Kendrick v Bluescope Steel (AIS) Pty Ltd

[2007] NSWSC 1288

CITATION:	Kendrick v Bluescope Steel (AIS) Pty Ltd & Ors [2007] NSWSC 1288
HEARING DATE(S):	25.10.06, 26.10.06, 27.10.06, 30.10.06, 31.10.06, 1.11.06, 2.11.06, 3.11.06, 6.11.06, 7.11.06, 8.11.06, 9.11.06, 10.11.06, 13.11.06, 14.11.06, 16.11.06, 17.11.06, 20.11.06, 21.11.06, 22.11.06, 23.11.06, 24.11.06, 27.11.06, 28.11.06, 29.11.06, 30.11.06, 4.12.06, 12.3.07, 13.3.07, 14.3.07, 15.3.07, 16.3.07, 19.3.07, 21.3.07, 22.3.07, 23.3.07, 26.3.07, 30.11.07, 12.12.07, 17.12.07, 19.12.07
JUDGMENT DATE :	21 December 2007
JUDGMENT OF:	Hoeben J
DECISION:	There will be judgment in favour of the plaintiff against Bluescope Steel in the sum of $16,487,731. It is noted that the plaintiff is liable to repay Bluescope Steel the amount of $5,786,744 on account of its payment of the out-of-pocket expenses and weekly compensation.There will be verdict and judgment in favour of the plaintiff against ASMS in the sum of $16,650,699. There will be judgment in favour of Bluescope Steel against ASMS on its cross-claim in the amount of $8,243,866. There will be judgment in favour of ASMS against Bluescope Steel on its cross-claim in the amount of $8,325,350.
CATCHWORDS:	LIABILITY - Negligence of employer and contractor - accident within steelworks between oversize dump truck and domestic vehicle - failure by employer to provide safe system of work - failing to properly co-ordinate movement of traffic within steel works - failure to properly co-ordinate interaction of oversize and domestic vehicles on narrow stretch of road - CAUSATION vicarious liability of contractor for actions of truck driver failure of driver to stop when confronted with potentially dangerous situation - duty of haulage contractor to other drivers within the steelworks - whether breach of duty established - CONTRIBUTORY NEGLIGENCE - apportionment of liability between defendants. - DAMAGES - C5 quadriplegic - future physiotherapy needs - future psychological treatment - future hospitalisation - additional costs for holidays - future care - loss of capacity to care for children - application of s 15B of Civil Liability Act - fund management.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Mental Health Act 1958 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Protected Estates Act 1983 Workers Compensation Act 1987
CASES CITED:	Beale v The Union Steamship Co of New Zealand Ltd (1940) WCR 147 CSR Limited v Eddy (2005) 226 CLR 1 Czatyrko v Edith Cowan University [2005] 79 ALJR 839 at [12] Fairfield City Council v Petro [2003] NSWCA 150 Francis v Lewis [2003] NSWCA 152 Joslyn v Berryman (2003) 214 CLR 552 Malec v JC Hutton Pty Limited (1990) 169 CLR 368 Manley v Alexander [2005] 80 ALJR 413 at [12] Manufacturers Mutual Insurance Limited v St Lukes Hospital & Anor (CA unreported 14 August 1991) March v E & MH Stramare Pty Limited (1991) 171 CLR 506 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 PY v RSJ (1982) 2 NSWLR 700 Roads and Traffic Authority v Ryan [2005] NSWCA 34 Seltsam Pty Limited v McGuiness & Anor [2000] 49 NSWLR 262 at [119] Vairy v Wyong Shire Council (2005) 223 CLR 422 Weaver v Tredegar Iron and Coal Company Ltd (1940) AC 955 Wyong Shire Council v Shirt (1980) 146 CLR 40 Young Harness Racing Club Incorporated v The New Zealand Insurance Co Ltd (NSW SC unreported, 28 February 1991)
PARTIES:	Alan Kendrick by his tutor Erica Kendrick - Plaintiff Bluescope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Limited - First Defendant Australian Steel Mill Services Pty Ltd - Second Defendant Cooks Constructions Pty Limited - Third Defendant Komatsu Australia Pty Ltd - Fourth Defendant Webb Air Auto Electrics Pty Limited - Seventh Cross Defendant
FILE NUMBER(S):	SC 20379/2001
COUNSEL:	A Bartley SC/S Longhurst/F. Toscano - Plaintiff R Bartlett SC/G Parker - First Defendant D Rofe QC/B Hull - Second Defendant L King SC/R Cavanagh - Third Defendant J Kelly SC/S Torrington - Seventh Cross Defendant
SOLICITORS:	Maguire & McInerney - Plaintiff Ebsworth & Ebsworth - First Defendant Vardanega Roberts - Second Defendant Thompson Cooper Lawyers Pty Ltd - Third Defendant James Tuite & Associates - Fourth Defendant Wotton & Kearney - Seventh Cross Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 30 November 2007

20379/01 - Alan KENDRICK v BLUESCOPE STEEL (AIS) PTY LTD (formerly BHP STEEL (AIS) PTY LIMITED) and AUSTRALIAN STEEL MILL SERVICES PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff was employed by the first defendant (“Bluescope Steel”) as an operator at No 6 Blast Furnace in the steelworks at Port Kembla. On the evening of 5 July 2000 he had completed a twelve-hour shift and was driving his Falcon sedan intending to go to his home in Oak Flats. Between 6.55pm and 7pm a collision took place between the plaintiff’s vehicle and a 47 tonne Komatsu dump truck. The accident occurred while he was travelling north along Kembla Road, one of the internal roads within the steelworks. The Komatsu truck was leased by the second defendant (“ASMS”) and driven by one of its employees, Mr Phelps. As a result of the collision the plaintiff was rendered a C5 quadriplegic.

2 The plaintiff has brought proceedings in negligence against Bluescope Steel as his employer and as the operator of a large industrial complex having responsibility for the roads within that complex. He has brought proceedings against ASMS alleging negligence on the part of the driver of the Komatsu truck and negligence in the way it conducted its haulage operations within the industrial complex.

Factual background

3 In order to understand the nature of the plaintiff’s claim, it is necessary to set out in some detail the way in which Bluescope Steel conducted the industrial complex and the relationship between it and ASMS. It is also necessary to understand the circumstances surrounding the accident. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs.

4 Bluescope Steel under its former titles had for many years operated a steel manufacturing enterprise over 70 hectares at Port Kembla. Within the site numerous contractors were engaged in various commercial operations associated with the steelworks. Since approximately 1989 ASMS under a contract with Bluescope Steel was engaged in transporting slag from the blast furnaces to an operations area (Area 21) where the slag was processed for sale by ASMS.

5 Bluescope Steel operated the blast furnaces. At the blast furnaces the slag was poured into a large vessel called a pot. When the pot was full, a pot carrier vehicle picked it up and transported it to a slag pit adjacent to the blast furnace. The pot was then tipped so that its contents went into the pit. The slag was allowed to cool for a number of hours prior to water being poured into the pit. This had the effect of cracking the slag so that it could be more easily broken up by a front end loader and either stockpiled at the end of the pit or loaded for transportation. The slag was then taken to Area 21 which was within the steelworks and was controlled by ASMS. The slag was further processed in Area 21. Before the plaintiff’s accident vehicles known as Kress pallet carriers were used to transport the slag from the blast furnaces to Area 21. Caterpillar dump trucks had been used for this task before the Kress carriers. After the Kress carriers came on line, the Caterpillar dump trucks were used to supplement and as a back up for them.

6 The Caterpillars were large, unregistered dump trucks which were owned by ASMS. At the front, measured tyre to tyre, they were 4.040 metres in width and at the rear, measured tyre to tyre, they were 4.457 metres (exhibit 2D(32)). As will be seen they were not quite as wide as the Komatsu dump trucks. They were a left hand drive vehicle like the Komatsus.

7 There was no detailed evidence as to the dimensions of the Kress pallet carriers. It was accepted that they were narrower than the dump trucks. They appear to have been 4m in width. Mr Troughton, a manager employed by ASMS, said that he had seen them pass each other while travelling on Kembla Road. He described them as having “a small cab where the driver is centrally located” (T.505.33).

8 As part of its contract with Bluescope Steel, ASMS was required in 1990 -1992 to construct or strengthen roads within the steelworks which would be used by it for haulage purposes. It was necessary that the roads be of sufficient strength to take the mass of the vehicles used by ASMS for the haulage of slag. The design and plans for this construction/reconstruction were prepared by ASMS, submitted to Bluescope Steel for consultation and if appropriate, subsequent approval. Bluescope Steel paid for those works. After it had carried out the road-works ASMS had an ongoing contract with Bluescope Steel to maintain the roads, including the installation of signage.

9 While each of the contractors on site such as ASMS had considerable autonomy in how it ran its business, Bluescope Steel had the ultimate authority as to what happened in the steelworks. It provided a handbook of traffic rules to be complied with by all personnel working on site. Compliance with those rules was enforced by Bluescope Steel and penalties were imposed for breach. By way of illustration a speed limit of 50 kph was imposed on large unregistered vehicles such as dump trucks moving around the site. If ASMS wished to change its methods of haulage from using Kress pallet carriers to Komatsu dump trucks it required the approval of Bluescope Steel before it could do so. Bluescope Steel gave directions as to what signage it required on the internal roads. It could impose restrictions as to when and where vehicles could move on site.

10 In order to gain access to No 6 Blast Furnace from Area 21 it was necessary for vehicles to travel along Overpass Road into a roundabout and turn right into Kembla Road. They would then travel along Kembla Road and turn left into Caster Road which led to the blast furnace. When loaded with slag they would proceed in the opposite direction, ie down Caster Road, turn right into Kembla Road then left at the roundabout into Overpass Road heading towards Area 21. Workers from No 6 Blast Furnace seeking to leave the steelworks would follow a similar route down Caster Road and turn right into Kembla Road.

11 The accident took place on that part of Kembla Road between the intersection with Overpass Road (the roundabout) and the intersection with Caster Road. That stretch of road was rebuilt for 100 tonne capacity in September 1992. The road was constrained in width on one side (E) by a services easement containing an overhead coke ovens gas main, an underground saltwater main and high voltage electrical cables, and on the other side (W) by an open cut main drain. The width of the road was generally 10.1 metres but reduced to 9.1 metres where the collision occurred. This was to make room for a service duct entry on the Eastern side. The service duct intruded onto the road. There was no kerb or shoulder on the Western side and a flexbeam guardrail was installed at the road edge. There was a kerb on the Eastern side and short lengths of heavy duty steel sections on the kerb line were used as a guard rail at the location of the overhead gas main supports.

12 There was no centre line on Kembla Road. On each side of the narrow section (described in evidence as the “pinch point”) was a sign “Road Narrows”. A protocol existed between the ASMS truck drivers, including the drivers of oversize vehicles, of stopping if unladen to allow a loaded vehicle to pass the narrow section. Communication between drivers took place by way of radio or with the driver of the unladen vehicle flashing its lights. This protocol was known to ASMS management but does not appear to have had any official recognition. It had been informally worked out between the drivers.

13 At the time of the accident the plaintiff was working a 12 hour shift pattern. He had just completed his first 12 hour shift after a 5 day break. Before commencing to drive home he had showered and changed clothes. Wayne Phelps, the driver of the dump truck, was an employee of ASMS. He had just started his 12 hour night shift at 6pm after a 24 hour break following two day shifts. At the time of the collision he was approximately one hour into the shift. Accordingly fatigue did not play a part in this accident.

14 There was agreement between the parties as to the dimensions of the vehicles involved in the collision. With respect to the Komatsu dump truck the relevant measurements were:

Overall vehicle length - 9.12 metres.
Overall vehicle width (excluding mirrors) – 4.95 metres.
Overall vehicle width (including mirrors) – 5.10 metres.
Width of outer front tyres – 4.15 metres.
Width of outer rear tyres – 4.55 metres.
Height of headlamps – 1.80 metres.
Driver eye height – 3.5 metres.
The plaintiff’s vehicle was a white 1982 Ford Falcon sedan. Its relevant dimensions were:
Overall vehicle length – 4.74 metres.
Overall vehicle width (excluding mirrors) – 1.86 metres.
Vehicle height – 1.37 metres.

15 There was no damage to the Komatsu dump truck. The damage to the plaintiff’s vehicle comprised off-set damage commencing at the front offside corner and extending across the vehicle with the impact overlap range agreed by the experts as being greater than 200mm but less than 400mm. The point of contact was with the rear offside tyre of the Komatsu. The two vehicles were at an angle between 0° and 5° relative to each other at the moment of initial impact.

16 At the time of the accident the Komatsu dump trucks were part of a trial being conducted by ASMS to assess whether dump trucks should replace the Kress pallet carriers in the transportation of slag. Maintenance costs and injuries associated with the Kress carriers were making their continued use unprofitable. Preliminary testing with computer models and a single dump truck had proved successful. In early July (probably 3 July) the trial commenced using three dump trucks, two Komatsus and one Caterpillar. An additional Komatsu was kept in reserve.

17 The person from ASMS in charge of the trial (and whose proposal it was to use dump trucks as an alternative) was Mr Bakasetas, the then Operations Manager for ASMS. Before the trial could commence, the approval of Bluescope Steel needed to be obtained. The use of dump trucks was considered by a Bluescope Steel committee (Load and Haul Study). Mr Bakasetas was a member of that committee.

18 The matters taken into account by ASMS and Bluescope Steel when commencing this trial are set out in exhibits 2D(22), 2D(24) and 2D(25). From a safety point of view these included the increase in the number of vehicle movements together with the size and speed of the dump trucks. Although specific reference was made in the minutes of meeting to “passing together on Kembla Road” this seems to be a reference to the inability of dump trucks to pass each other at the narrow part of Kembla Road. Restricting the movement of dump trucks during shift changeover was considered but not implemented.

19 Bluescope Steel approved the trial of the Komatsu dump trucks. As a result of the consultative process, the Komatsu dump trucks were to be fitted with a “strobe light” on the front bumper and with extra reversing lights. The speed of the dump trucks was to be limited to 50kph.

20 Unlike the Caterpillar dump trucks, the Komatsus were leased by ASMS from Cooks Constructions Pty Limited. It was appreciated that the drivers of the Komatsus participating in the trial would need to be trained in their operation. The method proposed was that a representative from Cooks would train some ASMS drivers in the operation of the Komatsus and those drivers would then train other ASMS drivers as required. The training took about half a day. A number of drivers gave evidence in the proceedings. The effect of that evidence was that driving the Komatsus was similar to driving the Caterpillars. As can be seen from the dimensions both were oversize, unregistered left-hand drive vehicles.

21 In August 1994 K F Williams & Associates, consulting surveyors, prepared at the request of Bluescope Steel, a traffic management study relating to the impact of the opening of No 6 Blast Furnace (exhibit 2D(15) document 22). The study identified as a deficiency the extensive utilisation and integration of domestic and heavy vehicles along Kembla Road between the roundabout and Caster Road. It identified a potential conflict between domestic traffic and oversize vehicles. It recommended that Kembla Road be widened between the roundabout and Caster Road. Its characterisation of drivers and the environment is instructive:

“ The Driver
The level of competency of drivers within the Steelworks varies from professional heavy vehicle drivers who are familiar with the Steelworks environment to outside visitors with a low degree of confidence in driving amongst oversized heavy vehicles. In a response to this situation a higher level of reaction time of 2.5 seconds has been adopted in the calculations within report.
…
The Environment
The environment is likened to an urban situation with a high level of heavy vehicles and with low carriage definition (ie lack of kerbs and dim lighting at night). Small clearances to obstructions is common place, and this has been reflected in the adopted roadway capacity calculations.”

22 It was recognised that Kembla Road between the roundabout and Caster Road was very busy and was nearing its design capacity. In relation to carriageway widths, the report had this to say:

“ Carriageway Widths
Carriageway widths need to be considered when transport of material is by oversized vehicle. Oversized vehicles used within the Steelworks include:
(a) Kress Scrap carriers and low loader. These scrap-handling vehicles are 4 to 5m wide.
(b) Cat 773 Slag Dump trucks (or similar). These slag-handling vehicles are 4.1 to 4.7m wide.
(c) Kress Pot Carriers. These vehicles are 8 to 9m wide.
The present carriageway widths (restrictions) are shown on Figure 25. The recommended lane width for scrap and slag vehicles ((a) and (b) above) is 6 metres.”

23 The report described three options for the movement of slag from No 6 Blast Furnace:

“All three proposals use Kembla Road between intersections 1 and 2 (roundabout and Caster Road) in both directions. The average width of this road is 9.9m. From Table 7.2 it can be seen that this road is on the limit of its capacity and it is therefore suggested to widen it to 12m. Alternatives to this would be to construct a 6m lane on the eastern side of the gas main. Refuge bays could also be considered but is not recommended given the volume of traffic.
…
It is also recommended that slag haulage be restricted during change of shift to reduce conflict with domestic traffic. No slag trucks should use Kembla Road and Caster Road during peak hours, which have been identified as between 7am and 8am and between 2.30pm and 3.30pm.”

24 The recommendations relating to Kembla Road between the roundabout and Caster Road were not implemented except that the road was slightly widened on the Eastern side. The content of this report and its recommendations were not communicated to ASMS at the time when it was assessing whether dump trucks should replace the Kress pallet carriers in the transportation of slag.

25 There were no eye witnesses to the actual collision between the dump truck and the Ford. The plaintiff has no present recollection of the accident. His earliest recollection following the accident is of being in hospital, but even that recollection is hazy.

26 The closest there is to an eyewitness is Mr Phelps, the driver of the dump truck. At the time of the accident Mr Phelps had been driving dump trucks, Kress carriers and loaders and heavy machinery for about 5 years. He could not recall whether he had driven a Komatsu dump truck before the night of the accident. There is no record of him having done so. This may well have been the first occasion that he drove a Komatsu dump truck. If not, it was only the second time that he had driven a Komatsu.

27 Before driving the Komatsu Mr Phelps had been taken through a somewhat informal familiarisation process by another employee of ASMS. This consisted of a Komatsu dump truck being driven over to No 6 Blast Furnace where Mr Phelps was working. He was then allowed to familiarise himself with the controls. The differences between a Komatsu and a Caterpillar dump truck were pointed out to Mr Phelps and the other operators by the person who had driven the Komatsu to No 6 Blast Furnace. Mr Phelps did not regard the differences as significant.

28 On the night of the accident Mr Phelps had already picked up a load from No 6 Blast Furnace and taken it to Area 21. He was on his way back to No 6 Blast Furnace for his second load when the accident occurred. At the roundabout he waited for two other trucks to exit Kembla Road through the roundabout and then he himself entered Kembla Road.

29 His evidence in chief as to his observations thereafter was:

“A. Then I became aware of a vehicle travelling towards me heading north.
…
I did not actually see it turn on to the road I saw it coming – I became aware of it as it was travelling towards me. I continued down the road, there wasn’t any other vehicle on the road apart from myself and the vehicle travelling towards me. I paid attention to the car because it appeared to be a little off – what I’d call off the normal driving line. He, it seemed to be more towards the centre of the road than what a vehicle, well what a car would be driving on. I continued on.
…
I was on the left hand side of the road travelling along my normal line.
Q. What’s your normal line?
A. Well basically as close to the, to the side of the road, to the gutter as I can be.
Q. And what’s your ability to make that observation of being close to the gutters?
A. Well it’s a left hand drive vehicle so apart from being able to see the gutter I also have mirrors on the truck that can, using the mirrors, I can decide where I am.
…
I continued down the road, I was still watching the car that was coming towards me. At one stage I slowed down because I was aware that the car didn’t, wasn’t travelling on the normal, what I’d call the normal line of traffic. I continued on down the road then at another time I, I became aware of the car again for the second time, at that stage I slowed down using the footbrake, continued along then at a second stage, by this time the vehicle’s a lot closer to me, I slowed the second time and kept an eye on, sort of on the car and where I was in relation to the car. The car by then was reasonably close to me and I knew that shortly I’d lose sight of the car due to the -
Q. That’s in the blind spot, yeah?
A. Yeah there’s a certain point when you’re driving that, those trucks that when they’re beside you you lose sight of the car – of the vehicle that’s beside you. At that stage I decided the driver of the car would be, would be able to determine where he was.
…
At that stage I, I decided that he would, the driver of the car, would be better to judge where he was in relation to the guardrail and my truck, I decided at that stage that the driver would, being in control of his own vehicle he would be better to judge where he was in relation to me and the guardrail and such. I continued on. I thought I’d passed the vehicle, it was out of sight, I thought I’d passed the vehicle and there was a loud bang, if you like, a loud noise. My truck …
Q. Coming from where?
A. From beside, behind the truck, in the general area, I can’t be any more specific than that. The rear of the truck felt as if it had left the road, bounced up in the air, came down, the front of – at that stage my truck was no longer pointing down the road I was actually pointing towards what I believe they call Allan’s Creek.” (T.779-781)

30 Mr Phelps thought he was travelling at about 40kph when he first braked, which slowed him to 30kph and then after he braked the second time, he estimated that he would have been travelling at 20 to 25kph and that this was his approximate speed at the time of impact. He said it was his practice to drive as close to the gutter or to his side of the road as possible and in this case his estimate was that he was driving about 30cms away from the gutter. He said the brakes on the Komatsu dump trucks were very good.

31 In relation to how he drove around the service duct intrusion into Kembla Road, the evidence was:

“Q. You have to actually steer out and around it, I suggest?
A. I don’t make any sudden movements. I mean, I steer round whatever obstacle might be there, or on any road for that matter.
Q. So is this right, as you were approaching the pinch point from say 50 metres or so away, you would already have been at that point lining yourself up to go around the intrusion into your side of the road?
A. I, I couldn’t say. I, I can’t, can’t recall deliberately steering around anything. Obviously I have to manoeuvre around objects.
…
Q. What I’m suggesting to you is that the way that this road was configured at the time of this accident, with you going down Kembla Road in this oversized vehicle you were effectively forced to drive over the notional centre line in order to get round this intrusion on your side of the road?
A. I have to get round yes.
Q. And that involves you steering out and around this intrusion either by steering closely around it as you hug the Armco or lining yourself up perhaps a little bit further back so as to take it at a more gentle angle, do you agree?
A. I agree, yes, with the gentle angle.
Q. So would this be right, your usual practice in approaching this pinch point would be to set yourself up for the task of getting around the intrusion somewhat further back along Kembla Road so that you didn’t do any awkward steering around the intrusion?
A. Correct.” (T.796-798)
“Q. And then as you approached the narrower section, you would have to move to your right to avoid a collision wouldn’t you?
A. With the pylon, I have to negotiate that yes.
Q. And by moving to your right?
A. Yes I, I would gradually negotiate that pylon.
Q. So as you approached it, you would be occupying more of, increasingly more than half of the roadway?
A. I would have to, to negotiate the pylon, yes.
…
Q. Isn’t this what happened, that as you approached the narrower section you caused your vehicle to go to the right, not suddenly but gradually, to get through the narrower section, is that right so far?
A. I, I would gradually have to move over to negotiate that pylon, yes.
Q. So as you approached the narrower section, you had to change your line somewhat?
A. Travelling down that road to negotiate that pylon, at some stage I have to move over, yes.
Q. You never observed the car to change its line, I think you said that many times yesterday?
A. The car seemed to maintain the line that it was on.
Q. So your vehicle changed its line but the car didn’t, is that right?
A. I would have had to of changed my line at some point along that road to negotiate that pylon.” (T.865-866)

32 On the basis of that evidence I am satisfied that although Mr Phelps may have been driving as close to the eastern gutter as he could, when he was some distance to the north of the pinch point he commenced to gradually steer out to the right so as to be able to drive around the pinch point. This was done in a gentle and gradual fashion. In doing so the Komatsu would have crossed the notional centre line of Kembla Road.

33 Mr Phelps was extensively cross-examined as to the position of the plaintiff’s car:

“Q. To your recollection was there ever a point as you drive towards the plaintiff when as you saw him he was ever on his wrong side of a notional centre line?
A. From the time I first braked I was concerned about him driving off what I believed to be normal line that you would drive on in a vehicle of that size.
Q. Why were you concerned?
A. I was concerned because he didn’t appear to be driving on the line that I would think a driver of that size vehicle would be driving on.
Q. And what is that line?
A. Well to me it would be as close to the guard rail there as possible.
Q. So is this what you’re saying, at no stage to your observation did the plaintiff cross over the notional centre line your concern was that he simply wasn’t over as far as possible to his left hand side?
A. I thought he was using more of the road that his size of vehicle needed to take up to drive along that road.
Q. Was that concern formed in your mind because you knew that you would be taking up more than half of the road at the point when you reached the pinch point?
A. No it’s not, the pinch point, the so called pinch point wasn’t a point of focus for me. It wasn’t the only point of focus if you understand what I’m saying. I had concerns about the car from the time I saw it not driving on what I thought would be the normal line of traffic.
Q. But why was that of concern to you?
A. It wasn’t just the pinch point.
Q. But why was that of concern to you?
A. It was of concern I suppose because it was out of the ordinary.
Q. What you mean it was just some sort of curiosity rather than a safety problem?
A. Well you could say that, I was wondering why the vehicle would be travelling along that particular line.
Q. But Mr Phelps if you’re only …
A. When I first braked from that point obviously I became sort of more concerned.
Q. I can’t understand why you needed to brake at all if your only concern was that he wasn’t all the way to the left?
A. Because I was concerned.
Q. But why?
A. Because he wasn’t driving on that line that I thought he should have been driving on.
Q. In other words you had no safety concern in your mind at all?
A. Of course I have a safety factor somewhere in the back of my mind but when I first became aware of the car I was wondering why it wasn’t – why it was so far over.
Q. And when you drove on a bit further and then slowed down for a second time had anything changed, so far as the plaintiff’s driving was concerned?
A. He appeared to be on the same line, he didn’t seem to veer from one side or the other, he seemed to maintain that line of travel.
…
Q. But you say you slowed down for a second time?
A. Because I was concerned.
Q. And you can’t remember why you were concerned?
A. I was concerned because he wasn’t driving on that line that I thought he should have been on. So there was concern there because he wasn’t travelling on the line that I thought he should have been on.
Q. Could it have been that the basis for your concern was that if kept going in the direction that you were going and he kept going on the line that he was going there was a very real risk that you would come into collision in the middle of the pinch point?
A. No.
Q. Do you say that you didn’t have actually any concern about a risk of collision at all?
A. I never thought at any stage that I was going to be involved in a collision with the car.
Q. But you say you slowed down twice?
A. That’s right.
Q. But why if you had no concern about any risk of collision, would you slow down twice?
A. Because I found it strange that he wasn’t driving on that line, the normal what I would call the normal line that a car would travel on which would be as close to that left hand side as reasonably possible.
Q. When you first entered Kembla Road as a matter of courtesy, you stopped to allow the two trucks to pass, correct?
A. Correct.
Q. As you approached the pinch point and had these concerns was there any reason why you didn’t extend the same courtesy to Mr Kendrick’s car?
A. Well it was a car, it wasn’t a truck and the car doesn’t need the amount of space as two trucks passing. I suppose what I’m saying I considered there was plenty of room if the car was travelling on its normal line that a car would travel on.
Q. But it wasn’t travelling on its normal line you’ve told us.
A. That’s what I said, that’s what I believe I said.
Q. Is this right as part of your perception at the time you expected the smaller domestic vehicle to give way to the larger industrial plant?
A. No. I didn’t expect him to give way.
…
Q. What I’d like to suggest to you Mr Phelps is that the concern that you actually had and which caused you to slow down on these two occasions was that there was a risk of collision between your oversized vehicle and Mr Kendrick’s car?
A. No, I don’t believe so.
Q. So your recollection is that he was always on his half of the road?
A. No, I don’t believe he was on his half side of the road. I’ve said all along he was, I believed he was off the normal line of traffic for the car, off the normal line that a car would travel on.
Q. But this normal I thought, forgive me if I’ve misconstrued it again, but this normal line you had described, hadn’t you, as over as far as possible to his left?
A. That’s what I would imagine. Most cars travelling on that road or most vehicle on any road, would stay to the side of the road as, as possibly you could.
Q. Sir are you saying that he was in fact over a notional centre line travelling in your half or are you not?
A. Yeah, the notional centre line, I would say he was over that at that, where I saw him.
Q. Which point’s that? When you first braked or when you second braked for the second time?
A. The second time I suppose.
Q. So the second time you braked you actually perceived him to be on his incorrect side of the notional centre line?
A. I, I can’t say centre line, because the road obviously varies in width at different points, so I can’t, it’s impossible to imagine a centre line.
Q. Without the centre line you were in some difficulty were you, knowing just how to safely negotiate this pinch point with the plaintiff coming in the opposite direction?
A. I, I, I knew where I was on the road. I presumed that he knew where he was on the road in relation to the two vehicles.
Q. See, what I’d like to suggest to you is that what was actually going through your mind at this point as you braked for the second time was that here you were in a situation of potential collision with the plaintiff’s car?
A. At no time did I think that I was going to be involved in a collision with the car.
Q. Are you sure did brake on these two occasions?
A. I’m positive I braked twice.
Q. But your reason for braking, you say, had absolutely nothing to do with any concern about a risk of a collision?
A. I at no time thought I was going to be involved in a collision with the car. I presumed that the driver was aware of where he was and where I was in relation to the road.
…
Q. Well why did you brake at all if you weren’t concerned about a risk of a collision?
A. Because I was concerned that the driver was not driving on that normal line of traffic.
Q. And that there was therefore a risk of collision I suggest?
A. And I was wondering why, I was wondering why the car was driving on that particular line.
…
Q. Isn’t this right, you braked twice because you were concerned that the plaintiff’s vehicle was in a position which meant that the two vehicles were at risk of collision in this pinch point?
A. I can only say again that I didn’t consider at any time that I would be involved in a collision and the pinch point wasn’t, didn’t come into the situation.
Q. What I’d like to suggest to you is that in the circumstances where you saw the plaintiff’s car in the positions you’ve described and you had already braked once, the reasonable thing for you to have done when you saw that he was still in this line would be to stop?
A. If at any time I thought that I was going to be involved in a collision – hindsight’s a wonderful thing. I would have reacted differently of course. But at no time did I believe that I was going to be involved in an accident with the car.
…
Q. What I’d like to suggest to you is that the reason you stopped to let two trucks go by when you were at the top of Kembla Road was to minimise a risk of collision on a narrow road?
A. It was my practice to stop at the beginning of that road if there was a vehicle that was just about to exit that road, bearing in mind that that is also classed, I believe, as a crossing, a foot crossing so, and I’ve just negotiated a roundabout. So all these factors come into me stopping at the start of that road. I’ve just come round the roundabout so I was going slow anyway so to stop for 30 seconds to let two trucks leave the road is common sense.
Q. And so too would have been to stop instead of merely braking for the second time, to stop so as to let Mr Kendrick go through this pinch point?
A. Well as I said at no time did I believe I was going to be involved in a collision. If I had have I would have reacted possibly differently.
Q. Isn’t the simple fact of the matter that you saw the plaintiff’s car at a position which created in your perception a thought of danger and for that reason you braked not once but twice?
A. No.
Q. And isn’t it the position that really instead of braking down to 20 kilometres an hour on the second occasion the reasonable thing to do would have been to stop and afford Mr Kendrick the same courtesy that you had extended to the trucks earlier on the same road?
A. I hadn’t, I was three-quarters of the way down the road. When I stopped to afford the courtesy to the other two trucks I hadn’t started on that road. So for me to pull up in the middle of, in the – half way down or three quarters of the way down that road doesn’t make sense to me unless I had have known that I was going to be involved in an accident which I didn’t.” (T.801-807)

34 When cross-examined on the same topic by other counsel, the evidence of Mr Phelps was:

“Q. And at some stage whilst approaching that sedan you noticed that it was on, that is, the sedan was on an alignment that you would not have expected for a vehicle travelling in the opposite direction?
A. It didn’t appear to be on the normal line that the majority of the traffic takes, including the semi trailers.
Q. Would it be true to say that as you got further down Kembla Road you noticed that the car was not being driven entirely on his side of the road?
A. That’d be, that’d be correct.
Q. Was it your observation that it was in the centre of the road still mainly on its correct side, but off the normal line for traffic coming down the road?
A. It was off the line of, off the normal line of traffic. I wouldn’t say it was in the centre of the road.
Q. Are you sure about that?
A. I can only say what I, what I think. I wouldn’t think that it was travelling in the middle of the road. It was off the normal line, but I wouldn’t say it was travelling in the middle of the road.
Q. I thought you just agreed with me that when you noticed the car it was not being driven entirely on his side of the road?
A. It comes back to the, his side or my side. There’s no his or my side on that, at that stage on that road.
…
Q. Would it be true to say that the car was being driven approximately towards the centre of the roadway?
A. Yes.
Q. So would it be correct to say it was towards the centre of the road, but mainly on its correct side?
A. Yes.
Q. You see, cars travelling in the opposite direction generally stay well over to their side of the roadway, don’t they?
A. That’s correct.

Q. Closer to the western side Armco railing?
A. Correct.
Q. So there’s a fair bit of distance between the offside of the car and the side of our vehicle?
A. Correct.
Q. Similarly in relation to trucks or any other vehicle proceeding in the opposite direction, that’s correct, isn’t it?
A. Correct.
Q. This was unusual, wasn’t it, because the car coming in the opposite direction, rather than being close near the western side of the Armco railing was up towards the centre of the roadway?
A. It’s unusual.
Q. Well, that raised alarm bells with you, didn’t it?
A. I was wondering why it wasn’t travelling on the, on that, the line that most of the traffic travel on.
Q. And didn’t it raise alarm bells that first of all this is unusual? You’ve got to answer?
A. Unusual.
Q. And if this car keeps coming in the same direction it’s going to come awfully close to the side of my vehicle?
A. I, it was going to come closer to my vehicle than what other traffic would be if he maintained that line.
Q. Well, what line was the vehicle travelling on? Was it straight or was it angled or what was the situation?
A. It appeared to be travelling straight. It didn’t, didn’t want to stop.
Q. So it was travelling straight?
A. Appeared to be travelling in a, in a straight line.
Q. And were you travelling in a straight line?
A. I believe so, yes.
Q. You, of course, the operational controls of your vehicles on the nearside, the left hand side?
A. Correct.
Q. So to that extent you have to make an estimation as to where the off side of your vehicle is?
A. That’s correct.
Q. Including the rear tyres which you did know at that time overhang, or came out further than the front section of your vehicle?
A. I, I was aware that the back of the vehicle is larger than the front, yes.
Q. Well, you slowed down when you noticed this vehicle coming towards you, towards the centre of the road, to about 30 kilometres per hour you said?
A. Approximately.
Q. Why did you slow down?
A. Because I was curious as to why the vehicle, the car, wasn’t travelling on its normal line and the fact that 50 metres or so down the road I had to leave that road to go to 6.
Q. Did you slow down because you were concerned that if this …
A. I was concerned.
Q. … vehicle kept on its same alignment that it could come very close to the offside of your vehicle?
A. I was concerned that it would come close to the vehicle, the truck.
Q. You in fact, expected the car to veer away from you, didn’t you, veer to the left, back towards the western side of the Armco railing as it came close towards you?
A. I suppose it would be natural to think that. Whenever you come close to another vehicle, if you’re on a highway outside and you pass a semi trailer you tend to go to the left. It’s a natural instinct I suppose.
Q. Well particularly as this vehicle was so close to you towards the centre of the roadway. You expected it to go back to its, what you expected as the normal alignment?
A. I, I presumed he, he knew where he was on the road and that he had room to pass me safely.
Q. But he kept coming at the same line, didn’t he, after you’d slowed down to 30?
A. He didn’t seem to veer, yeah.
Q. So when he didn’t veer away from you, you slowed down again to 20 kilometres per hour, didn’t you?
A. I slowed twice.
Q. Well, why did you slow even further a second time?
A. I slowed the second time because I was concerned about the line that he was driving on and the fact that I had to turn left to go to 6 shortly.
Q. At that stage he still kept coming towards you partly on its incorrect side of the roadway?
A. I agree.
Q. Were the Komatsus fitted with a horn?
A. Yes.
Q. At that stage had it crossed your mind thinking “hello, this vehicle’s coming very close to me and I have slowed down twice. He doesn’t appear to be changing his line”, to give him a blast on the horn?
A. I didn’t, I didn’t believe it was necessary, because I didn’t consider the fact that I might be involved in an accident. I presumed that he knew where he was in relation to me.
Q. And I presume that’s the reason you didn’t stop?
A. Exactly.
Q. I mean, you appreciate you’re in charge of a very large vehicle at the time?
A. Correct.
Q. And you were travelling very slowly at 20 kilometres per hour?
A. Correct.
Q. If you had have applied your brakes to stop you would have been able to bring that vehicle to a halt in a short distance?
A. Correct.
Q. And in fact, after the accident you were able to do so?
A. Correct.
Q. And that the only reason you didn’t sound your horn or stop was because you thought that that vehicle, or the driver, or that vehicle was in a better position to judge where he was relative to you?
A. Correct.
Q. That’s because where he was driving would have been closer to your, the offside of your vehicle than where you were to the offside of your vehicle?
A. Correct.
Q. Because you were on the left hand side?
A. Correct.
…
Q. You would have expected him to have changed his alignment wouldn’t you?
A. Not if he knew where he was on the road.
Q. So you took a punt on him knowing precisely where he was in relation to the offside of your vehicle?
A. It would be a fair comment.
Q. And you took a punt on the fact that he was not distracted?
A. Well…
HIS HONOUR: I think putting a punt on it is probably putting it a little bit highly but he made an assessment.
COUNSEL: Q. Yes made an election or assessment as his Honour referred?
A. At that stage I knew I would lose sight of the car and I made a judgment that he was better to determine exactly where he was in relation to me and for me to make that call, he would have had a better view of the all round situation than what I had being that I was on the left hand side of the vehicle.
Q. When coming very close to the oncoming car you knew that it would be travelling in an area that would be blind to you?
A. That’s correct.
Q. So you at that stage would not have the opportunity of determining whether or not he was sufficiently safely away from the offside of your vehicle?
A. It would be right, that’d be correct.
Q. Your evidence is as I understand it, you don’t know where this accident occurred in relation to what has been described as the pinch point of the roadway?
A. No, I’m not …
Q. Please answer Mr Phelps?
A. I don’t know exactly on that road where the accident occurred, I, I can’t recall exactly where the accident happened on that road, whether it was just after the pinch point or at the pinch point or before, I don’t know exactly.
Q. Yes that’s what I thought your evidence was in chief, you don’t know where the accident happened?
A. No.
Q. In relation to the pinch point?
A. Exactly.
Q. Did you change your line at any point after seeing the oncoming vehicle?
A. No.” (T.814-819)

35 The last piece of evidence that Mr Phelps gave on this topic was:

“Q. You never observed the car to change its line, I think you said that many times yesterday?
A. The car seemed to maintain the line that it was on.
Q. So your vehicle changed its line but the car didn’t is that right?
A. I would have had to of changed my line at some point along the road to negotiate that pylon.
Q. Your belief was that if each of you had maintained your line then you would have missed each other?
A. That’s right, that’s what I believed.
Q. You said yesterday that you realised that even maintaining the line that each of you were following that you and the car would pass very close to each other, that’s right isn’t it?
A. I, I believe that we, we would pass each other closely.
…
Q. So even if you kept your line, you expected for safety’s sake that the car would veer to its left away from your line, didn’t you?
A. I didn’t expect the car to do anything, I suppose I can only go on my own experience when I’m passing a larger vehicle out on the highway, I automatically give it a little extra room if possible. What I’m saying if I’m travelling down a highway and I pass a semi trailer and there’s a, say for instance a narrow bridge, it’s only natural that you move to the left as far as you can to give that truck a little bit more space. I believe we all do that.
Q. And I suggest a second reason why you thought it would be natural that the car would veer away from you and that it is because you had changed your line so that if you continued your line as changed and if he continued his line there would be a collision, that’s the other reason why you thought it would be natural for the car to veer to its left, isn’t it?
A. I don’t agree with that.
…
Q. Mr Phelps isn’t this the case that you actually swung to the left before the impact?
A. I don’t believe that.
Q. You say that you were pointing in a straight line south along Kembla Road when you heard the bang?
A. I believe that to be correct.” (T.866-868)

36 Mr Billington was a Process Controller on No 6 Blast Furnace in July 2000. As he was getting into his car he observed the plaintiff driving out of the car-park. Mr Billington then drove along Caster Road, approximately 150-200 metres behind the plaintiff’s vehicle. When he looked to the right as he was turning from Caster Road into Kembla Road he noticed the headlights of a large truck moving on Kembla Road approximately 150-200 metres to the North of his position at the intersection. The lights caught his attention because there was dust and the beams were bouncing up and down. He then drove to the scene of the accident.

37 The only other witness who made any direct observation of the accident was Mr Whitely. Mr Whitely was a contractor who was driving an Isuzu truck north in Kembla Road shortly before the accident. He drove past the Komatsu without incident. His truck was 2.4 metres in width. He had already driven past the pinch point at the time when he passed the Komatsu dump truck. His evidence as to what he saw was:

“Q. Would you just tell his Honour, take it slowly, to the best you recollect what you heard, saw and did?
A. Well I, I was driving down Kembla Road when I passed the dump truck and just after I passed the dump truck, I realised I’d left something behind so I swung into the limestone stockpile there to make a …
Q. That’s doing a right hand …
A. To do a u-turn, made a right hand turn into there to do a u-turn to go back, when I heard this noise, an almighty bang and I looked out the window and I seen what had happened.
Q. What did you see?
A. I saw a white car there and a dump truck, sort of wobbled a bit and stop.” (T.739-40)

38 Although Mr Whitely saw the headlights of the plaintiff’s car in his rear vision mirror, he was unable to say how far behind his truck the plaintiff’s vehicle was. He was also unable to say where in relation to the pinch point the collision occurred. In relation to the position of the plaintiff’s vehicle on Kembla Road, Mr Whitely’s evidence was:

“Q. And in relation to the lights and their position on the Kembla Road, what do you say about your observation in the rear vision mirror?
A. Well they seemed to be on the correct side of the road.” (T.755)

39 There was an issue in the hearing as to how the evidence of Mr Phelps was to be interpreted. In relation to the position of the plaintiff’s car, Mr Phelps consistently said that it maintained a straight line and did not swerve either towards or away from him until he lost sight of it when it entered the blind spot on the offside of the dump truck. That evidence was not challenged.

40 His evidence as to the position of the plaintiff’s car, laterally, on Kembla Road was less clear. His initial description did not suggest that the plaintiff’s car had crossed the notional centre line of the road. What attracted his attention was that the plaintiff’s vehicle had not moved to the western edge of the road, but was maintaining a line more towards the centre of the road. He did not regard this as the line normally followed by cars.

41 On two occasions Mr Phelps agreed in cross-examination that the plaintiff’s vehicle was over the notional centre line in the road but on other occasions resisted that proposition. It is significant that his evidence in chief was not to that effect.

42 In my opinion a fair reading of the evidence of Mr Phelps is that he did not at any time observe the plaintiff’s vehicle to have crossed the notional centre line of Kembla Road. I have reached that conclusion for a number of reasons. It is consistent with the evidence of Mr Phelps that at no time did he consider that if he and the plaintiff’s vehicle continued on the same line they would come in contact with each other. It is consistent with the observation of Mr Whitely. It is consistent with the width of the dump truck and the fact that no contact was made between the front wheels of the dump truck and the plaintiff’s vehicle. It is consistent with Mr Phelps’ evidence of how the dump truck moved gradually to the West as it approached the pinch point.

43 The final position of the two vehicles following impact is shown in a number of photographs taken on the night of the accident. Security personnel employed by Bluescope Steel made measurements of various aspects of the accident site. Those measurements were transposed onto a plan which was attached to the joint experts’ report (exhibit 1D(6)). Whilst the authorship of that plan was never established, the experts agreed that the “indicative” positions of the vehicles following the collision on that plan appeared to be reasonably accurate.

44 The position of the plaintiff’s vehicle was approximately one and a half metres to the south of the point of impact in a north-easterly orientation. Mr Phelps had momentarily lost control of the dump truck following impact so that its final position was approximately 20m south of the point of impact in a south-westerly orientation. While there was general agreement between the experts as to the location of the point of impact from a north-south perspective there was considerable disagreement as to its location laterally, ie from an east-west perspective. The point of impact was approximately 5m North of the pinch point.

45 The general sequence of events can be reconstructed from the first defendant’s records. Mr Phelps reported the accident on his two-way radio as soon as it occurred. That message was relayed verbally to Mr Flannery, an ASMS supervisor, who telephoned the Bluescope Steel ambulance centre at 7.03pm. Security personnel from Bluescope Steel arrived at 7.06pm and commenced to secure the area. The Bluescope Steel ambulances arrived at 7.08 and 7.10pm. The NSW Ambulance and Rescue Service arrived at the north gate of the steelworks at 7.17 and 7.19pm respectively and were escorted to the accident scene, a drive of 2-3 minutes. The NSW Fire Brigade and Police Rescue were escorted to the scene at 7.24pm. The plaintiff was released from the car and taken to Wollongong Hospital at 8.09pm. Various marks on the road were marked with paint and the car was removed from the collision scene and taken to the Works Garage. The Komatsu was driven back to the ASMS workshop and parked. The road was cleared of debris, swept and hosed down and re-opened at 11.15pm.

46 It was submitted by ASMS that the collision occurred because the plaintiff did not see the dump truck. This submission and its legal consequences were based on statements allegedly made by the plaintiff at the scene of the accident.

47 Although the first person at the accident site was Mr Phelps, I am satisfied that he did not speak to the plaintiff before the arrival of Mr Billington. When Mr Billington arrived he observed the driver standing on the landing of the truck (T.269). Given his proximity to the accident and what he observed I am satisfied that Mr Billington was the next person to arrive at the accident scene.

48 It was Mr Billington’s evidence that Mr Phelps did not look very well and was a bit shaky. He observed Mr Phelps to sit on the ground with his back resting against the Armco guardrail. Mr Billington then spoke to the plaintiff. Mr Billington’s evidence was:

“Q. Then a little further on, you said that when you reached him, that meaning Alan “he was conscious, he recognised me and the first thing I remember him saying is ‘what happened, what happened?” is that correct?
A. Yes.
Q. Did you answer that question?
A. I didn’t know what happened, I may have told him the truck – he’d been hit by a truck. I assume I would have told him that at some time, that he was hit by a truck …
Q. On more than one occasion that you went back to Alan he asked you what happened, what happened?
A. He was uncertain what happened, I had several conversations with Alan, yes.
Q. But on each of those conversations, he asked you more than once, did he not, what happened, what happened?
A. Yes, he was confused about what had happened, yes.” (T.306-7)

49 It was also the evidence of Mr Billington that the plaintiff told him that he could not feel his legs and that he thought he was going to die. On a number of occasions he gave him messages to pass on to his wife and children telling them that he loved them. Mr Billington said that apart from the Bluescope Steel ambulance personnel he did not observe anyone else speaking to the plaintiff. There was, however, one occasion before the Bluescope Steel ambulance personnel arrived when Mr Billington was away from the plaintiff for about three minutes.

50 The next persons to arrive at the scene of the accident were Phillip Kent and Gerard Tedeschi. They were the drivers of the other two dump trucks which were following Mr Phelps to No 6 Blast Furnace. It was the evidence of Mr Phelps that before the Bluescope Steel ambulance arrived, he in the presence of Messrs Kent and Tedeschi, spoke to the plaintiff. The evidence of Mr Phelps was:

“Q. Tell us what he said and you said?
A. The driver said to me “What happened?” and I responded by saying “You’ve hit a truck”. And I also said “What, didn’t you see me?” and he said “No” and I said “What, you didn’t see me at all?” and he said “No”. Then I recall Phil Kent by this time more people had gathered and I was a wobbly on my feet and I believe it was Phil Kent, Phil Kent or Gerard put their arm around me to sort of, to hold me up basically and I moved to the side of the road and sat down”. (T.783)

51 Under cross-examination the evidence of Mr Phelps was:

“Q. And you say he then replied to you, what did he say?
A. He asked me what had happened. I said “You’ve hit a truck” and I said, he seemed maybe bewildered and I said, “Didn’t you see me?” He said “No” and I said “What, you never saw me at all?” and he said “No”, end of conversation.” (T.840)

52 Mr Phelps said that the plaintiff appeared to be relaxed, that he didn’t make any complaints of pain, nor did he ask that any message be passed on to his children or his wife. The police notebook entry made on the night of the accident recorded Mr Phelps saying: “driver of car stated that he did not see truck coming”.

53 The evidence of Mr Kent was:

“Q. What did you do and what did you see?
A. Well I just went over and grabbed Wayne and thought I’d try and get him away from it but he said he wanted to go back and see the person in the car.
Q. Yes, so what happened?
A. Wayne just went back there and was talking to him and the question was asked about “Didn’t you see me?” and then the answer was “No” …
Q. So we’ll call him Alan then?
A. Alan asked what happened. Wayne said “You’ve hit me … OBJECTION
Q. Yes, you may proceed, Wayne said?
A. Wayne said “Didn’t you see me?” and the reply was “No I didn’t see you”. (T.572-3)
“Q. No, Mr Kent you tell us what you heard?
A. What happened, when we got there, how long it took me to get to the car I don’t remember. But when I got there Alan said “What happened?” Wayne said “You hit my truck” or something like that. Wayne replied “Didn’t you see me?” and the reply was “No, I didn’t see you, I didn’t see you coming” and then that was it.

Q. Was that the end of what you heard?
A. That was the end of the conversation that I heard. The only other thing that was said is Wayne said “Did you hear that?” and I said “Yes mate I did” or somewhere along them lines.” (T.666)

54 It was Mr Kent’s recollection that Mr Tedeschi was not present at the time of that conversation. He agreed that the Bluescope Steel ambulance personnel had not arrived when the conversation took place. Initially Mr Kent thought he was the first person to arrive at the accident scene, apart from the plaintiff and Mr Phelps, but under cross-examination he was not so sure. Generally speaking his recollection as to the detail of what was happening at the accident scene was somewhat vague. He agreed that Mr Phelps was very distressed and “he’s walking around like he didn’t know what was happening”. (T.665)

55 In a statement signed by Mr Kent on 19 March 2001 the following is set out:

“I went to the car with Wayne, as he wanted to go over there to see the driver. When we got there the guy in the car, who I later found was Alan Kendrick, asked Wayne what had happened. Wayne said “What, didn’t you see me?” and Alan Kendrick said “No, I didn’t even see you”. Wayne asked him this a couple of times and Alan Kendrick kept on saying that he had not seen Wayne coming. Wayne turned to me and asked me if I had heard this and I told him that I did.”

56 The evidence of Mr Tedeschi was:

“Q. When you and Wayne went over to the car did you hear any words spoken?
A. There was words spoken, yes.
Q. What words did you hear spoken?
A. The words I heard were “Didn’t you see me?”.
Q. Did you hear any other words?
A. No, I’m going to say no.
Q. So the only words you heard were “Didn’t you see me?”
A. “Didn’t you see me”.
Q. Did you know who said that?
A. No, Wayne, I would say Wayne said that, yes.”

57 It was Mr Tedeschi’s recollection that when those words were spoken only he, Mr Phelps and the plaintiff were present. His recollection was that Mr Kent arrived after him.

58 The next persons to arrive were the Bluescope Steel ambulances. Ambulance two arrived at about 7.08pm and ambulance four arrived at 7.10pm. Mr Hojlund drove ambulance two and Ms Austin drove ambulance four. It was their evidence that the plaintiff was responding to what they said to him but his words were somewhat rambling. He was saying that he was going to die and was asking the ambulance personnel to remember the names of his children and to tell his children that he loved them. The plaintiff insisted on the ambulance officers repeating the names of his children. The plaintiff continued to be distressed and agitated while they were treating him. They said that from the time of their arrival until they were relieved by the NSW Ambulance Service, they were treating the plaintiff and no-one else spoke to him (T.1943-1946, 2092-2093).

59 The next persons to arrive at the accident were Messrs Marsh and Flannery. At the time Mr Marsh was a truck driver employed by ASMS and Mr Flannery was his supervisor. Messrs Marsh and Flannery were at the BOS (Basic Oxygen Smelter) when the message from Mr Phelps about the accident came in. Having made arrangements for ambulance and rescue personnel to attend, they both drove to the accident site. When they arrived they observed that Messrs Phelps, Kent and Tedeschi were present together with the two ambulance officers from Bluescope Steel.

60 The evidence of Mr Marsh was:

“Q. Did you hear any conversation?
A. I heard him say “I didn’t see the truck”, a couple of times, and then he was saying “get me out of here”.
Q. And who was present with you when you heard that conversation?
A. Mick Flannery.
Q. Yes?
A. And I think Phil Kent might have been there, and Gerard might have been close by.” (T.534)
“Q. Mr Marsh it is simply not true is it that you overheard the plaintiff saying anything to either Mr Kent or Mr Tedeschi, that is simply not true?
A. What do you mean?
Q. You did not overhear the plaintiff saying anything to Mr Tedeschi or to Mr Kent did you?
A. I heard the plaintiff say he didn’t see the truck.
Q. I suggest to you that you have made that up?
A. No.
Q. I suggest to you that Mr Kent and Mr Tedeschi could not have been with the plaintiff because by that time the ambulance officers were attending him. Is that true or false?
A. I don’t recall the ambulance officers but I do recall seeing Mr Tedeschi and Mr Kent there.
Q. If they were there, they must have been there at the same time as the ambulance officers, that is the BHP ambulance officers, mustn’t they?
A. I don’t recall seeing the ambulance officers near the car.” (T.568)

61 Mr Marsh signed a statement on 15 March 2001 (exhibit 2D(7)). In the statement the following was set out:

“Gerard and Phil were by the car and Wayne was wandering around, he looked a bit out of it from the shock. I went up to Gerard and Phil, Alan Kendrick the driver of the car was in the car and I heard him say a couple of times “I did not see the truck”, it seemed that he was talking to Gerard and Phil. Alan was moving his arms around and seemed to be trying to sit up in the car.”

62 The evidence of Mr Flannery was:

“Q. Do you recall seeing or taking part or hearing any conversation that anyone had with Alan?
A. Yes I went over to the car. I was at the car with Phil and Dave and Wayne and Wayne was pretty stressed out and I asked – I went down and I said to Alan, I said “Are you OK?” because everyone was in a panic. And he said “I didn’t see it, I didn’t see it” and that’s all he said to us. Then we sort of had Wayne and we tried to calm Wayne down because Wayne was pretty stressed at the moment”. (T.690)

63 As indicated I am satisfied that Mr Billington was the first person at the accident scene apart from the plaintiff and Mr Phelps. I found Mr Billington to be an impressive and accurate witness. His observations of the plaintiff accord closely with those of the Bluescope ambulance personnel. In particular I accept his evidence that the plaintiff’s initial query to him was: “What happened?” It also seems to me likely that Mr Billington responded either that he had hit a truck or that a truck had hit him.

64 I found the evidence of the ASMS personnel on this issue, particularly the truck drivers, to be somewhat unsatisfactory. The truck drivers appeared to be defensive in their demeanour when being questioned and to be very protective of Mr Phelps. While that is understandable it does affect the reliability of their evidence. The suggestion by Mr Marsh that the plaintiff was waving his arms and trying to sit up is fanciful.

65 It seems clear that Mr Phelps was most distressed. Accordingly his recollections of the detail of what happened following the accident are likely to be unreliable. There are a number of variations in the recollections of the drivers as to the words actually used by Mr Phelps and by the plaintiff and as to the surrounding circumstances. The evidence of Messrs Flannery and Marsh is inconsistent with the observations of the Bluescope Steel ambulance officers who were definite that once they commenced treating the plaintiff no-one else spoke to him. Mr Billington did not see anyone speak to the plaintiff other than himself and the ambulance officers, although there was a brief period when he left the plaintiff. Finally whilst the drivers appeared to have a clear recollection of the words that were said by Mr Phelps and the plaintiff, their recollection of other detail at the accident scene was extremely vague.

66 On that state of the evidence I am not prepared to find that the plaintiff had a genuine recollection at the accident scene of events leading up to the accident and of not having seen the dump truck. Given his distressed state at the time (clearly described by Mr Billington and the ambulance officers) if he did say something to the effect that he did not see the truck, such an assertion is consistent with him having no recollection at all of what happened and being influenced by what he was told had happened, ie he had been hit by a truck.

67 It is of significance that no question was ever put to the plaintiff to suggest that he continued to have or had had at any time a recollection of the accident. No medical evidence was tendered to explain how a person might have a recollection of an accident immediately following its occurrence but subsequently be unable to remember anything for a considerable period before the accident and for a considerable period thereafter.

68 There is also an inherent improbability in the plaintiff failing to see the dump truck. As the view revealed, it is an extremely large vehicle with bright headlights and a strobe light to its front. If a driver were looking ahead he could not fail to see the dump truck as it approached. Mr Billington was able to observe the dump truck at the time of, and immediately following the accident, from the intersection of Kembla Road with Caster Road – a distance in excess of 100 metres.

69 It follows that I reject the submission that a finding of fact should be made that the plaintiff did not see the truck, that this was the cause of the accident and that the only explanation for the plaintiff not seeing the truck was that he was distracted or was not otherwise paying attention to where he was driving.

70 Evidence was given by Mr Buchan who in July 2000 was the Superintendent of No 6 Blast Furnace. As of the date of the trial he had retired from Bluescope Steel. It was his evidence that meetings had taken place between Bluescope Steel and ASMS in which the timing of movements of oversize vehicles had been discussed. He said that by July 2000 there was an arrangement that oversize vehicles were not to move during shift changeover times. He gave evidence about a heated argument between himself and Mr Flannery on the night of the accident in which he was very critical of the fact that ASMS dump trucks had been on the road at the same time as private vehicles such as that of the plaintiff.

71 No-one else from Bluescope Steel supported the proposition that there was any restriction on the movement of oversize vehicles within the steelworks in July 2000. When it was put to Mr Cassar his response was that he could not be certain that such a restriction was in place before the accident.

72 A large number of witnesses were called by ASMS. Those witnesses comprised drivers, middle management such as Mr Flannery and senior executives such as Mr Troughton. They denied the existence of any restriction on the movement of oversize vehicles within the steelworks. That evidence is consistent with the internal investigation report prepared by Bluescope Steel following the accident. No mention was made in that report of any such restriction existing at the time of the accident. On the contrary one of the remedial steps taken by Bluescope Steel following the accident was the prohibition of the operation of dump trucks during shift changes.

73 If the operation of oversize vehicles had been prohibited during shift change times it is inconceivable that the Bluescope Steel internal investigation into the accident would have made no mention of it. I have concluded that no such prohibition was in place in July 2000 and that Mr Buchan was mistaken on this issue.

74 A joint experts’ report (exhibit 1D(6)) was prepared. It was dated 23 October 2006 and contained opinions as to how the accident occurred. The joint report identified those issues on which the experts were agreed and those on which they disagreed. An issue on which there was a clear disagreement between those experts retained on behalf of the plaintiff and those retained on behalf of the defendants was the lateral position of the vehicles at the moment of initial impact (issue 3 in the joint report).

75 The experts were agreed that the various diagrams produced by Bluescope Steel purporting to depict the point of impact and the right side edge of the car were unreliable. This was because the authorship of these diagrams was unknown and it would be dangerous to attempt to interpret what the diagrams were seeking to represent.

76 The experts took as their starting point the three road scars surveyed by Mr George in his inspection of the collision site on 14 December 2000 and positioned on the plan annexed to his report of 13 February 2002. The experts agreed that the advantage of using Mr George’s site inspection information was that it had been professionally recorded. This was despite the fact that the inspection took place five months after the accident. Mr George was a traffic engineer qualified on behalf of the plaintiff.

77 In his evidence Mr George said that the road scars, which he measured, had originally been marked with yellow paint but most of that paint had worn off by the time of his inspection. There was an issue in the trial as to whether those road scars had anything to do with the accident. The Court’s attention was drawn to the heavy use of the road during the intervening five months and the absence of any mention of the scars in reports prepared at and about the time of the accident.

78 I have concluded that the three road scars are associated with the accident. My attention was drawn to the minutes of a meeting held on 25 July 2000 by representatives from ASMS and Bluescope Steel (exhibit 2D(37)). Attached to the minutes was a memorandum from the Security Services Department of Bluescope Steel prepared on the night of the accident. Included in that memorandum was the following:

“I was also requested to attend pick up point 60 approximately 21:30 and meet an employee to get some aerosol paint which was delivered to Lima 1 and S/M at scene to use for marking the road at accident site”.

In the minutes the following was recorded:
“Alan visited site. Showed him the position of the car and truck where they came to rest and estimated impact point with gauge (sic) marks as shown to us by the Police crash investigations.
…
Take photos from the platform on the gas main
- mark with paint the impact point and positions of vehicles (wide angle lens).”

79 It seems clear that there were road scars observed at the accident site within a short time of the accident having taken place and various paint markings were made at the accident site. I am prepared to infer that the yellow paint observed by Mr George on the road scars which he surveyed formed part of that process and that consequently the road scars were associated with the accident.

80 As well as the report of Mr George of 13 February 2002 the road scars are shown in a number of diagrams which were prepared by Mr Bailey, an expert qualified by ASMS (exhibits 2D(29), (30), (35)). It was the opinion of Mr Bailey and Mr Keramidas (an expert qualified by Bluescope Steel) that the longest scar (located 4 metres east of the western kerb) was made by the anchorage of the off-side radius arm of the car. The opposing opinion of Mr George and Mr Jamieson was that this mark had been made by the front off-side jack point and sill panel of the car.

81 The dispute between the experts on this issue is not definitive on the question of negligence. The distance between the two components in the car was variously assessed at 15cms, 25cms and 43.7cms, ie 6,10 and 17 inches in imperial measurement. If the opinions of the defendants’ experts were correct the plaintiff’s vehicle would be between 15cms – 43.7cms further to the east than the position suggested by the plaintiff’s experts. The car would also be partially across the notional centre line of the road. This scenario is set out in exhibit 2D(30).

82 Since the issue was vigorously debated among the experts and since its resolution does impact on the question of contributory negligence, it is necessary that I reach a conclusion as to which of the competing opinions is correct.

83 Both sets of experts relied on the damage to the undercarriage of the car as supporting their point of view. Mr George was of the opinion that the longest of the road scars was too narrow to have been caused by the radius arm but its width was consistent with it having been made by the front off-side jack point. In support of the defendants’ position, their experts referred to photographs of the undercarriage of the car which showed aggregate and road base in the vicinity of the radius arm which was consistent with it having made heavy contact with the roadway.

84 The difficulty with placing such weight on observations of the undercarriage of the car was that such observations did not take place until mid 2006. By that time not only had six years passed with inevitable deterioration by way of rust and otherwise but the remains of the car had been moved on a number of occasions. This inevitably complicated the identification of what damage had been caused in the accident as distinct from what damage may have been caused after the accident during one of these moves. In the case of Mr Keramidas he had not actually seen the damage to the car but was relying upon photographs.

85 Messrs George and Jamieson were of the opinion that the nucleus of the debris and water from the radiator provided assistance when considering the lateral location of the car at the moment of impact. On the basis of the photographs, the debris and water would place the car further to the west and further to the north of the position identified by the road scars. The defendants’ experts disagreed on the basis that the gouging should be regarded as the primary evidence and that the debris was not directly caused by the impact but was brought about by “induced” damage following impact. Induced damage in that context means the displacement of parts through the forces of impact where those parts have not been directly impacted.

86 I have concluded that the opinion of the plaintiff’s experts is to be preferred to that of the experts retained by the defendants.

87 On the defendants’ interpretation of the road scars, the offside of the plaintiff’s car would have been partially over the notional centre line. We know from the dimensions of the Komatsu and from the dimensions of the road at the collision site that the off-side of the Komatsu would also have been across the notional centreline. On that scenario the plaintiff’s car would have come into collision with the front of the Komatsu not its off-side rear tyre.

88 The diagram prepared by Mr Bailey (exhibit 2D(30)) vividly demonstrates the problem with the defendants’ approach to this issue. The only way to have the plaintiff’s car partially over the notional centreline so that it does not collide with the front of the Komatsu is to have the nearside front wheel of the Komatsu hard up against the safety fence. On that configuration the rear nearside wheels would have impacted the safety fence if the Komatsu kept on going.

89 This was one of the reasons why the plaintiff’s expert, Mr George, disagreed with Mr Bailey’s diagram:

“I have already mentioned the reasons for my disagreement with Mr Bailey. There is one other reason that was borne out in his plan, that in my view would have the – for his scenario to be valid – it would mean that the dumper was – actually had no room to move going up through the pinch-point, in other words the left hand drive – the left hand steer would have been fairly much running along the side of the safety fence and if it continued it – the rear wheels would have struck the safety fence so, I mean, I wouldn’t have thought that a driver would – would drive a vehicle that – that close to a safety fence. It would mean that the actual vehicle was overhanging the safety fence on the left hand side, so that’s – that’s another reason why I would seem – that I would consider that would be an unrealistic scenario.” (T.1681)

90 Having the Komatsu in such a position is contrary to the evidence of Mr Phelps that some distance before the pinch point he commenced to gradually move to the west so as to clear the pinch point and that generally speaking he tried to maintain a distance between the nearside of the Komatsu and the safety fence of 30cms. It is also inconsistent with Mr Phelps’ evidence that at no time did he think that there would be a collision if the car continued on its line and he continued on his line. It is inconsistent with his evidence that the car was not across the notional centreline.

327 The evidence on this issue is unsatisfactory. This is not the fault of the parties. It would be fair to say that the complexities of s15B did not become apparent until addresses. No particular focus was given in evidence as to precisely what childcare services the plaintiff performed for each child or generally before his injury. Nevertheless, as I have indicated when dealing with s15B(2), there is sufficient evidence to establish pre-injury at least 6 hours per week of childcare services. This would inevitably have increased after the birth of Mikayla when most of Kathy’s attention would have been focused on the newborn child rather than the older children.

328 On that state of the evidence it would be speculative to assess anything more than 6 hours per week for loss of capacity to provide childcare services between the date of the accident and March 2005 when Kathy left the relationship. Up to that time Kathy had been providing almost all the childcare services needed.

329 Thereafter the situation is different. Had the plaintiff been uninjured and had Kathy withdrawn from the relationship, the plaintiff did have an additional capacity to devote to childcare services which I am confident he would have used to the extent that he was able. Taking into account the nature of the plaintiff’s work and his need for sleep in order to perform such work, I am still satisfied that on average particularly taking into account weekends, he would have had a capacity to spend at least 40 hours per week providing childcare services between March 2005 and March 2007 when submissions as to damages were made.

330 In relation to the past therefore I assess the plaintiff’s entitlement to damages for the past under s15B as follows:

(i) Date of accident to 25.3.2005 (6 hours per week for 6.7 years at $19.09 per hour)	$ 39,885.00
(ii) 31.3.05 – 31.3.07 (2 years at 40 hours per week at $21.77 per hour)	$ 90,563.00
$130,448.00

331 From March 2007 the situation is different. As the children became older the amount of care which they would require would rapidly reduce. By way of illustration the need for childcare would have reduced to zero by the time each child reached 17. Taking that into account I assess as appropriate an average of 15 hours of childcare per week for the next 10 years. I see no reason to discount that figure for vicissitudes. On that approach, the figure for future childcare is 15 hours per week at $22.64 per hour for 10 years, ie $140,221.

332 Accordingly I find that the plaintiff is entitled to damages against ASMS for loss of capacity to provide domestic services by way of childcare in the amount of $270,669.

Summary of damages

333 In accordance with the above findings, the damages to be awarded against Bluescope Steel are as follows:

Non-economic loss	$ 244,250.00
Loss of income Past Future	$ 347,672.00 $ 730,742.00
Superannuation	$ 100,902.00
Interest	$ TBA
Fox v Wood	$ TBA
Past out-of-pocket expenses	$ TBA
Indoor/outdoor maintenance, gardening services and car maintenance	$ 47,814.00
Personal care and mobility equipment	$ 589,000.00
Additional home/architectural claims including ongoing maintenance	$ 750,000.00
Additional motor vehicle expenses	$ 150,000.00
Ongoing treatment and medication	$ 261,904.00
Physiotherapy	$ 103,320.00
Psychological review and treatment	$ 150,000.00
Computer and home automation expenses	$ 175,000.00
Hospitalisation	$ 87,000.00
Additional holiday costs	$ 285,000.00
Care	$7,749,700.00

334 The damages to be awarded against ASMS are as follows:

Non-economic loss	$ 381,000.00
Loss of income Past Future	$ 347,672.00 $ 730,742.00
Superannuation	$ 100,902.00
Interest	$ TBA
Fox v Wood	$ TBA
Past out-of-pocket expenses	$ TBA
Indoor/outdoor maintenance, gardening services and car maintenance	$ 47,814.00
Personal care and mobility equipment	$ 589,000.00
Additional home/architectural claims including ongoing maintenance	$ 750,000.00
Additional motor vehicle expenses	$ 150,000.00
Ongoing treatment and medication	$ 261,904.00
Physiotherapy	$ 103,320.00
Psychological review and treatment	$ 150,000.00
Computer and home automation expenses	$ 175,000.00
Hospitalisation	$ 87,000.00
Additional holiday costs	$ 285,000.00
Care	$7,749,700.00
Childcare	$ 270,669.00

335 The final damages to be awarded against Bluescope Steel and ASMS cannot be calculated nor can the s151Z adjustment under the Workers Compensation Act be made until the gaps in the schedule of damages in respect of each defendant have been filled and an amount has been calculated for fund management.

Fund management

336 I have been asked by the parties not to determine a final figure for fund management but rather to make indicative findings which would enable the parties to reach agreement as to fund management. It is understood that in default of agreement between the parties it will be necessary for the Court to determine a figure for itself. In any event insufficient information is before the Court to enable such a finding to be made. Apart from anything else, the final figure for damages has not been calculated.

337 It is necessary to determine whether the Protective Estates Act 1983 applies to the plaintiff. Section 13(1) of the Act provides:

“13(1) Where the court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act.”

338 A similar provision under the Mental Health Act 1958 was considered by Powell J in PY v RSJ (1982) 2 NSWLR 700 at 702 where his Honour said:

“It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) That he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man;
and
(b) That, by reason of that lack of competence there is shown to be a real risk that either:
(i) he or she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re: an Alleged Incapable Person ); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transaction in the most efficient manner; see In the matter of Case (1915) 214 NY 199 at p 203 per Cardozo J.”

339 Dr Dragutinovich has seen the plaintiff more than any other medical practitioner. He did not express an opinion in his reports on this subject. In evidence the following exchange took place under cross-examination:

“Q. It is not just a question of entitlement is it doctor he has expressed a view which would suggest him wanting to be in control of making the important decisions in his life?
A. Well he may state that but the capability owing to his neuro-cognitive impairment for the reasons I have already stated in relation to his inability to attend to his financial affairs that incapability remains evident.
Q. Well your view as to his incapability of handling his financial affairs is upon the basis of cognitive incapacity?
A. That’s correct.
Q. So in other words you are saying brain damage?
A. Yes.
Q. He has not exhibited behaviour in the last 12 months or thereabouts which would indicate him being vulnerable to manipulation by others?
A. He is constantly exhibiting behaviours indicating vulnerability, particularly in the financial matters.
Q. In what way doctor?
A. Well in the way that he has not been able to keep track of the accounts, the way in which he fails to prioritise with respect to spending what he perceives as important as to what is less important. His inability to persist with any particular task for a long period of time. He also evidences impulsivity and rather spendthrift at times behaviour.
Q. Well can you give us an example of impulsive spendthrift behaviour in the last six months?
A. Well these are not the sorts of things that I have documented but – well one doesn’t come to mind at the moment.
Q. Well can you give us an example of his failure to deal with his accounts?
A. Well he has frequently commented to me that the way he just deals with accounts is to put them away and not deal with them until he gets repeated letters of inquiry.
Q. Is that in the last 12 months?
A. Yes well I think he has got assistance in relation to that now. Were it not for that I think that the old pattern would prevail.
Q. Well do you know about Kelly?
A. About -
Q. Kelly?
A. No I don’t.
Q. He has never told you about a bookkeeper called Kelly that assists him?
A. No we haven’t discussed that.
Q. Has he ever told you that he has a financial adviser?
A. Yes. He has.
Q. These are all things that he has introduced in the last 12 months or thereabouts?
A. Yes.
Q. So the problems in relation to accounts, matters of that nature, relate to the period before the last 12 months?
A. Largely but I think he is still at times rather profligate with respect to spending.
Q. But you can’t give us any examples in the last six months?
A. That’s right, no.” (T.1027/28)

340 When he was giving this evidence, it seemed to me that Dr Dragutinovich had formed a general impression of the plaintiff’s ability to manage his financial affairs, but had made no detailed examination of the subject. That general impression was based on his opinion that the plaintiff had suffered significant brain damage.

341 Dr Jungfer, a psychiatrist qualified on behalf of the plaintiff, expressed the opinion in her report of 23 January 2004 that the plaintiff’s psychiatric illness would not impact upon his capacity to manage his affairs, but that his cognitive decline brought about by his brain damage was such that he would require the appointment of a financial adviser. In her report of 8 December 2004 she said that:

“It is the contribution of the mood disorder and vulnerabilities, his risk of exploitation, that lead me to conclude that even if his memory is normal that his financial affairs should be managed.”

342 In her report of September 2006 she thought his emotional disturbances caused him to be vulnerable with regard to exploitation and that he required his affairs to be managed under the Protected Estates Act.

343 Professor Mattick is a psychiatrist who was qualified on behalf of the defendants. In his report of 19 October 2006 he noted that the plaintiff had lost some memory efficiency but did not think that this was particularly marked or significantly disabling. He did not think that it was suggestive that the plaintiff would not be competent to manage his own affairs. He made the important qualification that the plaintiff would resist the appointment of the Protective Commissioner, or a trustee under the Protective Estates Act, if this was sought. Professor Mattick thought the plaintiff was competent from a cognitive point of view to manage his affairs.

344 Dr Henke, the rehabilitation specialist, set out his conclusions in his report of 8 March 2007. He appreciated that the plaintiff’s position insofar as financial management was concerned was complicated by his extreme physical disabilities. These of themselves would make it difficult for him to properly manage large sums of money. Doctor Henke said:

“In my opinion, it would be difficult for Mr Kendrick to carry out management of these activities. This would necessitate the appointment of a manager who handles payments and investment matters. In my opinion, any person managing these issues should not be one of the persons involved in the provision of his care as it may result in a conflict between careful management of funds and monetary gain.
In my opinion, several hours per month assistance would probably be necessary as part of this management regime. This requirement arrises due to the complexity of the financial matters and not specifically because of any perceived cognitive impairment.”

That opinion was not challenged in cross-examination.

345 Dr Milton, psychiatrist, as well as providing a report gave evidence in the proceedings. In his report of 30 March 2004 he said:

“I would not like to see him deprived of this aspect of his life if possible. To be bereft of all control of his own affairs when he already feels impotent and useless would be a humiliating experience. The preferable alternative is for him to accept a reputable financial adviser and be guided by that person or organisation.”

346 When Dr Milton re-assessed the plaintiff in October 2006 he did not change that opinion. On the contrary he thought the plaintiff was much more psychologically stable at that time. Dr Milton specifically disagreed with Dr Jungfer on this point. He did so because in his opinion Dr Jungfer failed to provide objective observation material to support her conclusion. When asked what objective observation material he was referring to, Dr Milton responded:

“Immoderate spending, talking in an unrealistic fashion about what he is going to do for the children, how he is going to get another partner, what sort of elaborate house he is going to have. The sorts of things people talk about when they are not talking realistically about how they will spend their money.” (T.2059)

347 Dr Milton noted that there was no history of the plaintiff gambling, or of him trying to induce his former partner to stay by promising her money. There was no evidence of him trying to buy the affections of his children by providing them with expensive gifts. Dr Milton also noted that the plaintiff would vigorously oppose any attempt to take control of his affairs away from him although he was prepared to accept advice.

348 The sort of additional financial advice which the plaintiff would require was described by Dr Milton as:

“In two areas, I think. One he would need more detailed direction, that is investigate in which particular shares or share company or that kind of thing. He would need more specific direction perhaps than the average person. And he would need to see his adviser more frequently. So some of us might see our superannuation advisers every three months, he might need to see his advisers say once a month something like that.” (T.2061)

349 Under cross-examination Dr Milton adhered to that opinion. He had recorded what the plaintiff told him about his intentions should he be successful in the proceedings:

“When asked about financial matters he said his plan is to have an account used for everyday expenses and considers he is capable of managing the day to day payments. However, he intends to have the compensation award managed by a financial organisation and will arrange for this company to make regular deposits into his working account.”

Dr Milton thought that was a reasonable plan.

350 The opinion of Dr Milton is more in accord with my observations of the plaintiff’s abilities than the opinions of Dr Dragutinovich and Dr Jungfer.

351 I had the opportunity of observing the plaintiff give his evidence over some days in October 2006 and in March 2007. He also spoke on a number of occasions in the DVD tendered on his behalf. I have concluded that the plaintiff would have little difficulty in managing a normal household budget, even one involving three children and the paying of a care providing service. He demonstrated a healthy distrust of persons who might seek to offer to him any “get rich quick” schemes. He was very conscious of the fact that whatever money he received out of this litigation was going to have to provide for him for the rest of his life.

352 Although the psychologists/psychiatrists to some extent played this down, one ought not disregard the plaintiff’s physical disabilities when assessing his capacity to manage the investment of a fund in excess of $10 million. The physical effort of keeping track of investments involving the fund and of giving instructions to stockbrokers and the like would, in my opinion, be beyond the capacity of someone such as the plaintiff, particularly somebody who becomes exhausted after a couple of hours of sitting up. That very real limitation needs to be taken into account with his memory and concentration difficulties which are well documented.

353 In relation to his cognitive abilities generally, I have had regard to the various psychological reports and test results. What impressed me in relation to the plaintiff was his ability to competently and coherently answer questions put to him on a variety of subjects. At no time did I detect an inability to understand the purport and effect of those questions. Any difficulty which I observed the plaintiff to have when answering questions was due to the effect of tiredness and illness. It was apparent on at least one occasion when the plaintiff was giving evidence that he was feeling unwell. That was a physical problem, not a mental one. This is not to say that the plaintiff has not suffered brain damage, only that it is not as severe as described by Dr Dragutinovich.

354 In support of the submissions by the defendants, a report was tendered (exhibit 1D(13)) from Mr Watt, accountant, setting out the cost of fund management advice to the plaintiff if same was provided by the Perpetual Trustee Company Limited. The report indicated a range of costs depending upon the amount of the moneys being invested and depending upon the level of service provided. Mr Watt divided the management services into two categories – “advisory level” and – “discretionary level”.

355 The “advisory level” of service included the following:

(i) An “administrative” platform through which investments are tracked, income and capital growth are reported on and performance is monitored, and

(ii) Additional “advisory” services including:

(a) The set-up of a portfolio, based on strategic and investment advice.

(b) Access to portfolio and private institution research;

(c) Regular client contact when opportunities arise for investment or if there has been a shift in the recommendations on assets held;
(d) The client being able to place a call with Perpetual regarding any investment decision he wishes to know more about;


(e) An annual strategic review; and

(f) A six monthly investment review.”

356 It was pointed out that under the “advisory” level of service, the plaintiff is not bound by the advice given by Perpetual. The plaintiff is free to make his own choices.

357 In relation to the “discretionary level” of service, Perpetual has full discretionary control over the funds put under management in terms of where to invest them in order to meet the strategic investment goals of the plaintiff. Perpetual would provide to the plaintiff a regular income stream from the funds placed with them. This level of service is very similar to the service provided by the Office of the Protective Commissioner and entitles the plaintiff to meet with Perpetual to discuss his financial position, as with the “advisory level”.

358 In my opinion the “advisory level” would be insufficient to meet the additional need for fund management created by the plaintiff’s injuries. The “discretionary level” would be more appropriate. The advantage of the “discretionary level” is that day-to-day decisions as to the movement of funds are made by the manager with the plaintiff providing input as to the overall strategic management. It also has the advantage that it provides a regular income stream which the plaintiff can then manage himself once it is in his hands. The advantage from the plaintiff’s point of view is that at the end of the day he is still in control of the damages which have been awarded to him.

359 The Court was referred to the decision of Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 61-62 where the High Court made it clear that damages under this head are only to be awarded for financial expense or loss which is a direct product of the injury not because normal people would have difficulty in managing large sums of money. Relying on that decision, submissions were made to the Court concerning costs if the Court determined the “discretionary level” was appropriate for fund management.

360 The defendants’ submission proceeded as follows. The “discretionary level” of management consisted of the “advisory level” plus a closer and more detailed level of control. The “advisory level” would have been the level of management which the plaintiff would have needed for such a large sum of money even before injury. Accordingly, when awarding an amount for fund management the Court should only award the difference between the cost of the “discretionary level” of management and the “advisory level” of management.

361 I do not agree. The submission involves a degree of artificiality which has little regard to the practicalities of the plaintiff’s position. As a result of his injuries, he requires the close level of fund management described as the “discretionary level”. One of the building blocks in that level of management is the “advisory level” of management. One does not get to the “discretionary level” until the “advisory level” of management has been provided. I do not think it is fair to the plaintiff or logical to break up the “discretionary level” of management in that way. If the plaintiff is entitled to the “discretionary level” of management as I believe he is, then he is entitled to the whole of the cost for that level of management.

Conclusion

362 At this stage I do not propose to make any formal orders. This is to enable the parties to agree on the outstanding elements of damages. It is also not possible to make final orders as to damages and on the cross-claims until the damages schedules have been completed. I propose to seek submissions from the parties as to when they believe they will be in a position to complete the damages schedules so I can appoint a date for the making of final orders. If no agreement can be reached, I will make final orders based on the evidence before the Court supplemented, if appropriate, by any additional material on the question of fund management.

Friday, 21 December 2007

363 Following the handing down of my reasons on 30 November 2007, the parties were given the opportunity to discuss the implications of those reasons and to agree if possible on the outstanding heads of damage. Although evidence was given by Mr Watt on the question of funds management, it was not necessary to use that evidence since the parties agreed on the amount to be awarded to the plaintiff for funds management.

364 The agreements reached by the parties were as follows:

365 The Fox v Wood amount was agreed at $95,636.00. Past out-of-pocket expenses excluding weekly payments under the Workers Compensation Act 1987 were $6,964,087.00. Funds management costs were agreed at $1,457,963.00. Payments of weekly compensation amounted to $269,343.00.

366 This left two matters outstanding. The first matter was the question of interest on the difference between the amount awarded for past economic loss and the payment of weekly compensation. The difference was agreed by the parties at $80,000.00.

367 The liability of Bluescope Steel to pay interest on that amount was not seriously disputed. Section 151M of the Workers Compensation Act 1987 applies. The prescribed rate of interest under that section is three-quarters of the rate prescribed for the purposes of s 95 of the Supreme Court Act 1970. In this case that is a figure of 7.5% per annum. Applying that percentage over the 6.75 years that the plaintiff suffered past economic loss produced a figure of $20,250.00 for interest.

368 The obligation of ASMS to pay interest is governed by s 137 of the Motor Accidents Compensation Act 1999. The rate of interest payable under that section is three quarters of the rate prescribed under s 101 of the Civil Procedure Act 2005. That rate is the same as under the Workers Compensation Act 1987 and would produce the same amount of interest.

369 ASMS, however, resisted the payment of interest on the basis that the plaintiff’s claim was constantly being reformulated as the trial progressed. By way of illustration the plaintiff’s assessment of damages produced at the commencement of the trial had altered significantly by the end of trial. On that basis ASMS submitted that it did not have information which would enable a proper assessment of the plaintiff’s claim to be made and consequently it had no obligation to pay interest under the section.

370 I agree that the plaintiff’s claim for damages was something of a “work in progress” and its final formulation was not achieved until addresses. That having been said, it was always clear that the plaintiff’s case was going to be a large one. The only offer made in writing that was brought to the attention of the Court was in February 2007. The amount ultimately awarded to the plaintiff exceeded that offer by much more than the 20% provided for by the section.

371 Despite changes in detail, the fundamentals of the plaintiff’s case on damages remained constant throughout the trial. The evidence on which the plaintiff sought to rely was also available well before the trial commenced. I am not satisfied that ASMS was not able to make a proper assessment of the plaintiff’s claim so as to make an appropriate offer. Accordingly I find that ASMS is obliged to pay to the plaintiff interest under s 137 of the Motor Accident Compensation Act 1999. As with Bluescope Steel, the amount of that interest is $20,250.00.

372 ASMS raised a second matter. It did not dispute the out-of-pocket expenses incurred by Bluescope Steel up to 27 March 2007, the date at which damages were calculated. It submitted, however, that 38 weeks had past between that date and the date when reasons for judgment were handed down during which substantial additional out-of-pocket expenses had been paid by Bluescope Steel. It submitted that in view of the findings made by the Court as to the plaintiff’s entitlement to such matters as future physiotherapy costs, future psychological costs and future care, the out-of-pocket expenses paid by Bluescope Steel between 27 March and 21 December 2007 constituted a substantial overpayment in respect of which there should be no liability on the part of ASMS. It submitted that such overpayment was solely the responsibility of Bluescope Steel.

373 By way of illustration, ASMS pointed out that the Court had allowed $120.00 per week for future physiotherapy expenses from 27 March whereas Bluescope Steel had paid $402.00 per week. This resulted in an overpayment of $10,716.00. In relation to future care, the amount awarded by the Court was approximately $9,001.00 per week from 27 March whereas Bluescope Steel had actually paid an average of $20,000.00 per week up until 21 December 2007. It was submitted that this constituted an overpayment of $429,928.00. A similar submission was made in relation to future psychological costs.

374 The submission should be rejected. During the course of the trial ASMS did not dispute the reasonableness of the out-of-pocket expenses which had been paid and which continued to be paid by Bluescope Steel pursuant to its obligations under the Workers Compensation Act 1987. For practical reasons it was understood by the parties that a date should be nominated at which damages were to be calculated. Unless this was done agreement could not be reached between the parties as to specific heads of damages. The date agreed on was 27 March 2007.

375 Even though that was the agreed date, there was an inevitable delay between that date and the date when I handed down my reasons. The reasonableness or otherwise of the existing regime and therefore the payments being made by Bluescope Steel under the Workers Compensation Act, could not be known until those reasons were handed down.

376 It is incorrect to characterise the payments by Bluescope Steel between 27 March and 21 December 2007 as an overpayment. They were payments made pursuant to Bluescope Steel’s statutory obligation under the Workers Compensation Act in the same way as payments had been made from the date of the accident until 27 March. It would have been inhumane, not to mention contrary to the workers compensation legislation, for Bluescope Steel to have unilaterally altered the regime of care and treatment in place while judgment was reserved.

377 The point taken by ASMS, however, does raise a potential injustice from the defendants’ point of view. Thirty-eight weeks have now passed since judgment was reserved on 27 March 2007. The cost of the care and treatment received by the plaintiff during that period has been included in the agreed figure for past out-of-pocket expenses. Accordingly there needs to be an adjustment to the figures for future physiotherapy, future psychological treatment and future care. I do not propose to make any adjustment to the figures for childcare, since those figures are at best an estimate and lack the precision necessary to justify further adjustment to take account of the intervening 38 weeks.

378 The best way to prevent injustice to the defendants is to adjust the plaintiff’s life expectancy figure and the multiplier for that figure to have regard to the fact that 38 weeks have now passed (see [223] hereof). When the plaintiff’s life expectancy is reduced to 32.85 years, the 5% multiplier becomes 854 and I have used that figure to adjust downwards those heads of damages. After making that adjustment, the damages become:

Future physiotherapy	$ 102,480.00
Future psychological treatment	$ 148,780.00
Future care	$7,686,694.00

379 As a result of the further agreement between the parties as to heads of damages and the adjustments to which I have referred, the schedules of damages can now be completed.

Bluescope Steel

Non-economic loss	$ 244,250.00
Loss of income Past Future	$ 347,672.00 $ 730,742.00
Superannuation	$ 100,902.00
Interest	$ 20,250.00
Fox v Wood	$ 95,636.00
Past out-of-pocket expenses	$ 6,964,087.00
Indoor/outdoor maintenance, gardening services and car maintenance	$ 47,814.00
Personal care and mobility equipment	$ 589,000.00
Additional home/architectural claims including ongoing maintenance	$ 750,000.00
Additional motor vehicle expenses	$ 150,000.00
Ongoing treatment and medication	$ 261,904.00
Physiotherapy	$ 102,480.00
Psychological review and treatment	$ 148,780.00
Computer and home automation expenses	$ 175,000.00
Hospitalisation	$ 87,000.00
Additional holiday costs	$ 285,000.00
Care	$ 7,686,694.00
$ 18,787,211.00

380 After 20% for contributory negligence is conducted, the figure becomes $15,029,768.00.

381 To that figure the agreed amount for fund management needs to be added of $1,457,963.00. The final figure for Bluescope Steel is therefore $16,487,731.00.

ASMS

Non-economic loss	$ 381,000.00
Loss of income Past Future	$ 347,672.00 $ 730,742.00
Superannuation	$ 100,902.00
Interest	$ 20,250.00
Fox v Wood	$ 95,636.00
Past out-of-pocket expenses	$ 6,964,087.00
Indoor/outdoor maintenance, gardening services and car maintenance	$ 47,814.00
Personal care and mobility equipment	$ 589,000.00
Additional home/architectural claims including ongoing maintenance	$ 750,000.00
Additional motor vehicle expenses	$ 150,000.00
Ongoing treatment and medication	$ 261,904.00
Physiotherapy	$ 102,480.00
Psychological review and treatment	$ 148,780.00
Computer and home automation expenses	$ 175,000.00
Hospitalisation	$ 87,000.00
Additional holiday costs	$ 285,000.00
Care	$ 7,686,694.00
Childcare	$ 270,669.00
$ 19,194,630.00

382 After reduction for contributory negligence, the figure becomes $15,355,704.00. After addition of the figure for funds management, the final amount is $16,813,667.00.

383 While the figure calculated in relation to Bluescope Steel will remain the same, the figure for ASMS requires further adjustment to have regard to s151Z(2) of the Workers Compensation Act 1987. That section sets out a formula to be applied when calculating the damages payable by a third party where both it and the employer are tortfeasors liable to an employee plaintiff. After applying the s151Z(2) formula, the amount payable by ASMS is $16,650,699.00.

384 In relation to the damages to be awarded against Bluescope Steel it needs to be noted that because Bluescope Steel have paid the out-of-pocket expenses $6,964,087.00 plus weekly compensation of $269,343.00 the plaintiff is liable to repay to Bluescope Steel from his verdict against it the compensation and other moneys which he has received. He is not, however, obliged to pay back all of it. Since his damages have been reduced by 20% for contributory negligence, the repayment to Bluescope Steel is also reduced by 20% pursuant to s10 of the Law Reform Miscellaneous Provisions Act 1965. Accordingly, the amount which the plaintiff has to repay to Bluescope Steel is $5,786,744.00.

385 There were cross-claims between Bluescope Steel and ASMS. I apportioned liability between them equally. In approaching the cross-claims I applied the approach of Bryson JA in Roads and Traffic Authority v Ryan [2005] NSWCA 34. In Bluescope Steel’s cross-claim against ASMS the verdict in its favour will be $8,243,866.00. In the cross-claim by ASMS against Bluescope Steel the verdict in its favour will be $8,325,350.00.

386 I propose to reserve the question of costs to allow the parties to make submissions if any special costs orders are sought.

Orders

387 I make the following orders:

(1) There will be judgment in favour of the plaintiff against Bluescope Steel in the sum of $16,487,731.00. It is noted that the plaintiff is liable to repay Bluescope Steel the amount of $5,786,744.00 on account of its payment of the out-of-pocket expenses and weekly compensation.

(2) There will be verdict and judgment in favour of the plaintiff against ASMS in the sum of $16,650,699.00.

(3) There will be judgment in favour of Bluescope Steel against ASMS on its cross-claim in the amount of $8,243,866.00.

(4) There will be judgment in favour of ASMS against Bluescope Steel on its cross-claim in the amount of $8,325,350.00.

(5) I reserve the question of costs and I grant the parties liberty to apply to the Court to fix a date for the hearing of any argument on that question.

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