 81-192) = $35,709.
Total nett superannuation contributions received since the accident
= $12,448.
Total loss: $35,709 - $12,448 = $23,261.
I accept that there is an entitlement to past loss of superannuation at the rate of 9% on the gross sum. I accept the calculation should be made in accordance with Jongen and that a 15% deduction is appropriate. Some contributions are identified as having been made presumably by the plaintiff's employer. I am uncertain whether the contribution figure will require adjustment given the findings I have made. Further, the gross sum on the nett loss I have found requires calculation. Further submissions may be required. The past loss of superannuation can, if necessary, be the subject of calculation in accordance with my findings.

Future loss of earning capacity

The traditional form of calculation of future loss of earning capacity involves the application of an appropriate multiplier to a nett weekly loss.
The plaintiff's calculation is based on a nett weekly loss of $1,722 to age 67 years. It is submitted future loss should be calculated by application of a multiplier of 599.5 resulting in a sum of $1,032,339 (599.5 x $1722).
The plaintiff is nearly 50 years of age. As I have said, it is reasonable to calculate loss for a further period of 10 years. The multiplier for 10 years is 395. Accordingly, the financial loss which the plaintiff's future loss of earning capacity will be productive of, leaving

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aside for the moment the question of contingencies, can be calculated as
follows:
$1,722 net per week x 50% x 395 = $340,095.

The discount for ordinary contingencies is rarely more than 15% and usually between 5% and 10%: Villasevil v Pickering [2001] WASCA 143, 38. He may not have continued to work until he attained the age of 60 years. The degenerative changes in the plaintiff's spine may have become symptomatic. His wife was incapacitated and the work at Yarrie was at a remote location. These factors all lead me to conclude that a higher than usual deduction of 15% for contingencies is appropriate.
The loss after deduction of 15% for contingencies is $289,080.

Future loss of superannuation benefits

The plaintiff's gross weekly loss is approximately $2,423.
At the rate of 9% to age 60 years and after deductions for fund costs and taxation, the sum of $36,608 ($2,423 x 0.09 x 85/100 x 50/100 x 395) is derived.
The allowance after contingencies is $31,117.

Past and future gratuitous services

The claim in relation to past and future loss is for four hours per week. A rate of $30 per hour is claimed. There was no evidence as to that sum.
The plaintiff's evidence was imprecise as to the number of hours and services provided. Essentially, he did not accurately identify the services provided and the need for those services.
The preponderance of the medical evidence was that there was no need for the services. Dr Finch in January 2013 opined that the plaintiff did not require domestic and home help. Dr Carrivick was of the same view, as was Dr Silbert. Dr Fong considered that four hours per week domestic assistance and two hours gardening assistance was appropriate. I prefer the views of Drs Finch, Carrivick and Silbert. I accept that some services have been provided.
In all the circumstances only a very modest amount is called for. I allow $5,000 for past and future loss. Section 12 of the CLA precludes an award for this head of damage given the quantum of the assessment.

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Future medical expenses

The plaintiff's evidence was that he takes painkilling medication. Beyond that there was no evidence as to attendances upon medical practitioners.
The claim made is for $21,909 for recurring costs for general practitioner consultations, painkillers and anti-inflammatories, three specialist consultations per annum with an orthopaedic specialist, pain specialist or rehabilitation physician.
There was also a claim for future interventions in the sum of $5,000.
The claims made are unsupported by the evidence. Further, I am not satisfied that the plaintiff, given the history, will engage in any such treatment.
I am satisfied that an allowance should be made for medication and for some consultations and treatment.
I consider that a global sum of $5,000 should be awarded for this aspect of the plaintiff's claim for future medical expenses.

Fox v Wood component

The defendants agree that this component is $52,735 (Fox v Wood (1981) 148 CLR 438).

Past and future travelling expenses

There was no evidence as to any past expense and no particularisation of the claim. A global sum of $1,500 is claimed.
A modest allowance of $500 is appropriate.

Special damages

It has been agreed between the parties that, in the event of liability on the part of the defendant being established, the plaintiff will be entitled to, by way of special damages, $26,394.75.

Interest on past loss of earning capacity and superannuation

501	I would allow interest on past loss of earning capacity, superannuation and the *Fox v Wood* component at the rate of 3% over the period since the incident. The calculation may require adjustment for
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weekly payments of worker's compensation which have been made.
Accordingly, this sum may be calculated from my findings.

Summary of award

Pain and suffering and loss of amenities: $11,000.00

Past loss of earning capacity: $294,414.00
Past loss of superannuation benefits: To be calculated
Future loss of earning capacity: $289,080.00

Future loss of superannuation benefits: $31,117.00

Future medical expenses: $5,000.00

Fox v Wood component: $52,735.00

Past and future travelling expenses: $500.00

Special damages: $26,394.75

Interest on past loss: To be calculated

Conclusion

The plaintiff's claim against each defendant is dismissed.

6.1	to take all reasonable care for the Plaintiff's safety when performing his employment duties;
6.2	to take all reasonable care not to expose the Plaintiff to the risk of foreseeable injury when performing his employment duties.

8.1	The excavator operator failed to properly control the bucket of the excavator to ensure that the bucket did not smash into the tray of the truck;
8.2	The excavator operator failed to keep any or any proper lookout for the location of the Plaintiff's dump truck;
8.3	The First Defendant and/or the Second Defendant permitted the excavator operator to operate an excavator with which the excavator operator was inexperienced or lacked sufficient training.

6.1.1	He (Mr Scanlan) was selected by Ngarda;
6.1.2	His (Mr Scanlan's) services were provided on the basis that if he proved satisfactory within 3 months of commencing at the mine he would be employed by Ngarda;
6.1.3	Mr Scanlan's anticipated term of working at the mine was a number of months at least;
6.1.4	Ngarda supplied the excavator for Mr Scanlan to operate;

6.1.5	Mr Scanlan had experience operating 60 to 180 tonne excavators but was allocated to operate an EX2500 excavator which was a larger excavator than he had previously operated;
6.1.6	Mr Scanlan underwent Ngarda's induction training and a theoretical assessment and was observed by a trainer while operating the EX2500 excavator;
6.1.7	Mr Scanlan required and underwent training in how to operate the EX2500 excavator;
6.1.8	Mr Scanlan was issued with and worked under a 'permit to train';
6.1.9	Ngarda allocated a training officer to work with Mr Scanlan and instruct him in how to operate the EX2500 excavator;

(1)	The plaintiff;
(2)	James Lloyd Hillard;
(3)	Dr Philip Michael Finch;
(4)	Dr Philip James William Carrivick;
(5)	George Lucky;
(6)	Dr Kim Fong;
(7)	Dr Steven Chew.

(a)	Peter Ronald Taylor;
(b)	Ross Keith McLaren;
(c)	Malcolm Linton Holmes;
(d)	Kim Stanley Crofts;
(e)	Dr Joel Silbert;
(f)	Dr Brian Galton-Fenzi;
(g)	Amanda Kathleen England;
(h)	Gary Phillip Van Vliet.

(1)	What degree of force would have been applied to the dump truck when contact was made by the bucket of the excavator judging from the damage on the photo;
(2)	What type of force would have been applied to the plaintiff whilst he was in the driver's seat of the dump truck;
(3)	From an ergonomic perspective could the damage shown on the photograph to the dump truck result in a spinal injury of which the plaintiff complains.

16 November 2009 to 30 June 2010:	$59,779
1 July 2010 to 30 June 2011:	$89,540
1 July 2011 to 1 January 2012:	$44,515
1 January 2012 to 30 June 2012:	$22,257
($89,030 x 0.5 x 6/12)
1 July 2012 to 30 June 2013:	$44,771

1 July 2013 to 1 April 2014:	$33,552
(0.5 x $7,456 x 9)
Total:	$294,414

Pain and suffering and loss of amenities:	$11,000.00
Past loss of earning capacity:	$294,414.00
Past loss of superannuation benefits:	To be calculated
Future loss of earning capacity:	$289,080.00
Future loss of superannuation benefits:	$31,117.00
Future medical expenses:	$5,000.00
*Fox v Wood* component:	$52,735.00
Past and future travelling expenses:	$500.00
Special damages:	$26,394.75
Interest on past loss:	To be calculated

[2014] WADC 43

3 APRIL 2014