Manowski v Sealanes (1985) Pty Ltd

[2019] WADC 90

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MANOWSKI -v- SEALANES (1985) PTY LTD [2019] WADC 90

CORAM:   VERNON DCJ

HEARD:   10-12, 15-19 JANUARY, 3 MAY & 20 AUGUST 2018

DELIVERED          :   4 JULY 2019

FILE NO/S:   CIV 3426 of 2015

BETWEEN:   MICHAL MANOWSKI

Plaintiff

AND

SEALANES (1985) PTY LTD

Defendant

Catchwords:

Personal injury - Truck driver injured by bulkhead falling in refrigerated trailer at defendant's depot - Defendant's liability in negligence - Assessment of damages - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)

Result:

Action dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	SRB Legal

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

Coal Hub Pty Ltd v NSL Consolidated Ltd [No2] [2016] WASC 257

Fox v Wood (1981) 148 CLR 438

Leighton Contractors v Fox [2009] HCA 35

Schafer v Department of Housing [2018] WADC 88

VERNON DCJ:

1. The plaintiff sues the defendant for damages for injuries suffered in an accident on 22 July 2014, inside a refrigerated trailer, when the plaintiff was hit on the head from behind by a falling bulkhead. 

2. The plaintiff claims that, in the process of unloading the trailer, the defendant, by its employee, was negligent by driving a forklift onto a ramp whilst the plaintiff was inside the trailer, when the plaintiff ought to have known that:

   1.driving a forklift up the ramp would cause the ramp and the trailer to shake; and

   2.the resulting movement in the trailer could cause a bulkhead in the trailer to fall and injure a person inside the trailer.[1]

   [1] This is the effect of pars 8.7, 8.8, 9.1 and 9.5 of the Statement of Claim dated 20 October 2015.  The plaintiff also pleads in pars 9.2, 9.3 and 9.4 respectively that the defendant was negligent in failing to ensure the plaintiff was not in the trailer before driving the forklift onto the ramp, failing to train or supervise its employees not to do so, and failing to warn or adequately warn the plaintiff the defendant intended to drive onto the ramp, which are variations of the allegation that the defendant was negligent in driving the forklift on the ramp whilst the defendant was inside the trailer.

3. The plaintiff claims that he suffers ongoing disabilities as a result of the accident which, in particular, prevented him from working in his former occupation as a truck driver.

4. The defendant denies liability for the accident and says that: 

   1.driving the forklift on the ramp does not and did not cause movement of the trailer; and

   2.any vibration of the ramp when the forklift was driven on it was not transmitted into the trailer.

5. In addition, the defendant says that, whilst it did not dispute that the plaintiff had suffered some injury in the accident,[2] the plaintiff has failed to prove that he had sustained any significant injury, and that certainly there is no evidence of any ongoing injury after 12 June 2015.

   [2] ts 34.

6. The plaintiff also pleads his claim in terms of the defendant's breach of a statutory duty, essentially by failing to assess the risk of harm to the plaintiff.  As the occupier of the depot the defendant owed a duty to the plaintiff to use reasonable care to avoid physical injury to the plaintiff: Leighton Contractors v Fox [2009] HCA 35 [48]. The matters articulated in par 10 of the statement of claim may be relevant to determining whether the defendant has breached a duty of care owed to the plaintiff, but do not form the basis for a separate cause of action.

7. Accordingly, the issues I must determine are:

   (a)whether or not there was a risk, of which the defendant ought to have been aware, that driving a forklift on the ramp would cause movement in the trailer sufficient to cause a bulkhead in the trailer to fall and injure a person inside the trailer;

   (b)if the answer to (a) above is 'yes', in light of that risk, should the defendant have implemented a system of unloading refrigerated trailers that ensured that there was no one in the trailer when the forklift was on the ramp, so that the defendant liable in negligence for failing to do so;

   (c)if the answer to (b) above is 'yes', what was the extent of the plaintiff's injuries suffered in the accident, and what ongoing disability does the plaintiff suffer?

Civil Liability Act 2002

1. The plaintiff's claim is to be determined under the provisions of the Civil Liability Act 2002 (WA) (CLA).

2. Section 5B(1) CLA provides that a person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless:

   1.the person knew or ought to have known of the risk;

   2.the risk was not insignificant; and

   3.in the circumstances a reasonable person in the person's position would have taken those precautions.

3. Section 5B(2) CLA provides that, in determining whether a reasonable person would have taken precautions against a risk of harm, the relevant considerations include the probability that harm would occur if care is not taken, the likely seriousness of the harm and the burden of taking precautions.

4. Section 5C(1)(a) CLA provides that a determination that the fault of a person caused a particular harm requires the fault to be a necessary condition of the risk of harm.

5. Section 5D CLA provides that the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Conduct of the proceedings

1. The plaintiff represented himself at the trial of the action.  As the plaintiff was a litigant in person, I afforded him some leniency in relation to compliance with court rules and the articulation of the plaintiff's case.  At the same time I was required to ensure that any latitude did not work an injustice to the defendant.[3]

   [3] Schafer v Department of Housing [2018] WADC 88 [10]

2. Although the plaintiff does not speak English fluently, he appeared to have a good understanding of English, both the spoken word and in writing. The latter was demonstrated by his reading aloud, during cross‑examination, portions of a written statement he had signed after the accident.  

3. The plaintiff did, however, have difficulty expressing himself in English and was likely to have some difficulty in following some of the evidence, in particular the expert evidence.  Accordingly, a Polish interpreter was arranged to be present on each day of the trial.  The plaintiff used the interpreter extensively throughout the trial, both to translate to witnesses, and the court, and to translate to the plaintiff what was said during the hearing.

4. The plaintiff expressed distress on a number of occasions about his position as a self-represented party, and his perceptions of being the subject of injustice.  However, it was my observation, that he did not display this distress when questioning witnesses, (other than the medical witnesses) and was prepared and focussed on the task. 

5. The plaintiff said on many occasions that he had difficulty recollecting events, including what had been said to him during the trial.  My observation was, however, that the plaintiff often accurately recalled what had been said on a previous occasion.  I was left with the impression that the plaintiff exaggerated his lack of recall.

6. The plaintiff called three witnesses in support of his case:

   1.Craig Derham, the truck driver who had worked with the plaintiff on the relevant day; 

   2.an expert witness, Dr Milos Nedved; and

   3.a medical practitioner, Dr Wlodzimierz Zawadzki.

7. The plaintiff did not call a number of specialist doctors as to the claimed physical and psychological effects of the accident. 

8. The plaintiff was aware of the need to call these witnesses.  The defendant had said it required the plaintiff's medical witnesses to be called to give evidence in its written opening submissions dated 14 December 2017.[4]  Prior to trial the court provided the plaintiff with a document on trial procedure, which explained to him that he had the onus of proving each element of his claim including his claim for damages, and that he could do that by producing evidence in the form of witnesses giving oral evidence and documents tendered as exhibits.[5] The plaintiff was provided with a further copy of that document at the outset of the trial,[6] and I reiterated that the medical reports were admissible only if the person who prepared the report was called to give evidence, where the defendant did not agree to the report going into evidence by consent. An almost identical conversation took place on 16 January 2018.[7]  

   [4] Par 27.

   [5] MFI 2, which the plaintiff acknowledged receiving a day or two prior to trial – ts 4.

   [6] ts 4, 5.

   [7] ts 418 - 421.

9. The plaintiff's position was that he could not afford to call the medical expert witnesses and declined to do so.  Although that was the plaintiff's stated position, he did not produce any evidence of any doctor's demand to be paid a fee before giving evidence, what those fees would be, or of his inability to pay those fees.[8]

   [8] ts 26, 38, 39. There was some evidence that the plaintiff owned assets including his home.

10. The trial was adjourned on 19 January 2018, being the last day originally scheduled, because closing submissions could not be completed on that day and the plaintiff had by then informed me that he did want additional time to arrange the attendance of the medical experts, and that he would pay their fees for doing so. 

11. I ordered that the plaintiff file and serve a list of all the expert medical witnesses he proposed to call and the dates that each witness would be available to give evidence, and that the matter be listed for further directions.

12. The plaintiff subsequently reverted to the position that he could not afford to call the medical expert witnesses and declined to do so.  The matter was ultimately relisted for closing submissions on 20 August 2018.

13. My impression was that the plaintiff was aware of the requirement to call his expert witnesses before the trial began.  However, whatever the situation at the beginning of the trial, there is no doubt that thereafter the plaintiff was well aware that he would not be able to rely on the contents of the medical witnesses' reports unless he arranged for those witnesses to give evidence.[9] 

    [9] One additional reason that I am satisfied of this is that the plaintiff required the defendant to call witnesses to prove the taking of video recordings of the plaintiff before those video recordings were admitted into evidence, having confirmed with me on the first day of trial that this followed from what I had said to him about the medical reports (ts 36).

Liability

Facts not in dispute

1. There is no issue about the matters set out in pars 27 - 44 below and I make findings of fact accordingly.

2. The plaintiff is a 70‑year‑old man, having been born in Poland on 3 December 1948.  He was 65 years old at the date of the accident on 22 July 2014.  He has lived in Australia since 1982.  He has worked as a truck driver for 46 years.[10]

   [10] ts 18.

3. The defendant is a company that owned and managed refrigeration and warehouse facilities at a depot in Karratha.

4. On 22 July 2014 the plaintiff, with Craig Denham, drove a road train consisting of a truck owned by the plaintiff's employer, Sadliers-Nexus Logistics Pty Ltd, and two or three refrigerated trailers, from Perth to the Karratha.[11]

   [11] There was inconsistency between the plaintiff's recollection that there were three trailers and Mr Denham's recollection that there were two.  This is not relevant to the determination of the issues.

5. Both the defendant and Sadliers had depots in Karratha, on opposite sides of the same location.  Part of the load in the trailers was to be delivered to Sadliers' depot and the balance to the defendant's depot.[12]

   [12] ts 41.

6. The plaintiff had been driving to Karratha, with Mr Derham as his partner, for about three and half months before the day of the accident, and that he had been to the defendant's depot twice a week on average over that time.[13] 

   [13] ts 41.

7. The plaintiff and Mr Denham were required to keep the defendant's staff informed of their progress from Perth by texting or telephoning the Karratha depot when they left Perth, then again when they got to Carnarvon, and finally when they were at Fortescue, about an hour and a half from Karratha.[14]

   [14] The plaintiff's evidence to this effect was confirmed by Mr Marchant at ts 303.

8. The loads inside each of the trailers were divided into compartments.  The configuration of the compartments depended on the required temperature of the goods during transport, with some goods needing to be chilled and some to be kept frozen.  Frozen goods are generally held in the front of each trailer, furthest away from the rear doors.[15]

   [15] Exhibit 19 at 4.28, 4.29, 4.30.

9. On the inside of the side walls of each trailer were two strips of slotted holes running parallel to the trailer floor, one strip near the floor and one near the top of the trailer.[16]

   [16] Exhibit 19 at 4.32, 4.33.

10. The compartments were created by the placement of bulkheads.  The bulkheads on the day of this accident were an older, heavier, type weighing about 40 kg.  They were clad in stainless steel, with an insulated core and edged on all sides with a firm but flexible material.  This material formed a seal where the bulkhead met the walls, roof and floor of the trailer.[17]

    [17] Exhibit 5, ts 59 - 66, photographs forming part of Exhibit 19.

11. Usually each bulkhead was held in place by two parallel bars.[18]  These bars were known as pogo sticks and had telescopic (retractable) ends.  One of the telescopic ends slotted into a hole in the strip on one side of the trailer, and the other end into a corresponding hole on the other side.[19]  Usually one bar was fitted near the floor and the other was fitted near the roof.  The pogo sticks had to be removed, in order to remove the bulkhead.

    [18] Exhibit 19 at 4.31.

    [19] Exhibit 19 at 4.36.

12. In the current case, some of the contents of one of the trailers were unloaded at the Sadliers' depot.  This involved the removal of the bulkhead nearest the rear of the trailer.  After that trailer had been partially unloaded, a Sadliers' employee reinstated the bulkhead (not the plaintiff or Mr Derham).  That bulkhead was secured in place by only one pogo stick, near the trailer floor.[20]  The plaintiff and Mr Derham then drove the truck and trailers to a ramp at the defendant's depot.[21]

    [20] ts 49, 195.

    [21] It is not clear which of them were actually driving.

13. The ramp structure comprised a sloping floor with a flat portion at the top connected to a flat landing platform.  The ramp was made of two large steel side beams with cross bearers supporting a grid mesh.[22]  Where the top of the ramp met the platform, the ramp and platform were supported by two legs attached to a metal base.  A bar in the base ran parallel to the intersection between the ramp and the platform.  The landing platform was supported by a further two steel legs, which in turn stood on a steel frame.[23]  The floor of the landing platform was of heavy chequer plate.[24]  A metal lip on the platform's edge rested on the recessed bumper strip on the back of the trailer, bridging the gap between the platform and trailer.[25]  The two rear wheels of the trailer were chocked, and the trailer's brakes were engaged, to prevent the trailer from moving away from the ramp.[26]

    [22] Exhibit 19 at 4.13.1, ts 358.

    [23] Exhibit 19 at 4.13.2, ts 359, 360.

    [24] Exhibit 19 at 4.13.4, ts360, 361.

    [25] Exhibit 19 at 4.17, ts 362, 363, 364.  Mr Fisher estimated the difference to be more than 5 mm and perhaps 15 mm.

    [26] Exhibit 19 at 4.19, exhibit 20, ts 373.  

14. The ramp and platform stood on gravel ground, and were not fixed to a concrete footing.

15. When the plaintiff arrived at the defendant's depot, either he or Mr Derham backed one of the trailers up to the platform, and the rear doors were pinned back to the trailer's sides.[27]

    [27] Exhibit 19 at 4.25, ts 373.

16. At some point the plaintiff entered the trailer and removed the single pogo stick holding the bulkhead closest to the rear of the trailer in place.

17. The defendant's employee, Kane Kipping, then drove a forklift up the ramp in preparation for removing the trailer's load.  The forklift weighed about 2.7 tonnes.[28]  The plaintiff was inside the trailer when Mr Kipping drove the forklift onto the ramp. 

    [28] Exhibit 19 at 4.60, ts 379.

18. Mr Kipping stopped the forklift on the ramp and spoke to Mr Derham.

19. After Mr Kipping had stopped the forklift on the ramp, the bulkhead fell on the back of the plaintiff's head.[29] 

    [29] Defendant's closing submissions dated 18 June 2018, at par 5.

Evidence on liability issues

1. As I have said, the plaintiff relied on his own evidence and that of Mr Derham and Dr Nedved.

2. The defendant relied on Kane Kipping and Caroline Oreo who shared the role of operations manager of the defendant's Karratha depot, a truck driver, Trevor Marchant, the defendant's former occupation health and safety manager, Simon Lucas, and an expert witness, John Fisher.

3. I will deal firstly with the lay witnesses of each party, and then the expert evidence. 

Plaintiff

1. The plaintiff said that he pulled the pogo stick out and kept it in his hand.  After he removed the pogo stick, he checked the bulkhead with his hand and felt it was steady.  He did not want to drop the pogo stick on the metal floor of the trailer, because it would make a lot of noise.  He turned 180 degrees, and took two or two and a half steps.  He put the pogo stick down and was hit from behind by one of the bulkheads.  The plaintiff said this felt like a sledgehammer.[30] 

   [30] ts 22, 124.

2. The plaintiff's initial evidence was that there were two bulkheads.[31]  In evidence-in-chief, the plaintiff described the action of testing the stability of the bulkhead, by testing the handle.[32]  He said that he only tested the stability of one of the bulkheads, the left one.[33]

   [31] ts 49, 53.

   [32] ts 50.

   [33] ts 50.

3. In cross-examination, after initially conceding that it was likely there was only one bulkhead, the plaintiff said that he could not remember if there was one or two.[34]  The plaintiff then reverted to the position that he was 100% or 99% sure there were two bulkheads, before saying through the interpreter, 'I'm not exactly sure but I think there were two'.[35]

   [34] ts 61, 64.

   [35] ts 66.

4. The plaintiff said that, even if there was only one bulkhead, there would still be a handle, but subsequently conceded that there may not have been a handle.[36]

   [36] ts 61, 62, 63.

5. In the case of a single bulkhead without a handle, the plaintiff's evidence was that he would check to see if the bulkhead felt steady by putting his hand on it.[37]  The effect of his evidence was that he did this by putting slight pressure on the bulkhead, in his words 'I didn't push, I didn't pull, I just shook it to see if it was - delicately, just to see if it was standing firmly'.[38]  When pressed about whether he shook the bulkhead, the plaintiff said in English, 'I don't know if that's the word to describe it.  Just touch'.  When asked to describe this through the interpreter, the plaintiff said 'I just checked whether it was standing, fitted well, so I can pull it or shift it.  If it was firmly … I just checked to see if it was standing firmly'.  When asked if he put his hand around the edge of the bulkhead, he said 'With my left hand I just wanted to see if it was firmly in place, but it didn't move, if it had moved, I wouldn't have turned around'.[39]

   [37] ts 63.

   [38] ts 65.

   [39] ts 61, 65, 66.

6. The plaintiff signed an incident report form for his employer dated 31 July 2014.[40]  In it the plaintiff said:

   I went inside and there was one bulkhead in the middle, an old one, heavy, approximately 40 kilos each.  I was inside and there is one secure bar at the bottom.  I put my hand, left hand against the bulkhead to make sure the bulkhead stayed in place and with my right hand I took out the bar at the bottom.  After I took the bar I checked the bulkhead to see if it is stable.  I shaked [sic] the bulkhead and it was still secure.[41]

   [40] Exhibit 5.

   [41] Exhibit 9, page 2.

1. The plaintiff said of this statement that it had been written after he had been interviewed by a representative of his employer, and he had signed it without having read it, on the assumption the person preparing it would accurately report what the plaintiff had said.  However, when the contents of the statement were put to the plaintiff, he accepted, that what he had told the person preparing the incident report and what he had signed was likely to be accurate, given that it was prepared nine days after the event.[42]

   [42] ts 54, 55, 57.

2. Whilst the plaintiff was not sure precisely how he checked the stability of the bulkhead, and conceded he did not remember doing it that day, he said, in effect, that he was sure that he did check on this day because he had been doing the job for many years and always checked.[43]  However, he subsequently revised this, claiming the only thing he could not remember was whether there was one, or two, bulkheads, and implicitly asserting that he could recall checking the bulkhead.[44]

   [43] ts 63, 67. 

   [44] ts 68.

3. The plaintiff said that, when he turned around to put the pogo stick down, he saw the forklift at the ramp.  When asked where on the ramp, he said, 'At the beginning of the ramp … about two or three metres from the end of the ramp but definitely it was on the ramp'.[45]  The plaintiff said, shortly afterwards, it was a quarter or a third of the length of the ramp.[46]  He agreed that he had only seen it for 'a brief second' before he was hit by the bulkhead.[47]

   [45] ts 77.

   [46] ts 79.

   [47] ts 79.

4. The plaintiff did not mention any movement of the trailer before he was hit by the bulkhead in his evidence‑in‑chief.[48] 

   [48] ts 22.

5. In cross-examination, the plaintiff said that the forklift entering the ramp always caused everything to shake.[49]  The following exchange took place:

   Counsel:You didn't know that before you got hit on the head did you?  You didn't know that there was any shaking at that time, did you.

   Plaintiff:I didn't – didn't pay much attention to it.

   Counsel:So all you know is that you walked a couple of steps and got hit and you didn't even know what hit you?      

   Plaintiff:Yes.

   [49] ts 124.

6. Inconsistently with this evidence the plaintiff also said, in the context of saying that he had checked the bulkhead was 'firm':[50]

   I never thought that the fact the forklift had entered the ramp could cause [the bulkhead] to fall over.

   [50] ts 131.

7. The plaintiff said that he had never before felt the trailer shake when the forklift came on the ramp because the forklift had never before come on the ramp while he was in the trailer.[51]

   [51] ts 125.

8. After being asked again whether he had actually felt the trailer shake between the time he had turned from the bulkhead and when he was hit, the plaintiff said he did.[52]  He pointed out that he had said this in the incident report, but said that he did not think it was relevant to say the trailer was shaking in his evidence at trial.[53]  He said:

   I was saying what I did, turned around with the pogo stick in my hand and I saw the forklift entering the ramp, I did say that, and everyone knows that when a forklift enters the ramp everything is shaking.  It's normal physics.

   [52] ts 125.

   [53] ts 126.

9. In his 2014 incident report the plaintiff said:

   I remember that just before I got hit on the head the forklift came up the ramp and shaked [sic] the trailer and that's just when I got hit. …

10. Contrary to the evidence I have referred to in par 60 above, when asked again whether he was saying he felt shaking at the time he saw the forklift on the ramp, the plaintiff said, 'Not only that day but every day'.  When reminded of the evidence he had just given, that he had never been in the trailer when the forklift had come up the ramp, the plaintiff said: ^[54]

    Yes.  I wasn't inside the trailer but I was close to the ramp because when the forklift on previous occasions entered the ramp we would stand next to it.

    [54] ts 126.

11. Marking another change in position, the following exchange took place:[55]

    [55] ts 126 – 128.

    Plaintiff:If for some reason I needed to enter the trailer to fix something or move something around and the forklift was about or was entering the ramp then I would pause, yes, I might, as he was approaching the trailer I might've gone in to move something around, enable him to – make space for him to enter the trailer and then I would quickly depart so he could – so he would be slowly approaching the ramp. 

    Counsel:Approaching the ramp or on the ramp? 

    Plaintiff:Yes he was on the ramp, but approaching the trailer.  I don't know if he was going fast or slowly but I could feel the tremor.  I might've been on the floor fixing something and I could feel the shaking.

    Counsel:So is it the case then that the forklift had been on the ramp on prior occasions when you were in the trailer?

    Plaintiff:He never entered the ramp when I was inside the trailer.  Maybe he was on the ramp but I couldn't see.  And another thing, there's a rule that the forklift is not allowed to be behind you.

    …

    Counsel:Mr Manowski, can we go back for you to answer the question I asked you before you said something that didn't respond to it…The question was, had you, prior to the day of your accident, had you been in the trailer at a time when the forklift was on the ramp and caused the trailer to vibrate?

    Plaintiff:Yes, there were situations when the forklift entered the ramp and the pogo stick sits on the two aluminium slots and the shaking would cause the pogo stick to move out of its slot so I would quickly enter to fix the problem because I knew the forklift was approaching and I wanted to clear the way for the forklift to enter and then I was in the trailer and I could feel the trembling, shaking.

12. However, after further questioning the plaintiff reverted to the position that he had never been in the trailer when the forklift had entered the ramp and therefore had not felt any shaking in the trailer on an earlier occasion, following which he said that on this occasion, 'when it entered the ramp, of course I felt the shaking, I didn't know what the outcome would be'.

13. Subsequently, the plaintiff said for the first time that he felt the trailer jerk before the bulkhead fell, in the following exchange:[56]

    [56] ts 138 – 140.

    Counsel:You don't know what happened, do you?  You – you don't know what caused the bulkhead to fall

    Plaintiff:Now I know.

    Counsel:How do you know?

    Plaintiff:Because at the time of the forklift moving along the ramp, I felt vibrations.

    Counsel:A mild vibration

    Plaintiff:And towards the end, it was as if something has – had been moving.

    Counsel:You haven't said that before.  All right.  Well, tell us about that.

    Plaintiff:I will say it clearly.  I turned around, I saw the forklift entering the ramp, I bent down to put the pogo stick on the floor.  No, I hadn't put it - I was about to put the pogo stick on the floor and I felt jerk, sort of.

    …

    Counsel:Tell me then about this jerk that you've just mentioned, describe it to me.

    Plaintiff:I've already said that.  I was holding the pogo stick.  There was a jerk - I would feel the trailer move.

    …

    Counsel:I want to know about the shake.  Please tell me about the shake.  You hadn't mentioned it before, how was it?

    Her Honour:     That wasn't a word that Mr Manowski used - jerk.

    Counsel:Sorry, jerk.  Thank you, your Honour. Tell me about the jerk.

    Plaintiff:Yes.  Maybe I didn't but because you mentioned the shaking I mentioned the jerk.  Yes, you asked me as I was - you've been mentioning the shaking all the time, as I was turning round.  Yes, we've been talking about the shaking all the time, as I took two to two and a half steps I felt the jerking.

    Counsel:Tell me about the jerking, how severe was it, which way did it go?  Which way did it jerk?  Did it jerk forward, did it jerk sideways, up and down?

    Plaintiff:It must've been sort of level but it wasn't strong enough to make me fall over.

    Counsel:So how far did it jerk?

    Plaintiff:I don't know, I didn't measure it.

    Counsel:It didn't happen, did it, Mr Manowski?

    Plaintiff:You can say what you think but I'm telling the truth.  I did swear on the Bible and I'm telling the truth.

    Counsel:All right.  Can we just get on the record though what you demonstrated in terms of a shake.  You indicated with your hands forwards and backwards, is that right?

    Plaintiff:No, it was level.

    Counsel:Forward.

    Plaintiff:Forward.

14. In the course of this evidence the plaintiff also said that he had on occasion stood on the ramp and felt the ramp shaking when the forklift was on the ramp.[57]

Craig Derham

[57] ts 129.

1. Mr Derham said that he drove the truck from the Sadliers' depot to the defendant's depot, and backed the trailer to the ramp.[58]  Mr Derham got out of the truck and checked the belly boxes underneath the trailer.[59]

   [58] ts 176.

   [59] ts 176, 188.

2. Mr Derham said that the ramp in the photographs he was shown was the same as the ramp at the time of the accident.[60]  Those photographs showed that behind the bar at the base of the ramp, parallel to the intersection of the slope, were a number of concrete breeze blocks that had been strapped together to form a single block.[61]

   [60] ts 183, exhibit 12.

   [61] Exhibit 19.

3. Mr Derham recalled seeing the forklift being driven off the ramp, with a pallet, but could not recall seeing it go up the ramp before that first sighting.[62]  Mr Derham's recollection was that the load taken off was a pallet with boxes and brooms on it.[63]

   [62] ts 189.

   [63] ts 186, 189.

4. Mr Derham said that the forklift was being driven as fast as it could go.[64]  He did not know precisely how fast that was but thought that this type of forklift was restricted to a maximum speed of about 15 km per hour, however agreed the maximum speed may have been 12 km per hour.[65]

   [64] ts 180, 190, 197.

   [65] ts 190.

5. As the forklift was driving back up towards the ramp again, and as he went up the ramp, Mr Derham called out to the driver three or four times.[66]  Mr Derham said that the driver then stopped the forklift suddenly.[67]  He said that the forklift was 3 m or 4 m up the ramp.[68]  The spot he marked on the photograph of the ramp, which is exhibit 12, is about a third of the way up the ramp. 

   [66] ts 181, 190.

   [67] ts 181, 190.

   [68] ts 191, exhibit 12.

6. After the driver stopped, Mr Derham said the driver was less than a metre away from him and they exchanged a short conversation to the following effect:

   Do we have any back loading?

   I don't know, I'll have to check.[69]

   [69] ts 192.

7. Mr Derham said that immediately after this conversation ended, he heard a bang in the trailer.[70]  Mr Derham said that he thought the forklift had been stationary for between 2 to 5 seconds when he heard the bang.[71]

   [70] ts 193.

   [71] ts 193, 194.

8. Mr Derham said that he turned to look in the trailer, where he saw the bulkhead on top of the plaintiff.[72]  He said there was one bulkhead, not two, but his recollection was that it was half the width of the trailer.[73]

   [72] ts 181.

   [73] ts 196.

9. Mr Derham said that, when he heard the bang, he recognised the sound.  He said that bulkheads fell all the time, and that vibrations caused them to fall.[74]  When I asked him what vibration, Mr Derham said:

   The forklift driving in and out of the trailer, dropping something on the ground, anything, yeah.  Anything that can move the trailer.  Like the pogo bars if you throw them on the ground as well, that can make it vibrate and fall down.[75]

   [74] ts 194.

   [75] ts 196.

10. Mr Derham said that you needed to stand the bulkheads leaning back from the vertical, and that, if a bulkhead is standing vertically, rather than leaning back against the load behind, it could fall.[76]

    [76] ts 194 - 195.

11. The plaintiff said, purportedly as re-examination, 'Of your experience when you're in the trailer and the forklift is on the ramp, goes along the ramp, do you feel any shaking or any …'.  The question was objected to.  The following exchange took place with Mr Derham:

    Her Honour:     And maybe we can deal with it by asking this witness whether have [sic] you told us everything that you observed at the time the forklift approached the trailer, the ramp until you heard the bulkhead fall?  Have you told us everything that you observed?

    Mr Derham:Yes, yes, your Honour.

    Her Honour:     So there's nothing that you want to add to your evidence about what you observed on that day …in that period of time? 

    Mr Derham:No your Honour, there is one thing.

    Her Honour:     There is one thing, Mr Derham?

    Mr Derham:Yes.  Yes, the whole ramp shakes with the trailer.  The actual ramp is resting on the trailer … Yeah, is sitting on top of the trailer so in one, its connected.  It becomes a one [sic].  It becomes one … And the vibration that's felt at this end is felt at the other end so like you bang something here, you feel something at the other end.[77] 

    [77] ts 197 - 198.

12. In light of that answer, the defendant's counsel was given leave to further cross-examine Mr Derham.  Mr Derham conceded that he did not see the trailer vibrate, but said he saw the ramp vibrate.[78]  It was put to him that when the forklift was on the ramp it did not produce any vibration in the trailer, to which Mr Derham responded 'No, it does.  It's against the laws of physics.'[79]

    [78] ts 198.

    [79] ts 198.

13. Mr Derham said, when questioned further about the vibration of the trailer:

    Mr Derham:I didn't see the trailer moving on this occasion but as soon as you go – or touch anything that's attached to the trailer the trailer moves, like, this way.

    Counsel:Side to side?  

    Mr Derham:Side to side.  Because there's airbag suspension.  So the wheels don't move but the frame on top does.  So the whole cargo hold here moves.

    Counsel:And where have you seen this happen.

    Mr Derham:All the time.

    Counsel:Where?

    Mr Derham:At work.

    Counsel:At Sealanes?

    Mr Derham:Everywhere.

    Counsel:At Sealanes?

    Mr Derham:At Sealanes, at Sadleirs Nexus, at Toll Transport, wherever you want to …

    Counsel:But they don't have, as I understand it, they don't have ramps?

    Mr Derham:No, we have docks but they still have the steel plate which is over the lip of the trailer and once you hit that the trailer moves…because say there's a concrete thing and there's a steel plate, so you don't have a big bump when you drive in, so they lay a plate over the top of it so it's a smooth – it's smooth enough…

    Counsel: And as soon as the forklift goes on to that plate?

    Mr Derham:Plate, it moves.[80]

    [80] ts 201.

14. In further re-examination, the plaintiff asked Mr Derham,

    The question is when you're inside the trailer and there's a forklift on the ramp, can you feel the vibrations inside?

    to which Mr Derham said 'yes'.[81]

    [81] ts 207.

15. Mr Derham conceded that he did not know how much of his evidence was based on what happened on prior occasions and not on the day.[82]

Kane Kipping

[82] ts 203.

1. Mr Kipping said that 22 July 2014 he was working at the defendant's depot in Karratha.  After the plaintiff's truck arrived, two trailers, numbered MF60 and MF61, were unloaded using the ramp. 

2. Mr Kipping said that MF61, which was fully loaded, was unloaded first.  He then unloaded MF60, which was only partially loaded. 

3. There is no dispute that the plaintiff's accident occurred in the partially loaded trailer.  Mr Kipping said that he parked the forklift at the bottom of the ramp whilst the trailer was being backed onto the ramp. 

4. Mr Kipping produced a loading record,[83] which evidences that there was no load in the part of the trailer closest to the ramp: that is there was no load that might account for Mr Derham's recollection that a pallet load of brooms was taken off the trailer before the plaintiff's accident occurred. 

   [83] Exhibit 24.

5. Mr Kipping said that, after the trailer had been backed onto the ramp he drove the forklift up to the top of the ramp.  He identified the spot he stopped at as being a couple of feet forward of the photograph in Mr Fisher's report showing the forklift at the top of the ramp.[84]  This placed the forklift half on the flat portion at the top of the ramp, with the balance of the forklift on the hinged platform.  He said he then stopped and had a conversation with Mr Derham.[85]

   [84] Exhibit 19, ts 457.

   [85] ts 457.

6. Mr Kipping said that he was not going fast up the ramp, being somewhere between, he estimated under cross‑examination, 5 km ‑ 10 km per hour.[86]  Mr Kipping said that there was no need for him to drive at speed up the ramp because he could see that the plaintiff had not yet removed the bulkheads as he was driving up the ramp and he knew he had to stop anyway.[87]  He had not unloaded anything from that trailer at that point.[88]

   [86] ts 458, 471.

   [87] ts 458.

   [88] ts 482.

7. Mr Kipping said that the driver usually stayed in the trailer to remove the bulkheads, which made the unloading process easier.[89]

   [89] ts 478, 494.

8. Mr Kipping said that he had a conversation with Mr Derham after he stopped on the landing platform, and that Mr Derham asked him if there was any back freight and he replied that there was not.  He said he thought this conversation lasted 7 to 10 seconds.[90]  He denied that he had suddenly braked in the middle of the ramp.[91]

   [90] ts 457.

   [91] ts 495.

9. Mr Kipping said he was looking at Mr Derham when he heard a crash from inside the trailer. ^[92]

   [92]ts 464, 478, 494.

10. Mr Kipping said, in effect, that the conversation with Mr Derham took up the whole of the time between him stopping the forklift and hearing the crash.[93]

    [93] ts 457.

11. Mr Kipping said that he had been in the trailer when a forklift had been driven on the ramp 'more times than [he] could count' and that you could hear the noise of the forklift but you couldn't feel it, and there was no vibration in the trailer.[94]  He said that he had never experienced the trailer vibrating under those conditions.[95]  Mr Kipping said this included when the forklift braked on the ramp.[96]  He later said that it was his experience that there was no noticeable vibration of the ramp itself, but that it was possible it was something he had not noticed.[97]  He said when you were in the trailer and the forklift drove in the movement was 'very minimal', just up and down as the suspension softens with the extra weight coming in.[98]

    [94] ts 463, 485.

    [95] ts 464.

    [96] ts 464, 480.

    [97] ts 484.

    [98] ts 463, 480.

12. Mr Kipping denied that the ramp was mobile or that it would move forward.[99]  He said there were occasions when a truck had reversed up and hit it and it had been pushed back.[100]  He said there had been no alterations of the ramp since 22 July 2014.[101]

Caroline Oreo

[99] ts 495.

[100] ts 491.

[101] ts 465.

1. Ms Oreo was also present at the site on 22 July 2014.  She was in the site office when the accident happened.  She said she offered to help the plaintiff, who refused.

2. Ms Oreo said that she was used to driving the forklift into trailers and had also been in trailers when a forklift had been driven into it.  She said that she had not noticed any movement of either the ramp or trailers, either when driving a forklift or when she was in a trailer.  Ms Oreo conceded that it was possible that she simply had not noticed any movement.[102]

   [102] ts 348.

3. Ms Oreo said that a forklift was usually driven at a brisk walking pace on the ramp.[103]

Trevor Machant

[103] ts 343.

1. Trevor Marchant is a truck driver who, at the time of trial, drove the route from Perth to Karratha and delivered frozen goods to the defendant's Karratha depot.  He had been doing this for some years. 

2. Although Mr Marchant gave evidence that he was driving chiller trailers to the defendant's depot in Karratha in 2013 and 2014, he also said that he had only done this when he was driving for a company called Colonial, and that Colonial took over the contract for this work from Sadlier Nexus.  Sadlier Nexus was the company that the plaintiff and Mr Derham were driving for on 22 July 2014.  Accordingly, it is unlikely that Mr Marchant was driving this route on or before 22 July 2014. 

3. Mr Marchant said that he was familiar with the ramp at the defendant's site and identified that ramp as the ramp shown in the photographs which were part of exhibit 19.  Mr Marchant said that the forklift was never driven at full speed up the ramp.  However, he agreed that the unloading operations were performed quickly because of the heat in Karratha.[104] 

   [104] ts 288 - 289.

1. Mr Marchant said that he had been inside the trailer when the forklift entered the trailer many times.[105]  He also said that he had been inside the trailer when the forklift was on the ramp many times.[106]  He said that only one person would be inside the trailer taking out the pogo sticks, so the forklift driver only had to look out for one person.[107]

   [105] ts 255.

   [106] ts 255.

   [107] ts 289.

2. Mr Marchant said that there was some, but not much, vibration in the ramp when the forklift was driving up the ramp or came to a stop on the ramp, but that it had never bothered him.[108]  He said that when the forklift came up the ramp you could hear noise inside the trailer, but said 'You don't feel any vibration or whatever standing inside the trailer.'[109]

   [108] ts 291.

   [109] ts 291, 293.

3. When asked what impact driving the forklift on the ramp had on the trailer Mr Marchant said: ^[110]

   Very little.  Very little.  Because remembering you have your chocks in front and behind … So there – there's very minimum.  Very, very minimum.

   [110] ts 255.

4. When asked what he meant by minimal impact, Mr Marchant said:[111]

   When you are inside the trailer, you feel – when the – when the forklift gets about half way up the ramp you – you feel that the weight goes onto the back of the trailer.  So you hear the air bags (makes noise) because the trailer – the weight of the trailer going in the trailer.

   [111] ts 316, 317.

5. When asked whether there was some movement downwards when the weight of the forklift goes up the ramp Mr Marchant said 'Downwards, yes, minimum.'[112]

   [112] ts 318.

6. Mr Marchant was asked if there was ever any jerking of the trailer when the forklift was driven on the ramp, and if there was any side to side vibration.  In each case he said 'no'.[113]  When asked if the action of driving the forklift off the ground onto the ramp had any impact on the trailer, Mr Marchant again said 'no'.[114]  He said that when the forklift actually goes into the trailer and, when it comes out, the trailer goes up and down and makes some noise, because of the operation of the trailer's airbags.[115]

   [113] ts 255.

   [114] ts 255.

   [115] ts 256.

7. Mr Marchant said in cross-examination that sometimes he would stand on a beam, 8 or 9 inches wide, that was on the ramp near the trailer entrance and out of the way of the forklift, as the forklift went up and down the ramp, and could feel a little vibration of the ramp, but not a lot.[116]  When asked about this further, Mr Marchant said that he could feel the forklift drive past, but there was no shaking.[117]  He said 'Of course you can feel the forklift go up there, but it's not – it's not a vibration or anything like that.'[118]

   [116] ts 290, 291, 293, 294, 310, 311.

   [117] ts 310.

   [118] ts 313.

8. He said 'Its just a little rattle as it goes past you ... you can hear it … I don't know how you feel it.  Little, very little … You can feel it.[119]

   [119] ts 315.

9. Mr Marchant said there was a handrail near the beam to hold onto if you wanted to.  He said he did not need to hold on to the handrail because of any vibration.[120]

   [120] ts 312, 313.

10. Mr Marchant said that he would stand in this place during the initial unloading of pallets from the trailer.  Once the top two pallets and one of the bottom pallets at the back of the trailer had been removed there was room for him to stand inside the trailer, standing on the opposite side of the trailer opposite to the pallet the forklift was going to remove next.[121]

    [121] ts 312.

11. Mr Marchant said he could not recall actually experiencing a forklift stopping suddenly on the ramp.[122]

    [122] ts 332.

12. Mr Marchant said when he took the pogo sticks out he would have his other hand resting on the bulkheads to make sure that they were not going to fall.[123]  He said he had never had one fall on him, and said that they would not fall if you put them up properly and took them down properly.[124]

    [123] ts 254.

    [124] ts 334.

13. Mr Marchant said in cross-examination that he had been on a different site delivering goods in a torqueliner, which is a trailer with soft sides, where he was required to get out of the way when the trailer was being unloaded for safety reasons, in case something fell on him, but that this depended on the freight.[125]  He said that this was a 'totally different' situation, where they would undo the trailer's side curtains, undo the straps and 'maybe' take the gates down, and then it would be someone else's problem.[126]  He said that torqueliners were not unloaded using a ramp, but in the yard.[127]

    [125] ts 284.

    [126] ts 308.

    [127] ts 309.

14. Mr Marchant denied there was a safety zone at the defendant's depot.  He agreed there was a room near the front gate, but said it was somewhere you could go to smoke.[128]

Simon Lucas

[128] ts309.

1. Mr Lucas had been employed by the defendant as a driver from 2010, and as an occupational health and safety officer in 2012 to 2013, and then occupational health and safety manager in 2014 to 2015.[129]  He said that, in that role, he had observed the system of unloading trailers at the ramp at the defendant's depot in Karratha.[130]

   [129] ts 503.

   [130] ts 503.

2. Mr Lucas said that in the course of unloading a trailer, there would be someone in the trailer to remove the stacker bars, which sit between layers of pallets, and the cross bars (or pogo sticks).[131]  He said as the person responsible for safety on the defendant's sites at the time, he had not identified any risk in a person being in a trailer while the forklift was coming into the trailer and that he considered this to be safe.[132]  He said that the person would stand on the other side of the trailer to the pallet being unloaded by the forklift.[133]  Mr Lucas said that it would slow the unloading process down if there was no one in the trailer.[134]

   [131] ts 505, 507.

   [132] ts 503, 506, 508.

   [133] ts 506.

   [134] ts 506.

3. Mr Lucas said that he had never been on the ramp when the forklift was on the ramp.[135]  Mr Lucas said that he had been inside the trailer once, at Karratha, while it was being unloaded by a forklift, and had removed the stacker bars but had not removed the bulkheads.[136]  He said that the forklift had stopped on the ramp occasionally.  Mr Lucas said he could hear the forklift coming up the ramp and he had no real memory of it moving or shaking or anything like that while he was there.[137]  Mr Lucas said that he 'guessed' it was possible that there had been movement inside the trailer during that process, which he had not noticed.[138]

   [135] ts 505.

   [136] ts 514.

   [137] ts 505.

   [138] ts 515.

4. When cross-examined, Mr Lucas said that there was no designated safety zone at the defendant's depot and did not agree that one was required.[139]

   [139] ts 508.

Expert evidence on liability

Dr Milos Nedved

1. The plaintiff relied at trial on the evidence of Dr Milos Nedved, who gave evidence by way of two reports dated 18 December 2016[140] and 14 November 2017[141] and at trial.

   [140] Exhibit 13.

   [141] Exhibit 14.

2. Dr Nedved has a Master of Science in Engineering, awarded in 1967, and a doctorate in safety engineering, awarded in 1970.  He said he has 45 years of experience in accident prevention and investigation.  At the time of his first report, he was an adjunct associate professor in occupational safety and health at Edith Cowan University.  At the time of his second report he was a senior lecturer in accident forensics at CQ University.

3. Dr Nedved made no direct observations of the ramp or the trailer.  He had relied on photographs the plaintiff had taken.[142]  These photographs were not put in evidence.  I do not consider that this fact is a significant factor in assessing Dr Nedved's evidence as similar photographs of the ramp were tendered by the defendant as part of Mr Fisher's evidence.[143]

   [142] ts 224, 225.

   [143] Exhibit 19.

4. Dr Nedved said in his first report that, when a forklift is driven on the ramp, whether fast or slow, it makes the ramp shake and this shaking is transmitted from the ramp to the trailer where some freight may dislodge.[144]

   [144] Exhibit 13, page 6, par 5.2.2.

5. Dr Nedved said in evidence that:

   [It] is my opinion that when the forklift has been driven on the ramp and perhaps compounded by the fact that the ramp was standing on the gravel, that surface or uneven surface, then the vibration and the shock of 2.7 ton heavy forklift truck entering the ramp and stopping on the ramp transferred the shock or the motion to the trailer and the trailer was shaking because of that.  And perhaps if I explain something very simple without going into Newton's law of motion or basic physics, but all of us would know from our experience that when we sit in a car that the car moves a little bit.  When we get out of the car, the car moves a little bit as well and the car typically is 1.5 ton.  An average person would be 75kg, so meaning that in spite of the fact that the car is 20 times heavier than a person entering or leaving the car, the car moves a little bit.  In the case of Mr Manowski's accident, the forklift truck was 2.7 ton, the trailer weighed around 8 tons, the load was about 11 tons meaning it was 19 tons altogether, which means it was only seven times heavier than the forklift truck which was entering, so I am using this as an illustration of the fact that it is absolutely clear beyond any doubt, even if I forget about the principles of physics but on the basis of real life experience, when the forklift truck enters the ramp which is connected to the trailer by the lip or hinge section of the ramp, the trailer has to shake necessarily.  And perhaps if I may also to say that if the trailer was loaded up totally uniformly and if the ramp was connected exactly in the middle, that according to the second law of motion and Newton's laws of physics, the trailer would move only vertically down.  But it is never possible to make sure that the lip of the ramp would be placed exactly at the geometrical centre of the trailer.  Also it is impossible to say that the load would be absolutely equal on both the left and the right side of the trailer and a result of that when in the first instance as a result of a forklift entering the ramp, the trailer is pushed downwards then in the next moment it would start moving sideways because of the effect that there would be … a higher force on one side than on the other side because of the fact that the ramp has not been placed exactly in the geometrical centre.  So to conclude … it is a fact of life that any time when a forklift truck enters the ramp which then is connected to the trailer by the lip or the hinge portion, it is necessary or it always happens that the trailer will be shaking.[145]

   [145] ts 211.

6. When asked why the ramp would be less stable if it were standing on soft ground, rather than concrete, Dr Nedved said:

   [When] the weight or force of a forklift truck in these circumstances enters a ramp then the force of the placed by the weight of the forklift truck on the ramp pushes the ramp downwards and then there is a reaction from the base on which the ramp is standing…provided that it's solid concrete ground then there would be the same reaction on both sides of the ramp but if there is the ramp on the dirt … or perhaps gravel … then there is never uniform strength or thickness or firmness of the ground on both sides of the ramp.  So it is logical that the ramp would drop one side more than on the other one simply because of the non-uniform firmness of the dirt ground or gravel ground.[146]

   [146] ts 212.

7. Dr Nedved said, in cross-examination, that he had based his assessment that the ground was uneven on the basis of two photographs of the ground.  He also said the ground would be uneven because trucks had driven over the yard.  He assumed that this would affect the ground underneath the ramp because he had been told the ramp was moved into different spots around the yard.  The evidence does not support that assumption.[147]  He said that, if the ramp had been in the same place for a long time, the ground surface would still be a factor, as there would be no guarantee the ramp was embedded in the ground to the same depth on each side.[148]

   [147] ts 238 - 239.

   [148] ts 240.

8. Dr Nedved said that, whether the ramp was standing on concrete or gravel, it would still transmit shock to the trailer when a forklift is driven on it.[149]

   [149] ts 240, Dr Nedved had not, however, made any observation of the ramp to support this.

9. Dr Nedved said that the standard industry practice has been that forklift operators are not allowed to move freight if the truck driver is not in a designated safety zone, where he would not be endangered by forklifts or dislodged freight.  He said, 'another similar safety rule followed widely in the warehouse facilities is that if the forklift driver does not see the truck driver he must stop at once'.[150]

   [150] Exhibit 13, page 6, par 5.2.2.

10. Dr Nedved said that, after the removal of the pogo sticks, the bulkhead is left resting against the pallets in the rear compartment and, whilst its stability was significantly reduced, it was still not unstable unless the trailer was subject to some shocks or vibrations.[151]  He said that he had been told by the plaintiff that the trailer was shaking underneath the plaintiff's feet.[152]  Dr Nedved said that he had also been told that the forklift had been driven quite fast up the ramp and that the driver stopped suddenly and this caused the trailer to rock and shake, by which he meant not simply a side to side motion or a backwards and forwards motion, but both.[153]

    [151] ts 218, exhibit 14, page 2, par 2.4.

    [152] ts 234.

    [153] ts 235.

11. Dr Nedved also commented on the defendant's expert report concerning a test of the ramp and the trailer.[154]  Dr Nedved said that the circumstances of the test were not identical to those occurring at the time of the accident which detracted from the test's integrity, in particular that the bulkheads used in the test were different from those in the trailer at the time of the accident.[155]  He did not, however, identify how that would relevantly affect the efficacy of the test in assessing any movement of the trailer.

    [154] Dr Nedved said that the plaintiff had not been given the opportunity to inspect the ramp and trailer. The defendant denied the suggestion, and said that the plaintiff's solicitors had been offered the opportunity to inspect the site on 25 October 2016.  However, as there was no admissible evidence of the assertion that the defendant has refused to allow the plaintiff's expert to inspect the ramp, I did not require the defendant to lead the evidence of its solicitors. 

    [155] Exhibit 14, page 2, par 2.2.

12. He commented in his second report, on Mr Fisher's opinion that there was no shaking imparted to the trailer whilst the forklift drives onto the ramp or stops on the ramp as follows:[156]

    It is my opinion, that this statement not only contradicts the basic law of physics, but is also diametrically different from my extensive industrial experience of several decade. 

    As described in paragraph 4.3 of my report dated 18-12-2016, to enable the forklift to drive into the trailer, a hinged section of the ramp was resting on the rear of the trailer.

    When a forklift of 2.7 tonnes (or even a lighter one) is driven on the ramp, it has to go reasonably fast because of the slope of the ramp. The weight of the forklift acts on the ramp, causing sudden movement of the ramp; in particular when the ramp sits on an uneven ground.

    Then the forklift has to break hard when entering the trailer, causing further shock to the ramp and such movements are being transmitted to the trailer since a hinged section of the ramp is resting on the rear edge of the trailer.

    During more than 10 years I was working in the chemical industry, and during the five years I was working as a United Nations expert in a number of SE Asian countries, I was observing loading/unloading operations very similar to that involved in your accident. Always there were noticeable movements of a trailer as a result of forklift being driven on a ramp resting on the trailer.

    [156] Exhibit 14, page 3, par 2.5.

13. In relation to the first and last paragraphs of this evidence, to the extent that it is intended to be observational evidence, it is of no assistance in determining the plaintiff's claim.  Given its brevity and very general nature it is merely assertion.  No information is given, for example, of what type of ramps he referred to, or how they 'rested' on the trailers, or what type of trailer was referred to.

14. Dr Nedved said in evidence that it was incorrect to say that the ramp was a separate structure from the trailer because there was a hinged section of the ramp resting on the rear edge of the trailer.[157]

    [157] ts 281.

15. Dr Nedved said, in effect, that because the trailer was attached to the ramp, any shock from the forklift braking on the ramp would travel forward to the trailer, causing the trailer to shake and vibrate.  However, he said that if they were not attached the force would be transferred to the ground.[158]

    [158] ts 245.

16. In his second report Dr Nedved relied on a number of documents in support of his claim that it was an industry standard that forklift operators were not allowed to move freight if the truck driver is not in a designated safety zone or if the forklift driver could not see the truck driver.  These documents were internal management documents of three companies.  No evidence was called from these companies as to when the documents were created.

17. The first of these, from a company called SCT Logistics, was on its face a job safety analysis, last reviewed on 8 April 2014, just before the accident.  In that document one activity is identified as:

    Truck drivers working in and around prime mover and trailers whilst loading or unloading of freight is been undertaken by forklift.

18. The potential hazards are identified as:

    Freight dislodged during the rail journey falls from wagon and collides with forklift and/or forklift driver: and/or labourer, forklifts collide with truck driver.

19. The control mechanisms include a designated safety zone for truck drivers and states, 'The safety rule is forklift operators are not allowed to move freight if the truck driver is not in the designated safety zone.'

20. Another activity is identified as 'Forklift operator commences to load or unload rail trailers.'

21. The potential hazards are identified as:

    Freight dislodged during the journey falls from trailer and collides with forklift and/or forklift driver; and/or truck driver, freight being loading (sic) onto the trailers falls from forklift tines and collides with forklift and or forklift driver; and/or truck driver, forklift collides with truck driver whilst moving freight to and from the trailer, forklift collides with truck driver whilst moving freight on to or from trailers.

22. The control mechanism is stated to be as follows:

    1.The safety rule is forklift operators are not allowed to remove freight if the truck driver is not in the designated safety zone.

    2.The ONLY exception to this rule is if the forklift operator or truck driver requires advice or assistance with the positioning of freight onto the trailer.  In this situation the forklift operator must bring the forklift to a STOP and apply the handbrake.  The truck driver can then approach the forklift and communicate with the forklift operator.  The forklift operator is not commence movement of the freight or forklift until the truck driver has returned to the designated driver safety zones.  Please note if designated pedestrian safety zones down the middle of the transit warehouse can be used by the driver as a designated safety driver zone for the purpose of inspecting the loading of the trailer (document's emphasis).

23. There is no evidence about what type of trailer is being referred to, or if the arrangements for unloading were similar to the current case.  In any event the risks identified are not the risk of a bulkhead, or anything else, falling within a trailer.  The risks concern the possibility of injury from loads falling from trailers, which is perhaps consistent with Mr Marchant's evidence of his experience with torqueliners.

1. A second document labelled 'Lionel Samson Sadliers Group' states in relation to an identified 'step' called 'driver involvement':

   The forklift is not to commence or continue loading operations if truck driver is not visible and in a safe area. CAN'T SEE, CAN'T WORK.

2. This report attaches a third document entitled LUEZ Loading, Unloading Exclusion Zones Guidelines Version 1.0 Approved November 2010 prepared for a Victorian industry program called 'Safety Assist', funded by Worksafe Victoria Prevention Fund.  This in turn refers to a Monash University Accident Research Centre review of loading and unloading safety and noted that current (as at 2010) practices identified three fundamental principles, and recommended it was necessary to incorporate all three into any best practice system, namely:

   1.that the forklifts and other equipment, used for loading/unloading and the drivers, and other pedestrians, should be segregated;

   2.that authority for the area in which the loading/unloading activity is occurring should reside with the forklift operator; and

   3.that if the driver ceases to be in the direct line of sight of the operator at any stage during the loading/unloading activity, the loading/unloading activity should immediately stop and not resume again until a direct line of sight is re-established between the operator and the driver.[159]

   [159] Referring to a document called Monash University Accident Research Centre – Loading/Unloading Safety – Review of Best Practice, David Taranto and Dr Peter Hillard – June 2010.

3. On a fair reading of these documents, however, the concerns are directed to ensure that pedestrians, including drivers, were not hit by forklifts and therefore injured.  There is no doubt that when the defendant's forklift was being driven up the ramp the driver in the back of the trailer was in the direct line of sight of the forklift driver, Mr Kipping. 

4. None of this evidence establishes the proposition asserted that there was any recognised industry standard requiring drivers be located in a safety zone before a trailer was unloaded, or a trailer of the type concerned in this incident. 

5. Dr Nedved was highly critical of the defendant's expert, in both his second report and his evidence.  In my view this criticism was significantly overstated, and unfair.  I consider this does cast some doubt over Dr Nedved's impartiality.

Mr John Fisher

1. The defendant called John Fisher.  The substance of his evidence was contained in a statement dated 18 May 2017.[160]

   [160] Exhibit 19.

2. Mr Fisher is a qualified engineer with over 30 years' experience.  He is an associate of the Resolution Institute.[161]  He has experience working in heavy concrete construction, tunnelling, water and sewer construction, major concrete and steel construction during construction of an alumina refinery, and installation and commissioning of major mining equipment.  To a large extent his evidence was observational.

   [161] Formerly known as the Institute of Arbitrators and Mediators, Australia.

3. Mr Fisher gave evidence that he attended the defendant's site on 9 January 2016 and met Mr Kipping, in order to witness a similarly configured trailer being unloaded and to enable a detailed inspection of the equipment used in the process of unloading.

4. Mr Fisher inspected the ramp which had been used on 22 July 2014, and a trailer which he was told was similar to MF 60.[162]  Mr Kipping's evidence was that the trailer, MF86, was the same build as MF60 with the same floor.[163] 

   [162] ts 395.

   [163] ts 459.

5. Mr Fisher said:

   1.The trailer was similarly loaded to the load on trailer MF60 on the day of the accident.[164]

   [164] ts 381, exhibit 19 at 4.65 - 4.67, the load of MF60 being 11.3 tonnes.

   2.His estimate of the weight of the ramp was about 4 tonnes.[165]

   3.The ground the ramp was on was hard, compacted, clay overlaid with a gravel road base.  This was commonly used for paving in the Pilbara region, and gets soft when it rains, but is hard when it dries.  Mr Fisher described it like a rock.[166]

   4.The landing platform was hinged to the top of the ramp with 25 mm hinge pins.[167]  The landing plate which rested on the trailer was also on a pin.[168]

   5.The ramp and the trailer were not structurally connected by the metal plate that rested on the end of the trailer, but they were physically in contact.[169]

   6.There would be flexion of the ramp material as the forklift drove up it, although he did not stand on the ramp when the forklift was on the ramp.[170]

   7.A number of tests were carried out where Mr Kipping approached the ramp in the forklift at a speed which Mr Kipping informed Mr Fisher was his normal speed and which Mr Fisher estimated to be no more than 10 km per hour, and then braked hard on the ramp.  Mr Kipping stopped at a number of different places on the ramp.  There was no longitudinal, or horizontal, movement of the ramp, although there was a significant banging noise.[171]  Mr Fisher said that there was no movement applied to the trailer at all.[172]

   8.Mr Fisher had assessed the movement of the trailer standing outside the trailer with his hand on the frame as the forklift came up the ramp.  He said that it was easier to detect movement of the trailer when standing outside it, on a fixed surface, providing a point of reference, than standing inside the trailer moving with it.  When he stood on the outside of the trailer he could hear the forklift approaching the ramp, and as it moved up the ramp, he could not feel any distinguishable movement in the trailer. ^[173]

   9.When the forklift entered the trailer there was slight vertical movement downwards in the airbags of the trailer, of 2 mm – 3 mm, as a result of the extra load (the weight of the forklift).[174]  There was no side to side movement, nor could he detect any vibration as the forklift entered the trailer.[175]

   10.Based upon his observations on 9 January 2016, there is no shaking imparted to the trailer whilst the forklift drives onto the ramp, up the ramp or stops on the ramp, and there was little to no risk to anyone in the trailer associated with driving or stopping the forklift on the ramp.[176]

   11.When a bulkhead was not positively supported by the pogo sticks, it essentially had to either lean on the load or be propped up by the handler or simply balanced on its edge.[177] The bulkheads he had observed were a light insulating foam type bulkhead, not the older style bulkhead that was being used at the relevant date.[178]

   [165] ts 384.

   [166] ts 389.

   [167] ts 359.

   [168] ts 398.

   [169] ts 393.

   [170] ts 404.

   [171] ts 376 - 379, exhibit 19 at 4.56 - 4.59.

   [172] ts 384 - 400.

   [173] ts 383, exhibit 19 at 4.68 - 4.70.

   [174] ts 379, exhibit 19 at 4.63, 5.2.

   [175] ts 380.

   [176] Exhibit 19, at 5.1, 5.6.3.

   [177] ts 375, exhibit 19 at 4.47.

   [178] ts 375, 376.

6. Mr Fisher said that the movement and braking of the forklift on the ramp would apply a load onto the ramp, but he observed no movement of the ramp at all.  He provided an explanation for this observation as follows:

   The explanation of that in physical terms is that an external force having been applied to the top of the ramp was applied on the bottom of the ramp where it connects to the ground, in terms of a shear or frictional resistance to movement caused by the condition of the ground itself.  It is my opinion that the shear resistance and the frictional resistance between the ground and the ramp was sufficient to withstand that [force] without any movement of the ramp being determined [sic].  It may have occurred in a microcosmic form but it was too small to detect.  When the ramp landing platform was lowered onto the trailer, what happened then was that if it was to be considered, that there was a larger mass that was going to be affected, you are then increasing the ramp – or increasing the – the size of the – of the affected piece from a …four tonne ramp, 10 tonne trailer, a 10 to 11 tonne load.  So it becomes the – the situation of a tack hammer trying to drive a rail spike.  You have a – a lightweight application of force being applied to a heavy item, which in itself is then anchored to the ground.  And it is, in my view, there was sufficient forces applied against the trailer and the ramp to prevent any meaningful movement.[179]

   [179] ts 384.

7. With respect to effect of the connection of the trailer to the ramp by the metal plate, Mr Fisher said:

   It was a sliding fit at best.  It – the tongue may have been tight to the lip.  It really didn't make any difference in my view.  The – that mass proportion was too high for any effect to be generated. Primarily being that the ramp was trying to move the earth.[180]

   [180] ts 385.

8. Mr Fisher said in cross‑examination that there was no reason to think that any vibration on the ramp would pass through the hinging pins.[181]

   [181] ts 399.

Findings on the evidence

1. As I have noted, the plaintiff's evidence of certain events surrounding the accident on 22 July 2014 was inconsistent.  Such were those inconsistencies that I have considerable difficulty in accepting his evidence in large part, if not in its entirety.   Whilst the plaintiff submitted that he had been confused by the questions in cross‑examination, I do not accept that as a reasonable explanation for the inconsistencies. 

2. I find support in this conclusion in the findings I make concerning the surveillance footage, referred to in my reasons on the assessment of damage below.  That is not to say, however, that I reject the totality of plaintiff's evidence.  However, I must exercise a considerable degree of caution before accepting any part of it.

3. I am satisfied that the plaintiff does not, in fact, now remember checking the bulkhead's stability before turning his back on the bulkhead.  I do, however, accept that he had a routine practice of touching a bulkhead to check its stability and that it is more likely than not he followed his usual practice on the day of the accident.  This evidence was supported by the contents of the plaintiff's statement made on 31 July 2014 and by Mr Marchant's evidence, referred to in par 112 above.  I therefore find, on the balance of probabilities, the plaintiff put his hand on single bulkhead to see if the bulkhead moved.   I infer from the evidence that he moved away, that the plaintiff did not feel the bulkhead move when he touched it. 

4. However, the plaintiff did not say, as Dr Nedved assumed, either that he had checked whether the bulkhead was leaning to any degree towards the load behind the bulkhead on this occasion, or that it was his usual practice to do so.  Nor is there any evidence that if a bulkhead were vertical that it would immediately fall when the pogo sticks were removed as Dr Nedved assumed.[182] 

   [182] ts 232 as to the plaintiff having told him this.

5. Whilst the plaintiff suggested, without evidence, that the concrete blocks under the ramp had been put there after the event,[183] as I have noted, Mr Derham identified a photograph,[184] which shows the concrete blocks, as being similar to how the ramp was on the relevant day.  I do not accept that the defendant altered the ramp after the event, to the extent that was suggested.  In any event, Mr Fisher's evidence was that the blocks would stop the movement of the ramp back against them: that is away from the trailer, which is not relevant in these proceedings.[185]

   [183] ts 80.

   [184] Exhibit 19.

   [185] ts 390, 391.

6. In relation to the allegation that Mr Kipping drove the forklift up the ramp at speed, as Mr Nedved assumed, there is no objective evidence of the speed at which Mr Kipping drove the forklift up the ramp.  I accept Mr Kipping's explanation that there was no need for him to drive at speed up the ramp because he could see that the plaintiff had not yet removed the bulkheads as he was driving up the ramp.  In light of the evidence that the maximum speed of the forklift was approximately 12 km per hour, Mr Kipping's evidence that he was not going the maximum speed, Ms Oreo's evidence that forklifts usually went at walking pace, and Mr Fisher's estimation of the speed driven by Mr Kipping during the test on 9 January 2016, I consider it is likely that Mr Kipping was driving the forklift on the ramp at no more than 10 km per hour at most. 

7. Mr Kipping's evidence is consistent with Mr Derham's evidence that the forklift was stopped on the ramp when the bulkhead fell, albeit not at the top of the ramp, and that the bulkhead fell after the two men had a short exchange about whether there was any back freight.  They differ as to the precise time the conversation took.  In light of what they agree was said, I consider that there was at least five seconds between the time the forklift stopped and the time the bang was heard, which must have been at about the instant that the bulkhead hit the plaintiff.   Accordingly, the bulkhead did not fall, as Dr Nedved assumed, immediately upon the forklift stopping, but occurred shortly afterwards.  There is no evidence that any vibration from the movement of the forklift would continue for a period of time after the forklift stopped, and how long that period would be.  In addition, in light of that and Mr Kipping's evidence that he stopped because the trailer was not ready for unloading,[186] it is likely that the forklift had stopped before the plaintiff turned away from the bulkhead, and, therefore, before taking his hand away from the bulkhead.

   [186] ts 262, 269.

8. I consider that it is more likely than not that Mr Kipping stopped at the top of the ramp, in light of his evidence that he intended to stop before entering the trailer, because he could see that the bulkhead had not yet been removed.  Mr Derham's evidence that he called out to Mr Kipping three or four times before he stopped suggests that Mr Kipping would have travelled more than 2 m or 3 m up the ramp before he braked and stopped.  It seems more likely that Mr Kipping did not stop because he heard Mr Derham, as Mr Derham thought, but heard Mr Derham when he had stopped.  This also supports a finding that he did not stop suddenly, whether or not that was Mr Derham's perception.  I prefer Mr Kipping's evidence in addition because, as I have already noted, Mr Derham admitted difficultly identifying what he recalled from this occasions and other occasions at the defendant's depot, a difficulty that appears to be confirmed by his recollection concerning the load of broomsticks, which is contradicted by the evidence concerning the contents of the load.  There was also documentary evidence of the diary kept by Mr Kipping and Ms Oreo as a matter of routine, that Mr Derham was wrong in his recollection that, on this occasion, there was a particular reason to rush, that the goods being delivered needed to be loaded on a ship.[187] 

   [187] Exhibit 25, ts 183 as to Mr Derham's evidence.

9. I found Mr Derham's evidence concerning whether driving a forklift on the ramp caused vibration in the trailer unsatisfactory.  He did not identify the possibility of vibration from the ramp until after cross‑examination first concluded, and then it was an afterthought.  When first giving his evidence, Mr Derham did not refer to vibration of the ramp causing the trailer to move, but referred instead to the vibration of the forklift entering and leaving the trailer.  He repeated this cause of vibration when referring to forklifts entering trailers from concrete docks. 

10. Mr Derham did not say he had personally experienced any vibration in the trailer from vibration on the ramp until the last question he was asked in re-examination, when the proposition was expressly put to him.  Contrary to that evidence, when initially asked about the possibility of the ramp causing vibration in the trailer, he said he had not seen it, and did not say he had on any occasion experienced it.  At that time, Mr Derham gave an explanation for why he believed that the trailer would vibrate if the ramp vibrated as a matter of assumed logic, saying 'they are one' and referring to 'the laws of physics'.  The plaintiff used similar words.  I do not accept Mr Derham's evidence on this point.

11. I do not accept the plaintiff's evidence either that he felt the trailer shake, or jerk, when the forklift was on the ramp.  My assessment of his evidence confirms my impression at trial, that the plaintiff was not truthful in saying that he had any recollection of movement in the trailer before he was hit on the head.  It may be that he had on an earlier occasion felt vibration on the ramp when he stood on it as the forklift came up the ramp, and he may subsequently have extrapolated this as the cause of the bulkhead falling.  That may explain the reference to shaking in the 2014 incident report.  The plaintiff may now genuinely believe that to have been the cause.  However, I do not accept the plaintiff's evidence that he has any memory of feeling the interior of the trailer shake, vibrate, or jerk immediately before the bulkhead fell on him, or on any other occasion.[188]

    [188] To the extent that was, in fact, his evidence (see [60], [63], [64] and [65).

12. The plaintiff and Mr Derham largely spoke of shaking or vibration, as did Mr Marchant.  I do not consider that there is any significant qualitative difference in the witnesses' use of the descriptors 'shake' or 'vibrate'.  However, I consider that the plaintiff used the word 'jerk' late in his evidence to suggest a sudden, forward, movement of the trailer, and consider this is qualitatively different from what had been described before that point.  I consider it was said late in the plaintiff's evidence to bolster the plaintiff's case that there was a sufficiently forceful movement of the trailer to cause the trailer to dislodge.  

13. There is no evidence that the trailer did vibrate or shake or move in any way other than, possibly, moving slightly in a downwards direction when the forklift was on the ramp, as a result of the operation of the airbags.  The only person to give evidence of that was Mr Marchant and his evidence was that any such movement was minimal.  Given that his evidence was that any experience of this was when he was standing in the trailer, and his focus appeared to be on the noise of the airbags, and his earlier evidence that you did not feel any vibration, I consider that the downward movement of the trailer, if any, must have been very slight indeed.  That would be consistent with the evidence of Mr Kipping, Ms Oreo and Mr Lucas, and the observations of Mr Fisher, to the effect that they did not observe any such movement. 

14. There is no evidence to support the description of movement Dr Nedved said had been described to him as having occurred on 22 July 2014, as described in par 128. 

15. Mr Kipping, Ms Oreo, Mr Lucas and Mr Marchant impressed me as reliable witnesses, giving consistent evidence, and making concessions about matters that they could not recall.  Overall, I prefer their evidence to that of the plaintiff and Mr Derham, for the reasons I have expressed.

16. I also accept the evidence of Mr Kipping, Mr Lucas and Mr Marchant that it was the defendant's usual practice to have a person inside the trailer during unloading, for the purpose of ensuring that unloading could happen without delay in removing the stacker bars and pogo sticks.  As such, given that the plaintiff and Mr Derham had attended the defendant's depot on many occasions beforehand, and the description by Mr Kipping and Mr Lucas of the usual manner of unloading, it is likely that both had on some previous occasions been in the trailer when a forklift was on the ramp.  That this had occurred before is also consistent with Mr Derham's evidence of the conversation with Mr Kipping, which was to question whether there was any load to take on the return journey to Perth, and not to question why Mr Kipping was driving the forklift on the ramp when the plaintiff was still in the trailer.  It is also consistent with the plaintiff having been in the trailer when the forklift was on the ramp, as his evidence, in part, suggested and his evidence that he was not expecting any movement as noted in par 59 above.   

1. Having watched the footage, I find that Dr Silbert has accurately recorded the factual contents of that footage, leaving aside for the time being the opinions he expressed.

2. Dr Silbert said in that report:

   It is noted that here was a significant period of video surveillance on 12 June 2015, the day of my clinical consultation. 

   At the consultation when I reviewed him there were some difficulties with his high level balance, such that I was reluctant to complete the Unterberger's test.

   His repetitive bending, looking under chairs after my consultation would suggest that he had a better balance than he presented to me at the consultation.

   …

   At the time of the video surveillance in particular that on 12 June 2015, [the plaintiff's] pattern of movement was normal and he did not appear to be at all impaired by any difficulties with dizziness.

   Although his vestibular function testing may have showed a mild peripheral vestibular disturbance, I feel he is not significantly impaired by it on the basis of my neurological assessment of 12 June 2015 and the indirect observation of the video surveillance.  I had given him the benefit of the doubt at my 12 June 2015 assessment as ear pathology (e.g. perforation) had not been excluded.  In hindsight with the subtle neurological findings and the video surveillance, I think that he could have returned to truck driving at that stage. 

   He did report symptoms of depression, and I noted it was significantly worse at the second consultation when he reported there had been a marital separation.

3. In his oral evidence Dr Silbert said that this footage had definitely caused him to alter his opinion about what had occurred at the first consultation referred to in his report dated 21 July 2015, however he was not surprised by it in terms of his report of October 2017.[275]  He said that:

   … we know when people have trauma they're at their worst initially.  And then they start to get better … His injury was July 22, 2014 and without going into what I wrote about the November 26, November 29 and January 2015 … his movements on those days did not indicate any balance concerns, caution about movement, concerns about bending over.  And there are multiple examples of that … people who have balance problems are very cautious in a shopping centre because someone moving towards them may cause them to have to change direction quickly, which they can't do because of their balance problem.  He showed no difficulty as you can see in what I wrote … And then on January 27 … sort of reaching on one foot, reaching back the other way on the other foot.  It is very difficult to do that if your balance is affected.  And then if we skip ahead to the 12 June, which is the same day that I saw him, when I saw him in the consultation room he was very cautious in all his movements yet in the surveillance on that day … there was no protection of his balance that we would do if we had balance problems.

   [275] ts 267.

4. Referring to the footage of the plaintiff looking under the chair, Mr Silbert said he did not think that the plaintiff had BPPV on 12 June 2015.  Although he said he thought the dizziness reported was related to anxiety and depression he also said:

   … it does concern me as a clinician when someone tells me one thing and then I see them doing something completely different on the same day in terms of the veracity of what they are telling me.

5. Further on that point Dr Silbert noted, in some detail, inconsistencies in the plaintiff's presentation at the consultation on 12 June 2015, essentially saying he gave him the benefit of the doubt because he thought he may have an ear perforation, and then said:[276]

   Having said that when I looked at the video surveillance he was so good on that surveillance  I mean, to be so good with the section before, so bad in my consulting rooms, so good immediately after is really not consistent with someone who had significant organic dizziness.

   [276] ts 278.

6. Dr Silbert was of the view that the plaintiff had suffered BPPV immediately after the accident, and said that had improved.[277]  When asked by the plaintiff to explain how he could have days when he felt fine and days when he felt extremely bad, Dr Silbert said that damage to a balance mechanism would be overcome in about eight weeks and that the only thing that could cause the feeling dizziness and how well and unwell the plaintiff felt to change so quickly was depression and anxiety.[278]  He said, however, that he would defer to a psychiatrist's opinion.[279]

Dr Eileen Tay

[277] ts 272.

[278] ts 273.

[279] ts 279.

1. The defendant also called Dr Eileen Tay, who has been a consultant psychiatrist since 2006. 

2. Dr Tay saw the plaintiff on 11 October 2017 and prepared a report dated 17 October 2017.[280]

   [280] Exhibit 22.

3. Dr Tay said in her report that the plaintiff was an animated, agitated and aroused historian, and was angry and had a sense of injustice at the accident happening at all.  She said that the assessment lasted 1 hour 40 minutes and the plaintiff did not repeat himself at any stage in the assessment, but could continue without losing track of the conversation.

4. Dr Tay said in the report it was evident that the plaintiff was stressed not just as a result of his persistent dizziness (with headaches being less of a problem) noting that the plaintiff was dealing with the stress of an estranged marriage and separation, and was angry at his wife's financial demands.

5. Dr Tay also said in the report that:

   I believe that [the plaintiff] does fulfil criteria for an agitated depression with a somatic focus due to his persistent physical symptoms which have continued in spite of specialist intervention and attempts at treatment.  Due to [the plaintiff's] concrete thinking, it would be difficult for him to benefit from psychological treatment and he is more likely to benefit from medication as the first line of treatment.  Once the worse of his agitated depressive symptoms improve, then he may well benefit from physiotherapist imput.

6. Dr Tay explained in her evidence that a somatic focus was a focus on physical symptoms arising from anywhere in the body.  She said some people struggle to express how they feel in emotional words so they express it through physical symptoms.  The person in that situation would, however, still be experiencing the physical symptoms.  The diagnosis would be by exlusion of the organic causes, leading to the conclusion that the symptoms must be due to a psychological condition.[281]

   [281] ts 440 - 441.

7. Dr Tay said in her report that her diagnosis was of a major depressive episode with prominent anxiety and somatic focus, based on the plaintiff's presentation at the assessment and the diagnostic criteria, namely interrupted sleep, anhedonia,[282] and loss of appetite and weight, some of which was circumstantial given his marital situation.

   [282] Inability to feel pleasure or happiness.

8. Dr Tay provided a further report after watching the surveillance footage, dated 1 December 2017.[283]  Dr Tay said that there were inconsistencies between the symptoms reported to her and the way the plaintiff appeared to be functioning in the footage.  In particular, Dr Tay said that the plaintiff's interactions during the footage showed him moving freely, including bending, turning his head and neck freely without difficulty, which were inconsistent with his reports to her of persistent severe problematic episodes of dizziness as persistent dizziness.  Dr Tay also said his interactions with members of the public would appear to be inconsistent with his reported levels of psychiatric disability.

   [283] Exhibit 23.

9. Dr Tay concluded:

   The surveillance DVDs would cause me to alter my diagnosis of a major depressive episode arising as a result of the alleged physical sequelae of the accident.  My diagnosis was based on [the plaintiff's] reported severity and persistence of his apparent post-syndrome suffered as a result of the accident, and there would appear to be inconsistencies with the diagnosis of post-concussion syndrome or any demonstrable vulnerability to his complaints of persistent dizziness and fear of falling as a result of the dizzy episodes…His state of distress when I assessed him in October 2017 may well be arising from the marital situation as he reported to me as well as other concurrent psychological stressors.

10. Dr Tay said in evidence that the surveillance video demonstrated that the plaintiff was able to move around quite freely, in a way inconsistent with someone reporting severe spells or episodes of dizziness.  The surveillance footage, she said, did not demonstrate a persistent and severe depression to warrant the treatment she had discussed with him.[284]

    [284] ts 429 - 430.

11. In cross-examination Dr Tay said that the plaintiff had complained of suffering dizziness all the time and a constant headache.  She later clarified that the plaintiff had said that the attacks of dizziness occurred from time to time, but that the plaintiff was scared all the time of suffering an attack.[285]

    [285] ts 431 – 442.

12. Dr Tay said what struck her most was the footage of the plaintiff's ability to more than once put his head down and look under a chair which was inconsistent with someone who was experiencing dizziness and also inconsistent with someone afraid of having an episode of dizziness.[286]

    [286] ts 442 – 443.

13. Dr Tay said that, as a result of the surveillance footage, she would have to revise her view expressed in the report that the plaintiff remained unfit for work and considered he had capacity for work.[287]  She did say that, if the plaintiff genuinely believed he should not drive a truck, then he probably should not be driving one.[288] 

    [287] ts 444 – 445.

    [288] ts 445F surveillance.

Conclusions on the evidence of damage

1. I accept that the plaintiff suffered a significant blow to the head that caused him to fall to the ground and become immediately groggy. 

2. The Nickol Bay Hospital notes record that the plaintiff had not lost consciousness, when he was seen on 22 July 2014.  Neither Mr Derham or Mr Kipping gave evidence of a loss of consciousness.  The first mention by the plaintiff of a loss of consciousness was in the incident report 9 days later where he said that 'I think I got knocked unconscious because I can't remember Craig taking the bulkhead off me.  I don't remember what happened after I got hit'.[289]  I do not accept the plaintiff's evidence at trial that he now recalls he was knocked unconscious, nor is there any other evidence upon which I can make that finding. 

   [289] Exhibit 5, page 2.

3. However, the blow was still significant, and did cause the plaintiff to feel nausea and intermittent dizziness and a headache for some time after the accident.  I accept that these symptoms continued for some time after the accident and that, while he suffered from the dizziness and the headaches, he was unfit to work as a truck driver. 

4. I consider, however, that these symptoms diminished and ceased within months after the accident, and I do not accept the plaintiff's evidence that those symptoms are ongoing.

5. The only two specialists to given any evidence were called by the defendant.  I accept Dr Silbert's conclusion that, when he saw the plaintiff on 12 June 2014, there was no organic cause, resulting from the accident, for the symptoms of dizziness that the plaintiff complained of.

6. In my view, whilst Dr Silbert did leave open the possibility that the plaintiff may genuinely have been suffering dizziness, as he said, as a result of depression and anxiety, it was clear that Dr Silbert could not, in fact, reconcile the surveillance footage with what he had seen at the consultation on 12 June 2015.  In any event he deferred on that point to the psychiatric opinion. 

7. The only psychiatrist to give any evidence was Dr Tay, and I accept her evidence that the plaintiff did not suffer a depressive illness as a result of the accident.  The submission was that the depression flowed from the ongoing physical injuries.  However, as I have found, the plaintiff had recovered from those injuries well before he first complained of depression to his GP in August 2015, or to Dr Silbert, on 12 June 2015.  In any event, I consider that the plaintiff significantly exaggerated the extent of his depressive symptoms.

8. It is not entirely clear to me what Dr Tay intended by her evidence that, if the plaintiff genuinely holds the view that he should not driving a truck, he should not do so.  However, there is no evidence that, if he does genuinely hold this view, about which I have considerable doubt, he does so as a consequence of the injuries suffered in the accident. 

9. I do not accept Dr Zawadzki's evidence concerning the plaintiff's dizziness, referred to in pars 245 and 251, as it is contrary to the evidence, and based only on what the plaintiff told him.

10. It may be that the plaintiff's experience of ear infections, which pre and post-dated the accident, caused some ongoing dizziness.  However, that does not explain the plaintiff's presentation to Dr Silbert on the same day as the surveillance footage showed him repeatedly looking under a chair, which is entirely inconsistent with his genuinely experiencing the persistent dizziness of which he complained.  The conclusion that the plaintiff was not truthful in his report of these symptoms to Dr Silbert, and in evidence, is unavoidable.

11. Nor do I accept that the plaintiff suffers any ongoing memory loss.  The only evidence that he did so was his own assertion, which I do not accept for the reasons I have already mentioned.  It seems from the evidence I do accept that he had some slight memory loss after the accident, as a result of the blow to his head, but this is not ongoing. 

12. The plaintiff also pleads in the statement of claim that he suffered soft tissue injuries to his cervical spine, and to his left forearm.[290]  No medical evidence of this was led at trial.  No such complaint is referred to in the Nickol Bay Hospital notes, and those notes indicate there was no midline C spines tenderness and a full range of movement and power to both shoulders and elbows.[291]

    [290] Statement of claim dated 20 October 2015 at pars 11.2, 11.3.

    [291] See [236] above.

13. A complaint of neck pain is referred to in Dr Zawadzki's notes for the first time on 29 August 2014, five weeks after the accident, and then not after 17 October 2014.  Neither the plaintiff nor Dr Zawadzki gave evidence about this.  Accordingly, there is insufficient evidence upon which I could make a finding that the plaintiff had suffered a neck injury or injury to his left arm, leaving aside the views I have expressed about the plaintiff's credibility.

14. On the evidence of my assessment of the surveillance footage, and accepting as I do, Dr Silbert and Dr Tay's opinions about what that footage evidences about the plaintiff's condition at the time the footage was taken, I consider that there is no doubt the plaintiff had recovered from any physical injury suffered in the accident by 12 June 2015,[292] and that it is more likely than not that he had recovered by 26 November 2014.[293]  Accordingly, I find on the balance of probabilities that the plaintiff had fully recovered from the physical effects of the injury by 26 November 2014, and that any psychological symptoms he may now suffer were not causatively linked to the accident.

    [292] The date of the last surveillance footage and the plaintiff's attendance on Dr Silbert.

    [293] The date of the first surveillance footage.

Non-pecuniary loss

1. I consider that the injuries suffered by the plaintiff did have some impact on his enjoyment of life, for a few months after the accident. 

2. I would assess the compensation payable under this heading at $12,500.  As this is below the statutory threshold of $21,500 I cannot award any amount under this heading, by reason of the operation of s 9(1) of the CLA.

Past loss of income

1. I find that the plaintiff was more likely than not to continue to receive this income until he ceased working and that he would have worked until he was 70 years old, given that at the date of the accident the plaintiff was already over 65, he was relatively fit and able to perform the job.

2. As a consequence of my finding that the plaintiff had recovered from his injuries by 26 November 2014, he was able to return to work by at least that date. 

3. Accordingly, I calculate past loss of income at $25,117 being 95 days at $96,500. 

4. I would allow interest on the amount of $25,117 in the sum of $3,470 calculated at a rate of 3% per annum to the date of judgment on 4 July 2019, being 1,681 days. 

5. I find there is no loss of superannuation, as the evidence was that his employer continued to pay superannuation, which is not a repayable worker's compensation payment.

6. Accordingly, had I found the defendant liable, I would award $28,587 under this head.

7. The plaintiff is also entitled to recover an additional amount in respect of income tax paid for refundable worker's compensation receipts, being the entire amount of $25,117:  Fox v Wood (1981) 148 CLR 438. I calculate that the additional tax paid on this amount, in light of the plaintiff's tax assessment in the year ending 30 June 2015 would be $9,795.[294]

   [294] The plaintiff's taxable income was $137,165.  The amount of $25,117 would be taxed at a rate of 37% and a 2% Medicare levy would also be imposed, totalling an effective tax rate of 39%.

Medical expenses

1. The plaintiff's amended particulars of damage dated 2 November 2017 claimed special damages for past medical and vocational rehabilitation expenses payable under the Worker's Compensation and Injury Management Act 1981 (WA) sch 1, cl 9, cl 10, cl 17, cl 18, cl 18A and cl 19, the sum of $20,481.

2. There is no evidence before me of any medical expenses incurred by the plaintiff, as a result of the accident. 

3. The plaintiff did attend Dr Zawadzki on seven occasions to 26 November 2014.  It is also likely that he required some analgesia for headaches for some period, not more than a few months, after the accident.  However, I do not consider that he required any physiotherapy, neurological review, or medication beyond that.

4. Doing the best I can in the circumstances, had I found the defendant liable, I would award $1,500 under this head, as a global award, including interest.

Future loss

1. So far as the future is concerned, based on my findings, I do not accept that the plaintiff suffers any ongoing effects of the accident which prevent him from working, or requires further treatment. 

2. Had I come to a conclusion in the plaintiff's favour, I would have found there was no future loss of income earning capacity, as he is now over 70 years of age, as a result of finding that he would have ceased working at that age.

Gratuitous services

1. The plaintiff has not pleaded any claim for gratuitous services.

2. In any event, there is no evidence that the plaintiff required any gratuitous service to be provided to him that was not already provided by his wife prior to the accident, or that he was in need of any such service as a result of injuries suffered in the accident.

Conclusion on quantum

1. For these reasons, had I determined the issue of liability for the plaintiff, I would have determined to award the plaintiff damages in the sum of $39,882, calculated as follows:

1.	Non-pecuniary loss	Nil
2.	Past loss of earning capacity	$28,587
3.	Past medical expenses	$1,500
4.	Fox v Wood award	$9,795
5.	Future loss of earning capacity	Nil
6.	Future medical expenses	Nil
Total	$39,882

Conclusion

1. For the reasons I have given the plaintiff's claim is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

HB
Associate to Judge Vernon

4 JULY 2019