Metri v Nestlé Australia Ltd - [2021] NSWSC 343

Supreme Court

New South Wales

Medium Neutral Citation: Metri v Nestlé Australia Ltd [2021] NSWSC 343
Hearing dates: 15-19, 22-24 March 2021
Decision date: 07 April 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Judgment for the plaintiff against the first defendant.
(2)   Judgment for the second defendant on the plaintiff’s claim.
(3)   Judgment for the cross-defendant (second defendant) on the cross-claim.
(4)   Reserve costs.
(5)   Direct the parties to calculate the judgment sum in accordance with the reasons set out above and forward such calculation to my Associate within 7 days.
(6)   Grant liberty to apply to restore the matter for further argument on the judgment sum, or the appropriate costs orders.

Catchwords:
NEGLIGENCE — alleged failure to repair forklift when fault identified four days previously — whether fault could be replicated — circumstances in which negligence can be proved although precise mechanism unknown — superior knowledge of employer not passed on to repairer of forklift
NEGLIGENCE / TORTS — Defences — Contributory negligence — plaintiff’s conduct in applying brake to forklift reasonable and motivated by concern for other workers in vicinity
NEGLIGENCE — Damages — Economic loss — Earning capacity — no residual earning capacity — no viable alternative occupation proposed or available
TORTS — General principles — Damages
LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant — evaluative judgment requiring legal advice — relationship between ss 50C and 50D of Limitation Act 1969 (NSW) and s 347 of Legal Profession Act 2004 (NSW) — provisions enacted by the same Parliament to be read harmoniously

Legislation Cited:
Civil Liability Act2002 (NSW), ss 3B, 5B, 5C, 5D, 5R
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Legal Profession Act 2004 (NSW), ss 347, 348
Legal Profession Uniform Law Application Act2014 (NSW), Sch 2 cl 4, cl 5
Limitation Act 1969 (NSW), ss 50C, 50D
Motor Accidents Compensation Act 1999 (NSW), ss 126, 127, 131, 134, 138, 141B
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; [2009] HCA 48
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Australian Woollen Mills Limited v F S Walton and Company Limited (1937) 58 CLR 641; [1937] HCA 51
Baggs v University of Sydney Union [2013] NSWCA 451
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213; [1966] HCA 3
Chung v Anderson [2004] NSWCA 321
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5
Fox v Wood (1981) 148 CLR 439; [1981] HCA 41
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18
TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Texts Cited:
Australian Standard, AS 2359

Category: Principal judgment
Parties: Toufic Metri (Plaintiff)
Nestlé Australia Ltd (First Defendant / Cross-claimant)
Linde Material Handling Pty Limited (Second Defendant / Cross-defendant)
Representation:
Counsel:
M Cranitch SC / T Hickey (Plaintiff)
G Parker SC / D O’Dowd (First Defendant / Cross-claimant)
M McCulloch SC / T Berberian (Second Defendant / Cross-defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff)
Sparke Helmore Lawyers (First Defendant / Cross-claimant)
Moray & Agnew (Second Defendant / Cross-defendant)

File Number(s): 2015/82320

Judgment

Introduction

Toufic Metri (the plaintiff) claims damages for injuries he sustained as a result of a forklift accident, the most serious of which involved damage to his left lower limb which led to its amputation below the knee. He alleges that his injuries were caused by the negligence of his employer, Nestlé Australia Ltd (Nestlé), the first defendant, and/or Linde Material Handling Pty Limited (Linde), the manufacturer and repairer of the forklift, the second defendant.
The plaintiff’s accident occurred on 16 August 2012. He commenced proceedings under the Motor Accidents Compensation Act 1999 (NSW) by filing a statement of claim on 18 March 2015 which named Nestlé as the sole defendant. On 18 April 2016, Nestlé, which denied liability to the plaintiff, filed a cross-claim against Linde, alleging, relevantly, that Linde’s negligence had caused the accident.
The plaintiff’s case, as ultimately pressed, was as follows. Nestlé was negligent in failing to ensure that forklift 432 was taken out of service unless and until the defect identified in forklift 432 by Jason Connell, another forklift driver, on 10 August 2012 (six days before the plaintiff’s accident) had been identified and remedied. Alternatively, the plaintiff submitted that Nestlé was negligent in failing to provide a forklift which was appropriately designed or fitted (with either guards, a seatbelt or contouring to the seat) to reduce the prospect of a driver becoming dislodged from the seat in the event of a sudden change of movement by the forklift. The plaintiff further alleged that Nestlé had failed to adequately maintain its forklifts.
By further amended statement of claim filed on 12 June 2019 the plaintiff added Linde as a second defendant. The plaintiff alleged that Linde was negligent in failing to repair forklift 432. Linde denies negligence and further alleges that the plaintiff’s claim is not maintainable by reason of s 50C of the Limitation Act 1969 (NSW).
Mr Cranitch SC, appeared on behalf of the plaintiff with Mr (Ty) Hickey (not to be confused with John Hickey, an expert retained by Nestlé). Mr Parker SC appeared with Mr O’Dowd for Nestlé. Mr McCulloch SC appeared with Ms Berberian for Linde.

The facts

The plaintiff’s background

The plaintiff was born in Lebanon in 1968. He completed school at the age of 18, to the equivalent of Year 12, at the Akkar High School. He was fluent in French and Arabic. He migrated to Australia at the age of 20.

The plaintiff’s employment history

The plaintiff’s employment at Franklins

Upon his arrival in Australia, the plaintiff completed a six-week full-time intensive English course before commencing work as a licensed forklift driver at Franklins’ site at Chullora. The plaintiff worked full-time for Franklins from 1989 until he was made redundant in August 1998. The forklifts he drove there were manufactured by Linde and were the same forklifts as those he subsequently drove when employed by Nestlé.
In about 1994, the plaintiff injured his neck and back in the course of his duties at Franklins. He made a workers compensation claim but did not take time off work and recovered completely. He had been very reluctant to take time off work for the injuries as he did not want to jeopardise his regular overtime on Saturdays and Sundays. The overtime pay made a significant difference to his weekly earnings and his capacity to support his wife, Georgette, whom he married in 1992, and with whom he had four children: Samara (born 1993), Matthew (born 1994), Joelle (born 2000) and Martin (born 2001).
Between being made redundant from Franklins in August 1998 and obtaining full-time employment with Nestlé in April 1999, the plaintiff worked as a forklift driver for a Mexican food company in Rooty Hill and, subsequently, for Beacon Lighting in Auburn. For the first four months of his employment with Nestlé, the plaintiff continued to work at Beacon Lighting but, ultimately, found that it was too demanding and resigned from his position at Beacon Lighting to dedicate himself to his employment with Nestlé. He worked at Nestlé’s Arndell Park site. All references to Nestlé’s premises in these reasons are references to the premises at Arndell Park.

Persons involved (directly or indirectly) in the events surrounding the plaintiff’s accident or in giving opinions on matters associated with it

In order to understand the roles of various witnesses and others referred to in the evidence it is necessary to give some background.

Staff of Nestlé and the reporting hierarchy

David Hix

David Hix was the director of the Australiana section of Nestlé. The Head of Physical Logistics reported to him.

David Neighbour

David Neighbour was appointed to the position of the Northern Distribution Centre Manager in 2011. His role was to oversee the operation and management of the physical operations and ensure that day-to-day activities were undertaken at the Arndell Park premises. His role in relation to the reach forklifts was to ensure that they were used and maintained in a safe manner. He reported to the Head of Physical Logistics.
In 2012, Carol Lacy was the operations manager. She reported to Mr Neighbour. The shift managers reported to her.

Brett Lloyd

In 2012, the relevant line manager was Brett Lloyd, who had been employed by Nestlé since 2004, originally as a forklift driver. He was subsequently promoted to shift supervisor and line manager. As line manager, Mr Lloyd was responsible for all the labour on the floor, including ensuring that there were sufficient workers to get through the workload. He was responsible for 23 permanent staff and 6 casual staff who each reported directly to him. Mr Lloyd was the plaintiff’s direct supervisor for about a year before the accident. Mr Lloyd left the Arndell Park site in late 2012 or early 2013.

The plaintiff

The plaintiff was a forklift driver, who also worked as a picker. He usually worked inside the warehouse on reach forklifts but, from time to time, he was called upon to drive a counterbalance forklift outside.
When the plaintiff began working for Nestlé in 1999 he was rostered on night shifts. In 2003 he changed to the afternoon shift. In about 2009 he worked for a short period on the day shift but from about 2010 he worked on the afternoon shift.
On average, the plaintiff worked overtime between two and three days a week. He worked more overtime than any of his peers. He tended to be offered overtime because he was known to be willing and was regarded as an experienced forklift driver who was good at his job. Mr Lloyd described the plaintiff as a “motivated person” and said that he “never had any issues with [the plaintiff’s] work performance.”
The plaintiff was a member of the National Union of Workers (the Union) committee within Nestlé. He was also a member of Nestlé’s Occupational Health and Safety Committee (OH&S Committee).
The plaintiff had never been involved in a forklift accident prior to 16 August 2012.

Jason Connell

Mr Connell was an experienced forklift driver who had worked at Nestlé’s Arndell Park site since 2003. He usually worked on the day shift (from 7.10am until 3.10pm). Forklift 432 was his regular forklift. On 16 August 2012 he was working as a picker and therefore did not drive forklift 432 on that day. Although Mr Connell’s statement was filed by Nestlé, he was called as a witness in the plaintiff’s case. He was not cross-examined by Mr Parker, although he was cross-examined by Mr McCulloch.

Other persons employed by Nestlé who are referred to in the evidence

In 2012, Troy Tabone was the facilities manager at Nestlé’s Arndell Park site. Paul Walters and Hien Nguyen were forklift drivers who were working at the time of the plaintiff’s accident, not far from where it occurred. Tony Bilby was a shift supervisor.
Michelle Balewai worked in Nestlé’s Occupational Health and Safety area and came to the scene of the accident soon after the plaintiff fell from the forklift. She also visited the plaintiff in hospital and spoke to Samara, the plaintiff’s eldest daughter.
Mark Massoud, an employee of Nestlé who worked at its site at Rhodes, was called in by Nestlé to assist Ms Balewai in the investigation of the plaintiff’s accident.

Staff of Linde

Jon Gorman

In 2012, Jon Gorman was the Technical Support and National Training Manager for Linde. Mr Gorman was qualified as a fitter and turner machinist and had over 40 years of experience working with Linde. He was neither an engineer nor a computer expert, nor did he have qualifications in information technology.

Carlos Raad

Carlos Raad was a forklift technician. He completed the Technical Baccalaureate in mechanical engineering and qualified as a motor mechanic in Lebanon before migrating to Australia as a skilled migrant in 2004.
Mr Raad was employed by Linde as a technician in about January 2006. As at August 2012, his van was fitted with a fixed terminal which set out the job to be done. As he was often working away from his van, he would generally receive an SMS or a call, informing him of a particular job and the location of the machine to be repaired or serviced and he would make his way to the job.
Mr Raad was the technician to whom Linde allocated the job of repairing forklift 432 on 13 August 2012.

The plaintiff’s family

Georgette Metri

The plaintiff’s wife, Georgette, gave evidence about the effect of the accident on the plaintiff and on family life, as well as the care she has provided to the plaintiff and the division of household tasks between them before and after the accident.

Samara Metri

The plaintiff’s eldest daughter, Samara, gave evidence and was cross-examined about retaining Mark Nelson as the solicitor for her father, filling in the claim form for damages under the Motor Accidents Compensation Act, and the care she has provided to her father, as well as the effect of the accident on her father and on family life.

Matri Metri

Matri, the elder of the plaintiff’s two sons, also gave evidence about the effect of the accident on his father and the care he has provided to his father. He was not cross-examined.

Expert witnesses

John Hickey, a qualified mechanical engineer, was an independent expert retained by Nestlé to investigate the plaintiff’s accident. He was called by Nestlé to give evidence in the proceedings. Grant Johnston and Roger Lewis, who were both qualified mechanical engineers, were called by the plaintiff. Dr Tim White, who was also a qualified mechanical engineer, was called by Linde.

Types of forklift, their mode of operation and their repair and maintenance

The two main types of forklift

Before turning to the plaintiff’s employment at Nestlé, it is necessary to make findings about the environment in which he worked and the forklifts which he operated.
Forklifts, which are also referred to as “forks” or “trucks” fall into two categories. “Counterbalance forklifts” are powered by diesel, have rubber tyres and are operated outdoors. “Reach forklifts” are designed to operate indoors, typically in warehouses and factories, and are powered by an electric battery. Reach forklifts tend to travel at much slower speeds than counterbalance forklifts and may have in-built restrictions to limit their maximum speed.
Nestlé used counterbalance forklifts for outside work and to load and unload trucks in the loading dock. It used reach forklifts for movements within its warehouse. There were 16 reach forklifts in operation in the period leading up to 16 August 2012. Nestlé’s warehouse covered an area of 10-acres and had an internal capacity for about 42,000 pallets on racks and 17,000 in the refrigerated compartments. The warehouse had a concrete floor. There were spaces between the concrete slabs to allow for expansion and contraction at the joints.

The provenance of forklift 432

These proceedings concern the operation of reach forklift 432. Forklift 432 was one of a number of similar forklifts manufactured by Linde which were initially leased by Nestlé in 2003 for use in its Arndell Park premises.
When the leases for the (reach) forklifts expired, Nestlé purchased the forklifts. Nestlé purchased forklift 432 from Linde in October 2010. As at 2008, Nestlé intended to replace these forklifts with a newer model which was fitted with seatbelts but this did not eventuate and forklift 432 and its counterparts continued to be used at Nestlé’s premises until, relevantly, 16 August 2012. As at 13 August 2012 (according to Linde’s service records), forklift 432 had travelled 17,878km. The characteristics of reach forklifts described below apply to the batch of forklifts used by Nestlé, which included forklift 432.

The characteristics of the reach forklifts

The operation of the forklift

The forklifts were operated by a Linde Digital Computer (LDC), which functioned as the “brains” of the forklift. The LDC controlled, through software programming, the supply of power to the motor, and therefore the speed. It also produced “fault codes” to indicate faults that were detected in the forklift. Such “fault codes” were stored and could be retrieved by plugging into the forklift a laptop loaded with a program known as the “Truck Doctor”. Certain fault codes, when activated, would have the effect of putting the forklift into “turtle mode” (also known as “creep mode”), which would limit its speed to 2.5km/h. When a forklift goes into turtle mode, it slows down gradually.
Other fault codes cause the forklift to shut down immediately. When a forklift has gone into either of these modes, the minimum requirement to get the forklift to restart is to switch off the forklift with the key switch, release the park brake and operate the traction pedals (the left or right pedal).
There were three types of fault codes which the Truck Doctor recognised: power module fault codes; LDC module fault codes; and reach sensor fault codes. As at 2012, the Truck Doctor for these forklifts stored, without reference to date or time, the fault codes logged during the life of each forklift.

The configuration of the forklift

The forklifts had a high cabin in which the operator sat facing sideways to the direction of travel. The driver’s left side faced the rear of the forklift and the right side faced the tines at the front of the forklift. The drivers would typically drive loaded forklifts from the right to the left as the loaded tines were on the right side and blocked the driver’s view towards the right. The driver got in and out of the forklift through the opening to the driver’s left. The training received by the plaintiff and Mr Connell was that a driver should not get out of the forklift while it was still moving because of the associated dangers.
There was an instrument panel on the console next to the steering wheel, with various indicators, including the level of charge in the battery, which would be shown by the number of bars illuminated. There was no speedometer on the instrument panel.
The forklifts were not fitted with either seatbelts or railings to keep the driver inside the cabin. There was some contouring at either side of the back of the seat at the level of the hip, which Mr Hickey described in his evidence as “insubstantial.” The seat, which was constructed of vinyl, was relatively flat and uncontoured. It could be adjusted to suit the height of the driver.

The power which operated the forklift

The forklifts were powered by a battery, which weighed in the order of a tonne and sat beside the driver. Although a new battery would last for about 12 hours, older batteries, such as the one in forklift 432 would retain charge for as little as 6 hours. The age of the forklift also tended to compromise the efficiency of the battery charge. A crane or hoist was required to change the battery. The battery of a forklift which is in constant use needs to be changed every shift. If the battery charge drops to 20%, the battery automatically goes into turtle mode (see below).

The connection between the battery and the power module of the forklift is governed by a battery-locking sensor, which is located behind the battery wall of the forklift and operates like a switch. If the battery-locking sensor was not locked in place or became disengaged, the forklift was designed to go into turtle mode (limited to 2.5km/h), which was sufficient to drive the machine at a safe speed to the tag-out area within the warehouse for any necessary repair.
Typically, a battery-locking sensor can disengage if the forklift is being driven over rough and uneven floors or has a minor collision. Movement of the battery pack can cause intermittent changes in the speed of the forklift (without any action on the part of the forklift driver) because of the intermittent delivery of power by reason of the battery sensor not being fully and consistently engaged. Disengagement can also occur when a new battery is put in and the alignment is imperfect. If the battery sensor becomes disconnected from the battery, the forklift will shut down. Once the battery sensor re-engages, the forklift will, when either the left or right pedal is pressed by the driver, accelerate to its usual speed.

Wheels

The forklifts had three wheels, two under the tines of the fork and one under the driver’s cabin. The wheels were constructed of polyurethane, were solid, hard and had no tread as they were designed to operate in dry conditions within the warehouse.

The pedals, means of propulsion and the brakes

There were three pedals on the floor of the forklift which were operated by the driver’s feet. The left pedal operated as an accelerator and, when pressed, would propel the forklift in the direction away from the tines. The right pedal, also an accelerator, would propel the forklift in the direction of the tines. The central pedal was a foot brake, which operated hydraulically.
There were various methods of causing a forklift to slow down or come to a stop. First, the driver could release the pedal which corresponded to the direction of travel. This method, known as “regenerative braking”, operates by depriving the forklift of forward power and causes it to slow to a stop. Secondly, the driver could apply pressure to the central pedal to operate the hydraulic brake. This method was regarded as the fastest means of braking. Thirdly, the driver could apply pressure to the opposite pedal to create a countervailing force, which would also cause the forklift to slow and stop. This method was referred to as “reverse current braking”. Fourthly, the driver could apply the emergency brake, or parking brake, which was on the console of the forklift. Fifthly, there was also a “dead man’s brake” which operated automatically when the driver’s weight was no longer on the seat of the forklift.
The plaintiff was familiar with, and used, all methods of braking, other than the reverse current braking, which he regarded as both dangerous to others who might be in the vicinity and inconsistent with his training. Mr Connell confirmed his experience that a driver could make a forklift slow down more quickly by pressing the opposite pedal, which acted as a “sort of brake”.

The speed of the forklift

The maximum speed which the forklifts were capable of travelling was a significant issue in the proceedings. As there was no instrument panel on the forklifts, the driver’s estimate of the maximum speed, or a given speed, could only be a matter of impression. It was common ground that the LDC for forklifts such as forklift 432 set the nominal maximum speed of the forklift at 12.5km/h. I accept the evidence of Mr Raad, an experienced employee of Linde who regularly repaired such forklifts for Nestlé, that these forklifts would probably not have been able to reach their maximum speed of 12.5km/h in 2012 because of their age.
It was possible to reduce the initial maximum speed set by the manufacturer. However, any change in the maximum speed could be done only by plugging the Truck Doctor laptop into the forklift when the forklift was switched off. The plaintiff’s belief that a lower setting had been put in for safety reasons was, at least partly, corroborated by Nestlé’s documents which prescribed a speed limit of 10km/h within the warehouse.
Despite the apparent importance of the speed of the forklift in the proceedings, no tests capable of determining the speed with any precision were conducted. Dr White, the expert engineer retained by Linde, endeavoured to measure the speed of the forklift by mounting a camera to its frame and measuring the time taken to travel the distance of 1m between cones. This measurement was performed to assess the likelihood of the braking systems of a forklift being sufficient to generate a g-force which would dislodge the driver from a forklift. He accepted that the results were “noisy” (that is, the variability between results was substantial) because of the vibration level in the forklift, which increased with the speed of the forklift. It follows that there is no reliable evidence to determine the maximum speed of which forklift 432 was capable on 16 August 2012.
The plaintiff described the top speed of the reach forklifts at Arndell Park as a “brisk walking pace” and said that, until 16 August 2012, he had never seen a reach forklift go faster than such a pace. According to the plaintiff, reach forklifts are “usually very slow to move from a stationary position to the usual maximum speed (brisk walking pace).” He made no distinction between particular reach forklifts in this respect and said that each behaved in a similar way as far as speed was concerned. It was common ground that 12.5km/h was significantly greater than “brisk walking pace” and that a brisk walking pace would be in the order of 6-7km/h. Mr Connell, who usually drove forklift 432 on the day shift, estimated its usual speed to be about 10km/h.
I do not regard these discrepancies as affecting the credibility of the plaintiff or Mr Connell in any material way. However, they indicate the difficulties of making findings of speed and distance based on the uncorroborated evidence of witnesses, who are necessarily making estimates. These issues will be addressed further when the expert evidence is considered.

The shift system at Nestlé

The drivers of reach forklifts at Nestlé’s premises at Arndell Park worked in three shifts. The day shift ran from 7.10am to 3.10pm. The afternoon shift ran from 3.10pm until 11.10pm and the night shift began at 11.10pm and ended at 7.10am. If a worker was rostered on for a particular shift but was unable to perform that shift, Nestlé would arrange for a person from the previous shift to cover the first four hours of the shift and a person from the subsequent shift to cover the last four hours of the shift.
The forklifts were generally in operation 24 hours a day. Each worker would generally use the same forklift when working his or her regular shift. However, if a worker was required to work a different shift, or required to work overtime on another shift, the worker would usually have to work on a forklift other than the one usually allocated to him or her.
Drivers of reach forklifts who were employed by Nestlé at the Arndell Park premises were required, at the commencement of the shift, to report to the supervisor’s office to be allocated work for the shift. The parking area for the reach forklifts was in front of this office. If a driver was working a shift for which he or she was usually rostered, the driver would use the forklift which he or she generally used. However, if a driver was working on another shift or if the driver’s usual forklift was unserviceable, the driver would be allocated another forklift at the commencement of the shift.
Before commencing allocated tasks, forklift drivers were required to complete a pre-operation checklist in relation to the particular forklift, the identification number of which was required to be included by the driver at the top of the form (for example, forklift “432”), together with the driver’s name, the date and the shift (day, afternoon or night). The items on the checklist included “lights working”, “horn working”, “tyre condition”, “battery charged”, “seat – adjustable/not worn” and “hydraulic system – leaks/hoses”. The driver was to tick one of two alternatives, either “Good” or “Needs work”.
In order to perform the check, the plaintiff’s usual practice was to sit on the forklift, turn it on, release the parking brake (which was operated by a switch on the console) and move it a short distance forwards (by applying his right foot to the right pedal) and backwards (by applying his left foot to the left pedal) to make sure that it was operating normally. His usual practice for checking the item, “hydraulic system – leaks/hoses” was to check the ground beneath the hydraulic system and the hoses which travel down the mast of the forklift. If there was no leak on the ground below the mast, the plaintiff would indicate on the checklist that the condition of this item was “good”. As part of his pre-operation check of the forklift, the plaintiff would also check the battery charge, as indicated on the instrument panel on the console, to make sure that the forklift was either fully charged or sufficiently charged to last the shift.
When the checklist had been completed, it would be returned by the driver to the desk in the office. I accept that it was the plaintiff’s invariable practice to fill out such a form after checking the forklift and before undertaking his work on a particular shift. In his evidence, Mr Connell described a similar practice to the one described by the plaintiff, which is summarised above.
Nestlé would provide the forklift drivers with details of the work they were to perform and track and assess their performance of the tasks allocated to them. The forklift drivers were obliged to enter, on a computer system, details of when and where components of the tasks allocated had been completed. A tablet was attached to the forklift for this purpose. The worker would log in as a picker or as a forklift driver, depending on the tasks which the particular job entailed.
The forklift drivers used their forklifts to move pallets from one location to another within the warehouse. Pickers were required to assemble orders that were to be despatched, which required them to lift and carry boxes and place them on a pallet. They did not use forklifts for this task. The individual weights of items ranged between 2kg and 25kg, with 16kg being the most common weight.

Assessments of the risks posed by the forklifts and procedures for the operation of the forklifts

Nestlé’s 2008 Risk Assessment

From time to time, Nestlé conducted assessments of the risks posed to its employees by the use and operation of the forklifts at Arndell Park. One such assessment resulted in the production of a document dated 9 May 2008, which identified particular hazards, risks and controls relating to particular activities or equipment (the 2008 Risk Assessment). It contained a table which set out particular risks, the rating for each risk, the measure that would be effective to control the risk and the rating of the residual risk (after the control had been implemented). The risks were rated by a number in a table which reflected the likelihood of the risk ensuing and the most likely consequence of the risk. The various possibilities for the “most likely consequence” were (from most serious to least serious): “disastrous”, “critical”, “serious”, “moderate” or “minor”. The various possibilities for “likelihood” ranged from “almost certainly will occur” to “extremely unlikely to occur”.
Nestlé reviewed the 2008 Risk Assessment from time to time, including in 2010 and in 2012. The dates of its review are not material for present purposes since the following entry was in the original version published in 2008 and remained in future iterations revealed by the evidence:

Hazard

Risk

Risk Rating

Controls

Residual Risk

Not using seatbelt whilst operating forklift

Operator may fall out of forklift in the event of an incident/collision. Injury/fatality.

14

Tool box chat reminders to wear seatbelts. Monitor through BBS program. New forklifts 2009/2010 to have preventative seatbelt device in it.

6

A risk rating of 14 was associated with an event which was unlikely to occur (more than once in 3 years but less than once a year) but for which the most likely consequence is “critical”. By contrast, a risk rating of 6 was associated with an event which was extremely unlikely to occur (occurrence has not occurred and is expected to occur less than once in 3 years) and for which the most likely consequence is “serious”.
Although at the time the 2008 Risk Assessment was produced, Nestlé intended to replace its forklifts in 2009/2010 with forklifts which would be fitted with seatbelts, this did not eventuate. From April 2012, Nestlé was considering moving its premises from Arndell Park because of a change in volume of the product being moved through the distribution centre, which would have led to replacement of the forklifts prior to the plaintiff’s accident. It deferred replacement of the forklifts pending a decision on relocation.
Notwithstanding the proposals for their replacement, the forklifts, which had been in use since 2003 and which did not have seatbelts, continued to be used. None was fitted with a seatbelt or other restraining device at the time of the plaintiff’s accident. Mr Neighbour was unable to explain why seatbelts were not fitted to the existing forklifts when their replacement was deferred, apparently indefinitely. He said that if he had been in his current position at the time the decision not to replace the forklift fleet had been made, he would have engaged Linde to ascertain whether it was feasible to have seatbelts fitted to the existing forklifts. Mr Neighbour did not consider cost to be an issue because of the value which he understood Nestlé placed on safety.

Linde’s risk assessment dated 24 August 2008

In 2008, Linde undertook a risk assessment of its reach forklifts, including those of the same model as forklift 432. It produced a risk assessment dated 24 August 2008, which was tendered in the plaintiff’s case. It identified risks within a table, which included the following:

Brief Description of Hazard/Risk

Brief Description of Recommended Risk Reduction Measure(s)

…

…

Excessive speed and hard braking also has the potential to result in the operator being thrown forward in the cabin, impacting, for example, the mast or overhead guard. This could result in serious injury. The risk of this incident was assessed to be significant.

To reduce this risk, it is recommended that Linde conduct a site assessment and recommend specific risk reduction measures related to the specific site. This may include speed limiting and operational procedures as well as specific training. This risk reduction measures were considered to reduce the risks to the moderate level and in the ALARP range.

Four of the assessed high risk incidents involved vehicle tip-over resulting in the potential for the operator to fall or jump from the cabin. In this incident there is also a potential for the truck to land on the operator resulting in a fatality.

The four incidents identified to result in truck tip-over are:

-   operating the vehicle at excessive speed, particularly when cornering (this may cause the load to shift and the balance move outside the stability triangle, resulting in potential truck tip over).

-   overloaded truck or operating with the truck load at height.

-   operating the forklift close to a dock edge may result in the forklift falling into the dock if the vehicle wheel moves over the dock edge.

-   driving a forklift across an incline or turning on an incline may result in forklift tip-over.

Procedures and training are critical in managing this risk. Statistically, truck tips and falls away from the operator, this would be included in the training. No seatbelts are fitted to this truck hence the operator can jump from the truck and be impacted. The operator must be trained to stay with the truck and hold on (e.g. MTI low probability). This would maintain the risk within the ALARP range.

Linde also included other hazards which it rated, including the tipping over of the forklift with the consequence that “the driver jumps from the cabin and is struck by the overhead guard resulting in a fatality”. The required risk reduction measures for this risk were said to be as follows:

“Procedures and training are critical in managing this risk. Statistically, truck tips and falls away from the operator, this would be included in the training. No seatbelts are fitting to this truck hence the operator can jump from the truck and be impacted. The operator must be trained to stay with the truck and hold on (e.g. MTI [Medically Treated Injury] low probability) and in the ALARP [as low as reasonably practical] range.”

Linde also identified as a hazardous incident, “lack of truck control whilst braking”, which was relevantly caused by “travel at speed with load”. One of the consequences was said to be “operator thrown forward & impact the cabin (LTI [Lost Time Injury])”. The safeguards proposed were: site assessment, procedures, training, speed limits, regenerative brakes (controlled deceleration) and bump stops on truck. The required risk reduction measures were said to be:

“Site assessment will determine the maximum recommended speed limit for specified operation. Linde need to discuss this requirement with the client. Operation of the vehicle in accordance with Linde recommendations will reduce the risk to ALARP range”.

Nestlé’s procedures for safe forklift operation

On 30 September 2009, Nestlé produced and published a document entitled “NDC [Northern Distribution Centre] Forklift Procedure, Safe Forklift Operation”. The procedure, which was relevantly updated on 30 September 2011, covered both counterbalance forklifts and reach forklifts, although these were separately identified and defined in the document.
The procedure which was addressed to operators of forklifts included the following:

“…
●   Always wear seatbelts (where fitted)
…
●   Every forklift operator will operate with due caution while travelling throughout the warehouse and racking, being particularly aware of pedestrian movements, giving way where necessary.
●   DO NOT SPEED – especially in areas where there are pedestrians (less than 10km/h).
●   …
●   Every forklift operator will ensure the forklift has come to a complete stop, the handbrake is applied and the tynes are down before disembarking the forklift.
●   …
●   DO NOT JUMP OUT IF YOUR FORKLIFT IS OVERTURNING.
…
6.1   Site Rules of operating a Forklift Truck at Arndell Park DC
…
●   10[km/h] speed limits apply within the warehouse
…
●   Forklifts with a lock out or out of service tag placed on them, must not be used or operated.
…
●   All operators are to drive smoothly, refraining from excessively rapid acceleration and quick stops.
●   While operating a forklift truck all body parts ‘limbs’ must be confined to the forklift truck cabin. Feet and arms shall not hang over side of forklift.
…
●   All operators are never to operate a forklift recklessly or at an unsafe speed.
…
●   Forklift operators to look out for pedestrians and obey the 3 meter rule where practical.

…
6.1 Parking, Mounting and Dismounting the forklift unit
…
● Forklift operators are not to exiting [sic] the forklift until it completely stops.
…”

Section 6.5 of the procedure made provision for the tag-out/lock out procedure and provided that the tag-out procedure was to be used when authorised by a supervisor and that the tag-out book was required to be completed. The mechanic was to notify the shift supervisor when the repairs had been carried out. Only the repairing mechanic or the shift supervisor or “persons in authority” were entitled to remove a tag. Such a person would have to sign the book after the repair was completed.

The tag-out procedure in operation

If a fault was detected in a forklift, the usual practice was for the operator to apply a tag to the machine so that it could not be used until the fault was rectified. On occasions, the forklift would also be “locked out” to prevent its use. The details of forklifts which had been tagged or locked out would be entered in a spiral notebook which was kept in a locked cabinet in the office where the forklift drivers would enter to obtain their work allocation for each shift. Each page had a printed grid with columns labelled as follows:

Date

Item tagged out

Reason

Informed supervisor Y/N

Lock or Tag

Lock #

Name

Signature

Tag Removed Sign + Date

The final column was required to be completed by a Nestlé employee.
In addition to tagging out the forklift, its driver would generally have a conversation with the shift supervisor to elaborate on the issue which had caused the driver to tag the machine out, thereby conveying information beyond that which was recorded in the tag-out book.
Tagged or locked out machines would be repaired or serviced by mechanics employed by Linde and then, when repaired, would be returned to service. According to Mr Neighbour and Mr Lloyd, the supervisor would be expected to speak to the Linde technician to provide greater detail of the particular nature of the fault identified by the forklift operator. There does not appear to have been any formal procedure or mechanism for this to occur. The evidence does not suggest that the technician was privy to the contents of the tag-out book and the Linde service history document recorded only a brief description of the issue with the forklift.
Mr Raad said in his evidentiary statement that he usually spoke to “a supervisor at Nestlé” before working on any of the forklifts. He identified the persons to whom he spoke as being either Tony (which I take to be a reference to Mr Bilby) or, if he was not available, Troy (which I take to be a reference to Mr Tabone). He said that he would not usually have spoken to Mr Lloyd about technical issues relating to a forklift as Mr Lloyd was “operational in the warehouse” and, as far as Mr Raad was concerned, “not looking after the forklifts”.
Mr Neighbour also said that if the Linde technician needed further clarification of the issue, the technician would discuss this with the forklift operator directly.

Safety meetings conducted by Nestlé to monitor risks

Nestlé would conduct staff safety meetings (referred to as “SHE” meetings) at which any incident was raised and running totals were recorded of Lost Time Injury Frequency Rate (LTIR) and Recordable Injury Frequency Rate (RIFR). The minutes of a meeting on 14 June 2011 recorded that on 11 April 2011 the “Lock Out Tag Out” issue was raised. The following “action required” was specified:

“Who is authorised? Qualified personnel>Supervisor>Tag Issuer. Need a Tag Out Register (MB [Michelle Balewai])”.

Ms Balewai was identified as the “person responsible”. The issue was raised again on 18 June 2012 at a safety meeting which was chaired by Mr Connell. The notation said:

“log book not being completed”.

The person responsible was said to be “ALL”, which I take to be a reference to all employees. The issue was raised again at the SHE meeting on 16 July 2012, for which the plaintiff is recorded as having given his apologies. The “action required” was said to be:

“Re-communicate process to all staff as a safety chat. Process not being followed and log book not being completed.”

Once again, the person responsible was said to be “ALL”.
On 20 August 2012 (four days after the plaintiff’s accident), the “Lock out Tag out” topic remained on the agenda. On this occasion the “action required” was recorded as:

“Recommunicate process to all shifts as a Safety Chat. Process not being followed and log book not being completed – September update – process reviewed – additions done to be submitted for approval by [SHE] committee – full trace from fault to repair.”

The SHE committee’s conclusion that the process was not being followed was supported by the fact that, of the 24 tag-out events in the extracts from the tag-out book in evidence, only 5 had the final column completed (to indicate the date and signature of removal of the tag), a ratio of 21%.

The arrangement between Nestlé and Linde for maintenance of forklifts

Up until 2008 and from 2010 onwards, Nestlé contracted with Linde for the service and maintenance of its forklifts at its Arndell Park site. As at the time of the plaintiff’s accident, the terms of the maintenance agreement, which was in writing and dated 17 November 2011, were relevantly as follows:

“Preventative Maintenance
Preventative Maintenance (PM) will be affected in accordance with the servicing schedule contained in the Operator's Manual for all the equipment listed in schedule 1 or annually. The cost as detailed in schedule 1 will cover the Labour, travel, parts and sundries items to carry out the PM Service. Appropriate authorisation will be obtained from the customer prior to any additional work commencing as a result of the PM Service. Machines must be made available during normal working hours at a time convenient to you at the scheduled intervals for servicing.
Work cover requires all vehicles to be maintained by a registered forklift mechanic on a minimum of annual basis.
Hours of work
Normal working hours will be 7.30am to 4.30pm Monday to Friday, excluding public holidays.
Labour
An experienced service technician, having a detailed knowledge of the equipment will be provided as required. Wherever possible a dedicated technician will be appointed however, an alternate technician may attend breakdowns to improve response time.
Traction Batteries
Daily maintenance (including checking the electrolyte level) of Traction Batteries is the responsibility of the customer.
…”

When Linde performed work on a forklift, the technician would return the forklift to one of the shift managers or superiors, who would sign a document to indicate that the work had been done. This would provide the mechanism for Linde to issue an invoice for the work.
According to Mr Neighbour, no one from Linde had ever advised Nestlé that seatbelts or restraints ought be installed on the reach forklifts.

The performance of forklift 432 prior to 16 August 2012

Maintenance issues prior to August 2012

In February 2012, Mr Connell noticed that forklift 432 was going slowly. He approached the Linde mechanic who happened to be on site. As far as Mr Connell could tell, the mechanic rectified the problem, which meant that the forklift did not have to be tagged out.
According to the Linde Service History Listing, on 1 March 2012, forklift 432 was put in for service with the history, “no traction book light flashing”. The follow-up note recorded by Linde said:

“DIAGNOSE TRUCK, FOUND LDC POWER MODULE PLAYING UP OCCASIONALLY RESULTING IN TRUCK COMPLETE SHUT DOWN AND BOOK LIGHT FLASHING. EXPLAIN FAULT TO CUSTOMER, ORGANISE QUOTATION ON REPLACING MODULE. CUSTOMER NOT PROCEEDING WITH THIS JOB 7.7.12 SINCE FAULT HAPPENS VERY RARELY DUE TO COST.”

On 29 May 2012, Mr Connell noticed that forklift 432 did not remain stationary when neither the left nor the right pedal was depressed. Consequently, he tagged it out. It was subsequently repaired and returned to service.

Mr Connell’s evidence of what occurred on 10 August 2012

On 10 August 2012, Mr Connell worked the day shift and, as usual, was allocated forklift 432. He was driving it down an aisle and had his left foot on the accelerator pedal to cause it to travel in the direction away from the tines. His foot depressed the pedal to its lowest (maximum) position on the floor. Suddenly the forklift sped up “more than it usually does”. Without warning, the forklift decelerated, as if a handbrake had been applied, although Mr Connell had done nothing to make this happen. As there was no actual handbrake on these vehicles (although there was a park brake), I infer that he was endeavouring to convey the sensation he experienced when the forklift suddenly decelerated which, in his experience, was unprecedented.
The suddenness of the change in motion was almost sufficient to cause Mr Connell to be thrown off the forklift. Thereafter, the forklift returned to its normal cruising speed (which Mr Connell estimated to be in the order of 10km/h). He immediately stopped the forklift and drove it slowly back to the forklift parking area and tagged it out for repair.
In the tag-out book referred to above, Mr Connell recorded as follows:

Date

Item tagged out

Reason

Informed supervisor Y/N

Lock or Tag

Lock #

Name

Signature

Tag Removed Sign + Date

10/8

432

432 SPEED SENSOR ISSUE

Y

Tag

Jason Connell

[signed]

[blank]

Once he had tagged out forklift 432, Mr Connell said to Mr Lloyd, who was on duty at the time:

“… this machine has a problem. When I was driving it I was heading with my left foot on the pedal just cruising along when all of a sudden the machine sped up. It started going much faster than normal which startled me. Then all of a sudden the brakes came on and pulsed which threw me to the side a little before they quickly released. The machine then kept on cruising at its normal speed. I decided to bring it straight back here and tag it out.”

In cross-examination, Mr Connell explained that when he said that the brakes “pulsed”, he felt that the brake appeared to activate itself without the brake pedal having been touched by him. Mr Connell was an experienced forklift operator who presented as a reliable witness. I accept his description of what occurred on 10 August 2012, including what he told Mr Lloyd.
As there is an issue about how much of what Mr Connell told Mr Lloyd, Mr Lloyd passed on to Linde, it is necessary to address, in some detail, Mr Lloyd’s evidence on this topic.

Mr Lloyd’s evidence about what occurred on 10 and 13 August 2012

Mr Lloyd did not make a note of what Mr Connell had told him or what he said he had told Mr Raad. When Mr Lloyd made a statement to an investigator on 6 November 2012, he did not mention either that Mr Connell had spoken to him or that he had spoken to Mr Raad.
In his statement made on 7 December 2018 (over six years after the accident), Mr Lloyd said that recalled Mr Connell saying to him, “My machine is playing up and I have tagged it out.” He also recalled Mr Connell telling him that “[t]he machine [forklift 432] had sped up for no reason faster than normal, and suddenly braked, giving [him] a real fright.” Also in his statement dated 7 December 2018, Mr Lloyd said that Mr Connell had given him a more detailed description but that he could not recall the further detail. Mr Lloyd said that he formed the view, when he heard Mr Connell’s description, that it was necessary to tag-out the machine and have it examined by Mr Raad.
Mr Lloyd described his usual practice of speaking to the technician to relay what he had been told by the driver. Mr Lloyd concluded that, after speaking with Mr Connell on 10 August 2012, he had told Mr Raad of the problem at Nestlé’s premises on the same day, although he could not recall what he had said to Mr Raad about forklift 432.
However, after Mr Lloyd made his statement dated 7 December 2018, Linde served a statement made by Mr Raad dated 19 May 2020 in which Mr Raad said that he did not attend the Nestlé premises at Arndell Park on 10 August 2012 although he had attended on 13 August 2012. Nestlé’s solicitors showed Mr Lloyd two further documents: Mr Raad’s statement; and Mr Hickey’s report, which contained a report of what Mr Connell had said was wrong with forklift 432.
In a supplementary statement on 26 February 2021, Mr Lloyd accepted that the conversation which he had with Mr Raad had taken place on 13 August 2012 rather than, as previously stated, 10 August 2012. He also purported to be able to recall that he told Mr Raad that:

“… there was an issue with the forklift 432, that it was tagged out, and the description was around the, the forklift under acceleration, accelerated faster than anticipated. When the operator backed off, it then slowed down a lot faster than usual. No brake was activated then. Then as he accelerated again, it again picked up speed, and he actually put his foot onto the brake to slow the machine down, and then brought that machine back to the office to be tagged out.”

The inference is available from Mr Lloyd’s evidence of his usual practice, that Mr Lloyd did, in fact, relay what Mr Connell had told him: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 (Asprey JA, Mason JA agreeing). However, I am not satisfied that this actually occurred. First, the conversation between Mr Connell and Mr Lloyd took place on 10 August 2012 but Mr Lloyd did not speak to Mr Raad (if at all) until 13 August 2012, which was after the weekend. Further, Mr Lloyd’s general approach was that it was for the technician to work out the problem with the forklift and that his responsibility began and ended with making sure it was tagged out until it had been looked at by Linde. This approach is evident from the following exchange in the cross-examination of Mr Lloyd:

“Q. As a result of that, may I take it that you were interested to find out what the precise nature of the problem was which caused it to do this?
A. I, from the mechanical perspective, I guess that’s up to the Linde team to decide that, but my role was to tag that machine out so it could not be operated or injured by, or injure anybody.”

The approach is also consistent with Mr Lloyd not recalling whether he had made a point of trying to find out what the problem was that Mr Raad had discovered, once the repairs had been completed.
Mr Lloyd accepted that his conversation with Mr Connell on 10 August 2012 was the first time that he had ever heard of a forklift accelerating beyond its usual speed and agreed that he regarded it as a “very serious and startling event”. He also agreed in cross-examination that a forklift which suddenly speeds up and then suddenly brakes had the potential to cause serious injury to the operator if the operator was thrown off the forklift. However, having regard to his view about the division between his responsibilities and Linde’s responsibilities, I do not consider that the novelty and potential danger of the issue which Mr Connell had brought to his attention caused him to act any differently at the time than he usually did.
Although Mr Lloyd purported to have a recollection of the detail of this conversation, I am not satisfied that his “recollection” was any more than a reconstruction of what he would have done had he followed what he said was his usual practice of relaying to the technician what a forklift operator had told him about the problem with a particular forklift. It is understandable that Mr Lloyd’s actual memory would have faded: the alleged conversation occurred on 13 August 2012 and Mr Lloyd does not appear to have been asked about it in detail until February 2021, at which time he was shown Mr Connell’s description of what had occurred on 10 August 2012. In these circumstances, I am not satisfied that Mr Lloyd passed on to Mr Raad the detail of what Mr Connell had described to him.

Linde’s evidence about the repair of forklift 432 on 13 August 2012

Mr Gorman’s evidence

Mr Gorman taught Linde technicians, including Mr Raad, to adopt the following process when working on a forklift:

“The standard, accepted, and complete methods of testing the forklift to detect any issues are firstly to undertake a visual inspection of all parts of the forklift, secondly to test drive it, and thirdly to run the diagnostic computer software developed by Linde called the Truck Doctor.”

Mr Gorman accepted that there was nothing in this description which involved making any contact with the operator of the truck for the purpose of assisting with the diagnosis. He confirmed that technicians do not rely on the operator or the customer to tell them what the fault is. Technicians are trained to undertake the diagnosis themselves after making their own enquiries, although a customer might direct a technician’s attention to a particular area of concern. Mr Gorman explained that the reason for this approach was that the machines are very sophisticated and the customer would rarely be in a position to provide any assistance to the technician. Nonetheless, he agreed that if he was not able to replicate a fault identified by a customer, he would inform the customer of that circumstance.

Linde’s business records

A screenshot from Linde’s computer system revealed that, at 2.36pm on 13 August 2012, Linde received a service call from “Tony” which identified that a forklift (432) required attention. The details which were put into the system, apart from the identity of the machine, were limited to “machines [sic] speed is playing up”. This description was then inserted into Linde’s computerised service listing history.
Linde’s service listing history indicated that on 13 August 2012, Linde allocated the job of repairing forklift 432 to Mr Raad. Mr Raad had access to the description logged by Linde when the service call was made but he would not generally have access to what had been recorded on the tag-out records kept by Nestlé. For the purposes of these proceedings, Mr Raad has had access to what Mr Connell wrote on the tag-out for forklift 432 (“speed sensor issues”). Mr Raad said that such a description could only be a reference to the battery locking sensor and could not refer to any other issue with the forklift.
The service history listing, which Mr Raad filled in after the job was completed, recorded that Mr Raad spent an hour and a half working on forklift 432, which had, by that time, done 17,878km.

Mr Raad’s evidence

Mr Raad did not have any particular memory of the job and was dependent on the business records kept by Linde and his knowledge of his usual practice. He did not recall talking about the job to Mr Lloyd, whom he regarded as performing an operational role, and said that he usually dealt with someone called Tony. Mr Raad did not consider that what he was told by supervisors or staff of Nestlé was of particular utility, other than to direct him to the relevant area of the forklift which was to be repaired. Mr Parker put to Mr Raad that he had had a conversation with Mr Lloyd along the lines of what is set out above. Mr Raad accepted that it was “possible”. For the reasons given above, I do not accept that such a conversation occurred along the lines given by Mr Lloyd. If there was any such conversation (which I doubt), it was probably limited to what was on the tag-out (speed sensor issues). I am satisfied that Mr Raad followed his usual practice on 10 August 2012 when repairing forklift 432.
Mr Raad ran the Truck Doctor on forklift 432. The Truck Doctor diagnosed two faults: one relating to the battery locking sensor and the other relating to the reach sensor.
After having reviewed the service history, Mr Raad confirmed that he diagnosed a fault with the battery locking sensor: it was out of range and put the forklift in turtle mode when it was driving over bumps. This would cause the forklift to decelerate slowly down to 2.5km/h and then accelerate slowly to 12.5km/h. Mr Raad readjusted the battery locking sensor so that it would stay engaged with the battery tray when locked into place. Mr Raad then tested the repair by operating the unit in both directions to check that the battery locking sensor would stay in place.
He also diagnosed a fault with the reach sensor: that it was also out of range. The effect of this fault was that the reach function (mast reaching out and reaching back) would operate slowly.
Mr Raad recorded the following in the service history listing:

“AFTER DIAGNOSING FOUND BATTERY LOCKING SENSOR OUT OF RANGE, PUTTING TRUCK IN TURTLE MODE WHEN DRIVING OVER BUMPS. ALSO FOUND REACH SENSOR OUT OF RANGE CREATING FAULT CODE IN THE MODULE AND BOOK LIGHT FLASHING. ADJUST AND CALIBRATE MAST REACH SENSORS, TEST DRIVE MACHINE, OPERATION NORMAL.”

After Mr Raad had performed the repairs recorded above, he test-drove the forklift for between 20 minutes and half an hour. In accordance with his usual practice, he tested all the safety features and the steering and brakes in order to satisfy himself that the machine was operating normally. He then informed the supervisor at Nestlé that the machine had been repaired.

Subsequent use of forklift 432 between 13 August and 16 August 2012

After forklift 432 had been tagged out on 10 August 2012, there is no record of there being a problem with its performance until 16 August 2012. It was returned to service on 13 August 2012 after maintenance had been completed.
Pre-operation checklists were filled in by other workers in the intervening days. These workers were not called by Nestlé. Mr Connell had no occasion to use forklift 432 again. As set out above, it was permanently removed from service following the plaintiff’s accident on 16 August 2012.

The circumstances of the accident on 16 August 2012

On Wednesday 15 August 2012, the plaintiff worked a normal day shift and finished at 11.10pm. He went to bed, slept well and got up at about 9am on 16 August 2012.

The request to do overtime on 16 August 2012

That morning, someone from Nestlé called the plaintiff to ask him to do overtime for the last four hours of the day shift. In accordance with his usual practice, the plaintiff agreed to do the additional overtime from 11.20am before commencing the afternoon shift at 3.10pm.

The allocation of duties and the allocation of forklift 432

On 16 August 2012, the plaintiff arrived at Nestlé’s Arndell Park site at about 10.40am. He waited in the staff meal room until it was time to begin his shift. His usual forklift, 430, was driven by the person who usually drove it for the day shift. Mr Lloyd was the line manager for the day shift that day.
The plaintiff went into the supervisor’s office at 11.20am. He was allocated forklift 432 and told to do “put aways”, which involved using the forklift to move pallets of incoming stock to racks identified by the computer screen in his forklift. The plaintiff could not recall a previous occasion on which he had driven forklift 432. There were no tags or lock-outs on forklift 432 which indicated that it ought not be used.
Mr Connell was also working the day shift (commencing at 7.10am and concluding at 3.10pm) but as he was working as a “lay picker”, he did not need to drive a forklift. I infer that this was why forklift 432, which was Mr Connell’s usual forklift, was allocated to the plaintiff.

The completion of the pre-operation checklist

Although Nestlé could not locate the pre-operation checklist for forklift 432 on 16 August 2012, I accept the plaintiff’s evidence that he followed his usual practice of completing a pre-operation checklist for forklift 432 before commencing work on the day shift. He did not note that there were any concerns about any of the items on the list, although he observed that the seat on forklift 432 was sloping to the left and was “badly worn out”.
He explained in his evidence why he had not ticked the box which indicated that the seats needed work:

“… if you want to talk about the seats, the whole fleet needed seats. So people weren’t concentrating on that. That fleet was there for ten years. Five years over the, the lease that was supposed to be, that they took in the first place. So if we want to go about the checklist, the whole fleet shouldn’t be on the floor.”

After returning the pre-operation checklist to the office, the plaintiff went to forklift 432, logged onto the computer screen and began working.

The incident

At about 1.25pm, the plaintiff was driving the forklift from the dock to the rack section in accordance with an instruction shown on his computer screen within the forklift to proceed to aisle AD to collect a pallet to bring to the assembly line. He pushed the right pedal with his right foot to move the forklift to its full speed, which he described as a “brisk walking pace”. The forklift went over a gap in the concrete floor of the warehouse which caused it to rattle.
At that point, the forklift accelerated to a speed which the plaintiff had never before experienced in a reach forklift. He said he could hear a whistling noise from the motor, which smelled as if something was burning. He lifted his foot from the accelerator but, instead of slowing, the forklift kept getting faster. He was very concerned about the speed of the forklift because he could see two other workers, Mr Walters and Mr Nguyen, coming out towards the main path, on which forklift 432 was travelling. Suddenly the forklift decelerated, which caused the plaintiff to lose balance, come off the forklift and fall onto the ground. His left arm went under his back. The forklift continued to move towards him and went over his left leg. The plaintiff started to scream with pain.
Mr Walters and Mr Nguyen were the first on the scene. Mr Lloyd and Mr Tabone heard on the two-way radio that there was an emergency at aisle AH and went straight to where the plaintiff was lying beside the forklift, as did Mr Connell and Ms Balewai. When he heard the call for help, Mr Neighbour came directly from the conference room. The ambulance was called. Those present tried to comfort the plaintiff and keep him conscious until the ambulance arrived. Mr Connell tried to calm the plaintiff down and distract him by asking questions about football. Mr Tabone asked the plaintiff to try to keep his eyes open and engaged him with conversation about the Bulldogs football team to divert his attention from the incident.
The ambulance took the plaintiff to Westmead Hospital where he remained from 16 August 2012 until 21 August 2012. He was given morphine and ketamine for the pain. Further findings regarding the plaintiff’s injuries are set out below in the context of the assessment of damages.

Whether the plaintiff activated the hydraulic foot brake

There is an issue about whether the plaintiff applied pressure to the central pedal on the floor of the forklift, thereby activating the hydraulic foot brake. As the plaintiff’s evidence was the only evidence on the topic, it is necessary to examine the versions he gave at various times to determine the question.

The versions given by the plaintiff at the scene of the accident

As soon as Mr Neighbour arrived at the scene, which was shortly after the plaintiff had fallen from the forklift, he heard the plaintiff telling Mr Lloyd:

“The forklift. The forklift. It’s crazy. It went crazy fast and threw me off.”

In an email dated 17 August 2012, Mr Lloyd recorded his recollection as to what the plaintiff said at the time as follows:

“I had asked Toufic to explain what had happened and he said ‘the forklift just took off, I have never seen a high reach go as fast as this one’. I asked him to explain how he fell of the forklift, he replied ‘the forklift sped up and he could not stop, it then felt like the brakes come on throwing him of balance and out of the forklift seat. As he fell the forklift caught his leg pushing him to the floor’. I asked if he remembers anything else, he replied ‘No’.”

Mr Tabone’s recollection was also set out in an email which he sent to Mr Neighbour dated 17 August 2012. Mr Tabone said, of present relevance:

“[The plaintiff] was saying … ‘it took off the fork took off’”.

The version the plaintiff gave at Westmead Hospital on 17 August 2012

On 17 August 2012 at 2.45pm Mr Hix, Mr Neighbour and Ms Balewai visited the plaintiff who was at Westmead Hospital. The plaintiff’s wife was with him at the time. After leaving the hospital, Mr Neighbour prepared the following summary of what the plaintiff had told them in the course of their hour-long visit:

“Notes were prepared post hospital visit by David Neighbour and David Hix.
●   Said hello and normal pleasantries
●   Toufic expressed a wish to talk about incident
●   Toufic was issued a manual pick and was travelling along the front laneway to Isle [scil. aisle] AC to complete the pick. (Travelling empty).
●   Toufic described the forklift un-accountably accelerating to crazy speed he hasn't seen before
●   Toufic applied the brake (this was in question so we re-confirmed this 3 times to be sure). He is adamant he applied the brake himself.
●   There was no mention of a skid (he couldn't recall)
●   The forklift threw me off
●   The forklift ran over my foot
At various points in the conversation Toufic suggested that the trucks were old (Age and maintenance was in question)
He was most anxious that root cause was established so that it didn't happen to anyone else
Toufic was thankful for us coming and appreciated our support and help.”

The version the plaintiff gave in the statutory declaration attached to the Motor Accidents Compensation Act claim form dated 10 October 2012

On 10 October 2012, Mark Nelson, the plaintiff’s solicitor, brought a Motor Accidents Compensation Act claim form to The Hills Private Hospital to be filled out on behalf of the plaintiff. Samara, who was also present, read out to her father the questions on the claim form and carefully recorded his answers. Although some formal details were completed by Mr Nelson, Samara wrote most of the answers, as dictated to her by her father. When the form was completed, the plaintiff declared its contents to be true and correct. Mr Nelson witnessed the plaintiff’s signature, as required for a statutory declaration.
Although the plaintiff intimated in his evidence that he was not in a fit state at that time to give a version of the accident, I am satisfied that neither Samara nor Mr Nelson would have pressed him to fill in the form had they not believed him to be capable of providing the necessary details or sufficiently lucid to express his answers to them. Had either had any concerns about whether the plaintiff was sufficiently alert to make the statutory declaration attached to the claim form, I am satisfied that the process of filling in the form would have been deferred.
Samara took down the plaintiff’s description of the accident and wrote it in the claim form, as follows:

“While doing normal duties at work driving forklift, the fork accelerated out of control by itself more than the standard limit which is walking pace. The forklift surged and jolted to application of breaks [scil. brakes]. The forklift failed to automatically stop despite me being ejected/thrown from the forklift seat. My left lower limb was run over by the forklift.”

The version given by the plaintiff in his evidentiary statement dated 4 October 2017

In his evidentiary statement dated 4 October 2017, the plaintiff said that he had been about to apply his right foot to the brake but that he had come off the forklift before he had in fact applied it.

The plaintiff’s evidence in chief

In his evidence in chief the plaintiff reiterated the version he had given in his statement of 4 October 2017 and said:

“By the time I decided to apply the brake I was close to people. There was a wall, there was two people preparing to cart in. So then with that speed I decided to apply the pedal, because it’s either I hit someone or I hit the wall. So I moved my right foot to apply the brake. The fork engaged the brake by itself. It was braking and it, it, it, and that’s the last thing I remember before remembering the fork.”
[Emphasis added.]

I am satisfied that, after the forklift sped up, the plaintiff applied the brake to slow it down. I do not accept the later versions which are inconsistent with versions which the plaintiff gave much closer to the time of the incident.

Whether the forklift caused a skid mark on the concrete floor

The plaintiff gave evidence that the forklift skidded. He referred to there being a skid mark on the concrete floor near where his forklift stopped. However, the evidence as to the mark is not clear. The presence or materiality of the skid mark was not regarded as particularly germane by the experts, who were unable to replicate it. Accordingly, it is not necessary to address it further. It is the experience of courts that the witnesses who are suffering trauma at the time of the relevant event may have unreliable recollections of peripheral details (such as whistling, burning smell or skidding). I do not regard these matters as otherwise affecting the plaintiff’s credibility.

Alleged admissions made by Nestlé

Samara gave evidence that three employees of Nestlé had told her that the forklift which her father had been driving when the accident had occurred had previously been reported as faulty. The first such statement had been made to her in Accident and Emergency at Westmead Hospital on 16 August 2012, when Ms Balewai told her that the forklift had been reported to be faulty. According to Samara, Ms Balewai told her that at the time of the accident, a man was screaming, “Why is this fork on the floor? I’ve reported it for the same problems multiple times in the preceding months.”
Samara also gave evidence that when she spoke with Mr Neighbour the day after the accident, he could not say what was wrong with the forklift but told her that it was being investigated. He confirmed that the forklift had been reported faulty before the accident.
Samara also gave evidence that when the plaintiff was still at Westmead Hospital, Mr Hix had been present when she and her mother were visiting the plaintiff. She asked Mr Hix whether he had been aware that the forklift was reported faulty shortly before the accident, to which Mr Hix answered, “yes”.
On the assumption (which need not be determined) that Ms Balewai, Mr Neighbour and Mr Hix had authority to make admissions on behalf of Nestlé, these admissions (which are admissible only against Nestlé and not against Linde) do not take the matter any further since they accord with the uncontroverted evidence that forklift 432 had a fault on 10 August 2012, when Mr Connell was driving it, and that the reason for the fault which the plaintiff described could not be determined. Further, Mr Connell’s evidence was that he had said words to the effect of those reported by Ms Balewai although he denied that he had screamed them. Mr Connell’s evidence about the operation of forklift 432 on 10 August 2012 is summarised above.

The cause of the accident

Neither Mr Gorman nor Mr Raad could explain the fault described by the plaintiff. Mr Raad said that he was not aware of any mechanical malfunction, fault or defect which could cause the machine to behave or operate in the manner described by the plaintiff, as under all normal or fault based circumstances the machine will decrease or increase its speed gradually.
Mr Raad said that, had he been told that forklift 432 was going faster than usual, he would have regarded that behaviour as highly unusual. He agreed that if that had been the problem he would not have returned the forklift to service until he had solved the problem.
The cause of the accident is further addressed below when I turn to the evidence of the independent experts.

The investigation of the accident

Action to remove forklift 432 from service

Mr Neighbour removed forklift 432 from service and arranged for it to be isolated by barriers and tagged out of service. It was not used again. Mr Neighbour kept the key in his office. It was parked within sight of his office so that it could not be tampered with.

Appointment of in-house investigators

On 17 August 2012, an incident investigation form was completed by Mr Massoud and Ms Balewai, who were identified on the form as investigators. They included the following description of the accident:

“Toufic was driving south in the main thoroughfare. He was not carrying any stock on his HR [high reach] forklift #432 in from of AH-AI racks. Toufic was ejected from his forklift, landing on concrete floor, with his left foot stuck under the forklift wheel or wedged under the forklift frame. Toufic was screaming for help and Paul Walters attended and moved Toufic’s forklift off his foot.”

Internal analysis of causes, issues and action required

On 20 August 2012, Nestlé staff (Ms Balewai, Mr Lloyd, Mr Connell and Mr Massoud) filled in a pro forma “problem solving worksheet” with respect to the plaintiff’s accident. The specific problem was said to be that an “employee [was] ejected off forklift 432 outside aisle AI-AH in thoroughfare, causing foot to be caught under forklift.” The objective was said to be: “Eliminate all associated risks with forklift crushing injuries.” The relevance of the issue was said to arise “anywhere internally in the warehouse” “when forklift is in motion” and concerned “any lateral motion on the floor” and “all shifts/all operators”.
One of the issues identified was “no restraint” on the forklift. The action required was said to be “obtain quote for seatbelts” on forklifts.
The possible causes in the “product” (the forklift) were listed and included: aged forklift, no lip on forklift seat, condition of tyres, mechanical fault in forklift, no seatbelt, smooth seat surface, forklift brakes lock up, forklift sped up automatically. The possible causes in the “system” included “LOTO [Lock Out Tag Out log book] not closed/completed”, which I take to be a reference to the blank final column following forklift 432’s return to service after it had been repaired by Mr Raad on 13 August 2012. The possible causes in the “process” included the frequency with which the forklifts were serviced and maintained.

The test by Mr Gorman on 28 August 2012

On 28 August 2012, Mr Gorman went to Nestlé’s site to inspect forklift 432 to ascertain whether there was any detectable fault and also to operate the forklift. Mr Gorman used a track area of approximately 50m in length at the warehouse to test the braking and traction of forklift 432 in different situations, including reverse current braking and regenerative braking. The testing took about an hour and was conducted in the presence of Mr Hickey and Adam Fisher, of Linde. The test-driving was repeated to confirm the first results.
After he had finished test-driving forklift 432, Mr Gorman connected a laptop computer, which had been loaded with the Truck Doctor software, to the forklift to ascertain what fault codes had been logged in the past. He listed the fault codes found and confirmed that each fault code logged would have put the forklift either into turtle mode or into shutdown mode. For example, Mr Gorman identified three occasions on which fault code “77” had been logged and explained that this fault code indicates that the output signals from the battery do not correspond with the measured current from the motor, which means that the power is not being delivered to the forklift. This quickly leads to the forklift becoming stationary following slow deceleration. No faults were detected in forklift 432 when Mr Gorman operated it on 28 August 2012.
Mr Gorman’s evidence, in a technical report attached to his witness statement, was:

“The following error codes [which included 71, 77, 87 and 88] indicate a possible fault within the traction control module. If the truck has loss of function because of these then the module should be replaced.”
[Emphasis added.]

Mr Gorman was unable to explain how or why forklift 432 had behaved as the plaintiff had described on 16 August 2012. Nor was he able to explain why what Mr Connell described as having happened on 10 August 2012 had occurred. In his 43 years working with forklifts he had never before seen a forklift come to an abrupt stop and then start again at full speed.

Despite his long working hours, the plaintiff spent about eight hours a week doing things inside the house, principally vacuuming and cleaning the bathrooms. Because of the number of people living in the house he used to do the vacuuming twice a week for a period of 45 minutes to an hour, and clean the toilets (of which there were three in the house) every couple of days for a period of an hour to an hour and a half and the showers every three days. Every 4-6 months, he and his wife would spring clean the house together and wash the windows and the curtains. This would take them about a day. The services provided by the plaintiff were for the benefit of the household as a whole and would not have been required at that level had he lived there by himself, or just with his wife.
The plaintiff was also responsible for outdoor work, such as mowing and gardening. Before the accident, the plaintiff spent about two hours a week working in the garden. As with his indoor tasks, these tasks benefited not only the plaintiff but also the whole family.

The post-accident period

For the two years after the accident, the plaintiff’s wife drove her husband “everywhere”, including to medical appointments. She would spend at least three hours a week driving him around.
About two years after the accident, the plaintiff began to drive again. In early 2018, the plaintiff’s wife’s back became sore. During this period, the plaintiff’s son, Matri, helped his father to wash himself and also helped him to shave once every three days. Matri was sure that his father was capable of shaving himself but said that he had to be encouraged to do so because he was “so withdrawn and disinterested in every aspect of life”. In her mother’s absence, Samara would visit the plaintiff at the family home every morning for up to three hours and would clean the house and take meals to her father. At that time, according to Samara the plaintiff was “devastated emotionally” and “not functioning very well at all”.

The plaintiff’s present capacity to care for himself and perform household duties

The plaintiff is able to make himself a cup of tea and toast for breakfast and sandwiches for lunch. However, he is not comfortable doing basic cooking because he does not want to stand for a prolonged period and subject himself to the risk of falling. He accepted in cross-examination that he could sit on a higher stool and work at the stove or at the kitchen bench.
The plaintiff accepted that he could shave himself and go to the toilet without assistance.
In order to calculate damages for past care, some differentiation needs to be made between the immediate post-discharge period and later periods when the plaintiff had become more accustomed to his prosthesis and to his disabilities generally. The dispute between the parties is as to the level of the plaintiff’s needs. The plaintiff’s family gave evidence as to the care which was provided, the quantum of which was estimated. The defendants relied on the evidence of occupational therapists who opined that the plaintiff’s needs were fewer and that he required less assistance. They applied the principle, which they understood to underpin their training in occupational therapy, that it is preferable to encourage the injured person to become as independent as possible, rather than to enable the injured person to become more dependent than necessary, by providing additional care at a level beyond that which is reasonably necessary.
The expert occupational therapists differ as to the amount of care reasonably required. Ms Arnold and Ms McLaughlin considered that the plaintiff’s family had provided him with care which he could have provided for himself and, accordingly, which he did not reasonably require. They considered that the plaintiff was, or could have been, had he applied himself, independent in self-care within a year of the accident and that the only allowance which needed to be made was to allow an amount for heavy tasks and outside work. By contrast, Ms Dawson considered that the plaintiff needed, and will continue to need, care at a relatively high level (two hours a day).
As to the plaintiff’s future care needs, there is also the question of whether the plaintiff’s wife will continue to provide his care needs or whether this is, having regard to her own health issues, unreasonable and unsustainable. There is also an issue about whether the marriage will endure, having regard to the undoubted stresses and strains placed on it by the accident and its consequences.
In these circumstances, it is not helpful to address the evidence in a precise way since the versions given by the plaintiff and his wife are, understandably slightly different over time. It is also difficult to differentiate between what the plaintiff received by way of care and what he reasonably needed, bearing in mind at all times that he is not to be compensated for care that would have been provided in any event.
In light of these matters, I have made a broad-brush assessment of the plaintiff’s need for care to ensure that he is adequately compensated but not over-compensated. I have used a blended hourly rate for the future to take account of the possibility that the tasks to be performed for him, both inside and outside the house, might at times be done by family members and at other times by paid carers or workers who would, accordingly, need to be paid commercial rates. I have not, in the figures used, differentiated between inside and outside work or descended into the detail of how often a lawn needs to be mown in summer rather than winter. These matters are taken into account in a general way, together with other factors, such as the possibility that the plaintiff will fall and require more care for a defined period before reverting to an optimal level of self-care. My findings as to hours and rates are set out in the table below and reflect the approach which I have described above.
In adopting the process I have set out above, I note that I have been considerably assisted by the detailed calculations performed by the experts and the legal representatives for the parties.

Out of pocket expenses

Past out of pocket expenses

It was common ground that the total past out of pocket expenses were $444,357.61 and that this amount had been paid in full by the workers compensation insurer and would be required to be repaid from the damages awarded to the plaintiff. The plaintiff has not incurred the cost of any out of pocket expenses since the accident.

Future out of pocket expenses

The task of determining the plaintiff’s future out of pocket expenses has been assisted by the joint reports of the experts.

Future medical treatment required

Dr Buckley and Associate Professor Jones agreed that the plaintiff reasonably requires the following:

Six consultations per year with his general practitioner for pain management;

Two consultations per year with a consultant physician in rehabilitation medicine for limb fitting;

Three reviews per year with his prosthetist for prosthetic adjustment; and

Three botulinum toxin injections per year for stump sweating.

With the following exception, the experts agreed that these items comprised the total treatment required. Dr Buckley considered the plaintiff would be likely to require four minor skin grafting procedures and one major skin grafting procedure at some stage in the future. Associate Professor Jones considered this to be unlikely. Associate Professor Jones’s opinion would appear to be based on the finding that the plaintiff had an “excellent stump as of 15/11/2015”. As the experts were not cross-examined and did not give concurrent evidence, it is difficult to determine this dispute. As Dr Buckley is well qualified to express the view, I consider that the plaintiff has established that there is at least some prospect that he will require these treatments. Associate Professor Jones’s view would appear to be based on information which is historical (albeit based on observations made more than three years after the accident) and may not reflect the current position. The cost of the treatments referred to above appears in Dr Buckley’s reports and elsewhere. I propose to quantify damages for these items by awarding a buffer.
They also opined that the plaintiff needed a walking prosthesis similar to his current artificial leg with socket modifications two or three times a year. They recommended that the prosthesis be replaced every three to five years. On this basis, I consider it to be reasonable to allow for replacement every four years.
I note that the plaintiff has been advised that, if he were to have another operation, he may be able to achieve a better fit between the stump and his prosthesis. He does not want to undergo another operation on his leg. It was not suggested that this decision was unreasonable.

Future psychiatric or psychological treatment

The evidence established that the plaintiff continue to see Dr Nguyen, a psychiatrist for treatment for chronic Post Traumatic Stress Disorder and Major Depression. The plaintiff’s claim (as included in the composite table handed up by Mr O’Dowd) was the cost of consulting with his psychologist or psychiatrist at least four times annually for three years and thereafter twice annually. The cost of each consultation is $365, or $1,460.00 per year. The relevant calculation is $28.08 (per week) x 145.6 (5% multiplier for 3 years) = $4,088.45. The cost per year for the years thereafter is $730. The plaintiff calculated his claim as follows: $14.04 (per week) x 809.6 (5% multiplier for the remainder of the plaintiff’s life expectancy) x 0.864 (deferral multiplier) = $9,820.90. The plaintiff claimed $13,909.35, being the sum of $4,088.45 and $9,820.90.
Nestlé accepted that the amount of $13,909.35 was reasonable but submitted that it ought be discounted by 15% for vicissitudes, to result in an award for this head of $11,823.
However, notwithstanding the claim for that amount, the plaintiff submitted (as indicated in its table) that the plaintiff’s present and foreseeable requirements for psychiatric treatment significantly exceeded the claim in terms of frequency and that the workers compensation insurer no longer accepted Dr Nguyen’s recommendations.
This Court is not bound by what the workers compensation insurer has agreed to pay in the past for such treatment. However, the Court ought not award more than a plaintiff’s claim since this would amount to a denial of procedural fairness to the defendants. In these circumstances, I accept the plaintiff’s claim of $13,909.35.

Other future needs

In their joint report, the occupational therapists agreed that it would be reasonable to allow for the plaintiff to be educated to a total of 10 hours on home modifications at the rate of $193.99 (being the rate for the National Disability Insurance Scheme (NDIS)). They agreed that a 2-hour review every 5 years was also reasonable.
It was agreed that the plaintiff takes Lyrica for pain. The frequency of prescriptions is also agreed. The plaintiff claims a cost of $70.55 per prescription, which I am told equates to the amount paid by the workers compensation insurer for each prescription. Mr O’Dowd submitted that Lyrica was available for purchase at Chemist Warehouse for $20 per prescription. Although there was a prospect of agreement, I am yet to be informed of any agreement. In these circumstances, I propose to defer making a finding. The parties can inform me of any agreement when short minutes are prepared to reflect the findings in orders to be made by the Court.

Home modifications

Before the accident the plaintiff shared the main bedroom upstairs with his wife. After his discharge from The Hills Private Hospital, a bed was set up for him in the main lounge room but he was not comfortable there because it was in a public space, so he moved to the garage and slept there instead. He has difficulty navigating the stairs in the house, which also makes it easier to sleep in the garage.
There are two bathrooms upstairs and one toilet downstairs. The plaintiff manages to get up the stairs to have a shower by sitting down and manoeuvring himself on his buttocks on the stairs as he considers this to be safer than trying to navigate the stairs with his prosthesis or crutches. Wearing the prosthesis on stairs makes the plaintiff tired and renders him more susceptible to slipping and falling. The parties agreed that it was reasonable that a downstairs bathroom be installed in the plaintiff’s house so that he would not need to go upstairs for that purpose. The agreed cost of the bathroom is $60,000.

Other claims

The plaintiff has made claims for damages in respect of particular heads which I am not satisfied ought form part of the award. For example, his legal representatives have claimed the cost of gym membership in the absence of evidence that the plaintiff would ever take up such membership. They also claimed the cost of a high-definition silicone prosthesis although the experts did not support such an item. There was a claim for “major stump reconstruction” although the plaintiff’s evidence was that he would not be prepared to have such an operation. To the extent to which a claim which has been made does not appear in the table below, it has been rejected, either because I am not satisfied that it is reasonably necessary or I am not satisfied that the plaintiff would be prepared to undertake the activity, undergo the treatment or use the device.

Summary of figures

It is convenient to express my assessment on damages in a table, which replicates the form of the tables provided by the parties. The figures are calculated on the basis that the plaintiff is 52 years old. He has a remaining life expectancy of 32.33 years and, but for the accident, would have retired at 67 years of age. The 5% multiplier for the plaintiff’s life expectancy is 845 and for his retirement age is 555 (being 15 years). I understand these figures to be common ground.
Where the basis of the award is an agreed figure, this is indicated in the table.

Head of damages and, where applicable, basis of calculation of award

Figure awarded (rounded)

Non-Economic Loss

$400,000

Past Out of Pocket Expenses

1.    Medical expenses and domestic assistance paid for by the workers compensation insurer, EML as at 12 February 2021.

$261,022.78 (agreed)

2.    Aids paid for by the workers compensation insurer, EML as at 12 February 2021.

$174,546.30 (agreed)

3.    Travel expenses paid for by the workers compensation insurer, EML as at 12 February 2021.

$8,603.28 (agreed)

4.   Medicare Notice of Charge dated 21 November 2020 (expires on 21 May 2021)

$185.25 (agreed)

5.    Out of pocket expenses incurred by the plaintiff

Nil

6.    TOTAL PAST OUT OF POCKET EXPENSES:

$444,357.61 (agreed)

Future Out of Pocket Expenses

7.   Plaintiff to attend upon his general practitioner 6 times annually at a cost of $152 per consultation and an annual cost of $912 or $17.54 per week. The amount is calculated as follows: $17.54 (per week for the remainder of the plaintiff's life expectancy) x 845.0 = 14,821.30. This figure is discounted for vicissitudes of 15% which results in a figure of $12,598.

$12,598

8.   Plaintiff to attend upon his treating physician in rehabilitation medicine (limb fitting specialist) twice annually. The initial cost being $500 and subsequent consultations being $300 each. The relevant calculation is $11.54 (per week for the remainder of the plaintiff’s life expectancy) x 845.0 = $9,751.30 + $200 = $9,951.30. The figure after a discount for vicissitudes of 15% is applied is $8,459.

$8,459

9.   Plaintiff to attend upon his psychologist or psychiatrist at least four times annually for three years and thereafter twice annually. The cost of each consultation is $365, which equates to $1,460 per year. The relevant calculation is $28.08 (per week) x 145.6 (5% multiplier for 3 years) = $4,088.45.

   The cost per year for the years thereafter is $730.00. The relevant calculation is $14.04 (per week) x 809.6. (5% multiplier for the remainder of the plaintiff’s life expectancy) x 0.864 (deferral multiplier) = $9,820.90.

   The figure after a discount for vicissitudes of 15% is applied is $11,823.

$11,823

10.    Provision for potential surgery (including plastic surgery, and skin grafts as well as more major surgery) involving plaintiff’s left lower limb.

$25,000 (buffer, vicissitudes already accommodated in lump sum)

11.   Provision for one prosthesis (similar to current leg but with an energy conservative foot) with additional socket replacement requiring replacement every 4 years. The cost of the prosthesis being $24,506.00 and the socket being $12,816.00. The cost per year being $9,330.50. The relevant calculation is $179.43 (per week) x 845.0 = $151,618.35 from which 15% is to be deducted for vicissitudes which results in a figure of $128,876.

$128,876

12.    Provision for an additional waterproof prosthesis with a PTS socket and SACH foot with replacement every 4 years. The cost of the prosthesis being $10,874. The cost per year being $2,718.50. The relevant calculation is $52.28 (per week) x 845.0 = $44,176.60, less 15% discount for vicissitudes, giving a figure of $37,550.

$37,550

13.   Provisions for adjustments, modifications and repairs of the prosthesis as required.

$25,000 (buffer, vicissitudes already accommodated)

14.   Plaintiff to attend upon a prosthetist three times annually. The cost of each consultation being $230, equating to a cost of $690 per year. The relevant calculation is $13.27 (per week) x 845.0 = $11,213, less 15% discount for vicissitudes, giving a figure of $9,531.

$9,531

15.   Physiotherapy for back or other postural issues, if required. Two sessions a year at a cost of $150 per session ($300 per year). The relevant calculation is $5.77 x 845 = $4,875.65 less 15% discount for vicissitudes = $4,144.

$4,144

16.   Plaintiff to purchase a bath swivel seat with replacement every five years. The cost of the item being $445.99, equating to $89.20 per year. The relevant calculation is $1.72 x 845.0 = $1,453.40. Figure is agreed. Figure after application of discount of 15% for vicissitudes is $1,235.

$1,235

17.   Plaintiff to purchase a robotic vacuum with replacement every five years. The cost of the item being $649.00, equating to $129.80 per year. The relevant calculation is $2.50 (per week) x 845.0 = $2,112.50. This figure is agreed. It will be discounted by 15% for vicissitudes, which gives rise to a figure of $1,796

$1,796

18.   One-off cost of 2 grab rails (x 2) for the bathroom. (Underlying cost agreed)

$1,027

19.   Education from occupational therapist for 10 hours in home modifications at cost of $194 per hour.

$1,940

20.   Review (for 2 hours) every 5 years of home modifications by an occupational therapist. The relevant calculation is $1.49 per week x 845.0 = $1,259.05 less 15% for vicissitudes = $1,070.

$1,070

21.   Plaintiff to purchase a leaf blower at a cost of $199.00 to be replaced every 4 years. Agreed capitalised figure of $810 to be discounted by 15% for vicissitudes, which gives rise to a figure of $689.

$689

22.   Cost of Lyrica (medication).

To be agreed or, in the absence of agreement, to be determined

23.   Cost of Duloxetine. Lump sum of $9,060 agreed to be discounted by 15% for vicissitudes.

$7,701

24.   Cost of Endone. Lump sum of $10,232 agreed. When discounted for vicissitudes, the figure is $8698.

$8,697

25.   Plaintiff to purchase Coloxyl (stool softener for constipation) at the cost of $21.43 per prescription, which equates to $257.16 per year. The relevant calculation is $4.94 per week x 845.0 = $4,174.30. This figure (which is agreed) when discounted for vicissitudes, gives rise to a figure of $3,548.

$3,548

26.   Plaintiff to purchase Bactroban (cream for stump sweating) at the cost of $16.55 per prescription, which equates to $198.60 per year. The relevant calculation is $3.82 (per week) x 845.0 = $3,227.90, which, when a 15% discount for vicissitudes is applied, gives rise to a figure of $2,744.

$2,744

27.   Construction of a bathroom and bedroom downstairs with the bathroom being wheelchair accessible, handrails installed in the shower and toilet as well as a handrail to be installed on the existing stairs. Figure of $60,000 is agreed.

$60,000 (agreed)

28.   Plaintiff to receive home-based functional education with equipment prescription and advice on home modifications for 10 hours at the rate of $193.99 per hour. The relevant calculation is $193.99 x 10 hours = $1,939.90.

$1,939.90

29.   A claim is made for the plaintiff to obtain a botulinum toxin injection for stump sweating, three times per year with an estimated cost of $581.11 per injection, or $1,743 per year. The relevant calculation is $33.52 x 845.0 =$28,324.40 less 15% for vicissitudes = $24,076.

$24,076

30.   Plaintiff to purchase motorised transport device as well as to replace the battery and charge the motorised device. Damages are assessed on the basis of a cost of $3,000 every 5 years, being $600 per year, or $11.54 per week. $11.53 x 845= $9,751.30, less 15% vicissitudes = $8,289.

$8,289

31.   TOTAL FUTURE OUT OF POCKET EXPENSES:

To be calculated by the parties by reference to the above figures

Past Economic Loss

32.   Total past economic loss (exclusive of superannuation and Fox v Wood)

To be agreed by parties

33.   Fox v Wood as at 12 February 2021. 30% of $461,872.65 (paid for by the workers compensation insurer, EML).

To be agreed by parties

34.   Loss of past superannuation at the rate of 11.25% of the total claim for past economic loss ($56,730.84).

To be agreed by parties

35.   TOTAL PAST ECONOMIC LOSS

To be calculated by the parties

Future Economic Loss

36.   $1,343.45 net per week x 555.0 (5% multiplier for 15 years) = $745,614.75, less 15% discount for vicissitudes.

$633,773

37.   Loss of future superannuation at the rate of 13.85% (the percentage figure is agreed) of total future economic loss.

$87,778

38.   TOTAL FUTURE ECONOMIC LOSS:

$721,551

Past Gratuitous Assistance

39.   Past domestic assistance provided by the plaintiff’s family for 15 hours per week for the first year after the plaintiff’s discharge from hospital (21 November 2012-21 November 2013). Calculation is 15 x $30 x 52 = $23,400.

$23,400

40.   Past domestic assistance provided by the plaintiff’s family for 7 hours a week from 22 November 2013 to date of judgment at $30 per hour.

To be calculated by reference to date of judgment

41.   TOTAL PAST GRATUITOUS DOMESTIC ASSISTANCE:

To be calculated by the parties

Future Domestic Assistance

42.   Ongoing assistance for 7 hours a week, including personal care, gardening, shopping and home maintenance. Blended rate between gratuitous rate of $30/hour and commercial rate of $50/hour (average $40/hour) = $280 per week x 845 = $236,600, discounted by 15% for vicissitudes = $201,110.

$201,110

43.   TOTAL FUTURE DOMESTIC ASSISTANCE:

$201,110

Total of above figures:

To be calculated by the parties

Costs

I have not heard the parties on costs. Accordingly, I am unaware of any reason why the usual rule that costs follow the event ought not apply in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). For this reason, it is appropriate to reserve costs and to grant liberty to the parties to apply to re-list the matter for argument on costs, if required. Alternatively, the question of costs can be dealt with on the papers.

Orders

For the reasons given above, I make the following orders:

Judgment for the plaintiff against the first defendant.

Judgment for the second defendant on the plaintiff’s claim.

Judgment for the cross-defendant (second defendant) on the cross-claim.

Reserve costs.

Direct the parties to calculate the judgment sum in accordance with the reasons set out above and forward such calculation to my Associate within 7 days.

Grant liberty to apply to restore the matter for further argument on the judgment sum, or the appropriate costs orders.

**********

Decision last updated: 07 April 2021

Medium Neutral Citation:	Metri v Nestlé Australia Ltd [2021] NSWSC 343
Hearing dates:	15-19, 22-24 March 2021
Decision date:	07 April 2021
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Judgment for the plaintiff against the first defendant. (2) Judgment for the second defendant on the plaintiff’s claim. (3) Judgment for the cross-defendant (second defendant) on the cross-claim. (4) Reserve costs. (5) Direct the parties to calculate the judgment sum in accordance with the reasons set out above and forward such calculation to my Associate within 7 days. (6) Grant liberty to apply to restore the matter for further argument on the judgment sum, or the appropriate costs orders.
Catchwords:	NEGLIGENCE — alleged failure to repair forklift when fault identified four days previously — whether fault could be replicated — circumstances in which negligence can be proved although precise mechanism unknown — superior knowledge of employer not passed on to repairer of forklift NEGLIGENCE / TORTS — Defences — Contributory negligence — plaintiff’s conduct in applying brake to forklift reasonable and motivated by concern for other workers in vicinity NEGLIGENCE — Damages — Economic loss — Earning capacity — no residual earning capacity — no viable alternative occupation proposed or available TORTS — General principles — Damages LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant — evaluative judgment requiring legal advice — relationship between ss 50C and 50D of Limitation Act 1969 (NSW) and s 347 of Legal Profession Act 2004 (NSW) — provisions enacted by the same Parliament to be read harmoniously
Legislation Cited:	Civil Liability Act2002 (NSW), ss 3B, 5B, 5C, 5D, 5R Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Legal Profession Act 2004 (NSW), ss 347, 348 Legal Profession Uniform Law Application Act2014 (NSW), Sch 2 cl 4, cl 5 Limitation Act 1969 (NSW), ss 50C, 50D Motor Accidents Compensation Act 1999 (NSW), ss 126, 127, 131, 134, 138, 141B Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 240; [2009] HCA 48 Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45 Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 Australian Woollen Mills Limited v F S Walton and Company Limited (1937) 58 CLR 641; [1937] HCA 51 Baggs v University of Sydney Union [2013] NSWCA 451 Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213; [1966] HCA 3 Chung v Anderson [2004] NSWCA 321 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 Fox v Wood (1981) 148 CLR 439; [1981] HCA 41 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 TNT Australia Pty Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53
Texts Cited:	Australian Standard, AS 2359
Category:	Principal judgment
Parties:	Toufic Metri (Plaintiff) Nestlé Australia Ltd (First Defendant / Cross-claimant) Linde Material Handling Pty Limited (Second Defendant / Cross-defendant)
Representation:	Counsel: M Cranitch SC / T Hickey (Plaintiff) G Parker SC / D O’Dowd (First Defendant / Cross-claimant) M McCulloch SC / T Berberian (Second Defendant / Cross-defendant) Solicitors: Beilby Poulden Costello (Plaintiff) Sparke Helmore Lawyers (First Defendant / Cross-claimant) Moray & Agnew (Second Defendant / Cross-defendant)
File Number(s):	2015/82320

Hazard	Risk	Risk Rating	Controls	Residual Risk
Not using seatbelt whilst operating forklift	Operator may fall out of forklift in the event of an incident/collision. Injury/fatality.	14	Tool box chat reminders to wear seatbelts. Monitor through BBS program. New forklifts 2009/2010 to have preventative seatbelt device in it.	6

Brief Description of Hazard/Risk	Brief Description of Recommended Risk Reduction Measure(s)
…	…
Excessive speed and hard braking also has the potential to result in the operator being thrown forward in the cabin, impacting, for example, the mast or overhead guard. This could result in serious injury. The risk of this incident was assessed to be significant.	To reduce this risk, it is recommended that Linde conduct a site assessment and recommend specific risk reduction measures related to the specific site. This may include speed limiting and operational procedures as well as specific training. This risk reduction measures were considered to reduce the risks to the moderate level and in the ALARP range.
Four of the assessed high risk incidents involved vehicle tip-over resulting in the potential for the operator to fall or jump from the cabin. In this incident there is also a potential for the truck to land on the operator resulting in a fatality. The four incidents identified to result in truck tip-over are: - operating the vehicle at excessive speed, particularly when cornering (this may cause the load to shift and the balance move outside the stability triangle, resulting in potential truck tip over). - overloaded truck or operating with the truck load at height. - operating the forklift close to a dock edge may result in the forklift falling into the dock if the vehicle wheel moves over the dock edge. - driving a forklift across an incline or turning on an incline may result in forklift tip-over.	Procedures and training are critical in managing this risk. Statistically, truck tips and falls away from the operator, this would be included in the training. No seatbelts are fitted to this truck hence the operator can jump from the truck and be impacted. The operator must be trained to stay with the truck and hold on (e.g. MTI low probability). This would maintain the risk within the ALARP range.

Date	Item tagged out	Reason	Informed supervisor Y/N	Lock or Tag	Lock #	Name	Signature	Tag Removed Sign + Date
10/8	432	432 SPEED SENSOR ISSUE	Y	Tag	Jason Connell	[signed]	[blank]

Head of damages and, where applicable, basis of calculation of award	Figure awarded (rounded)
Non-Economic Loss	$400,000
Past Out of Pocket Expenses
1. Medical expenses and domestic assistance paid for by the workers compensation insurer, EML as at 12 February 2021.	$261,022.78 (agreed)
2. Aids paid for by the workers compensation insurer, EML as at 12 February 2021.	$174,546.30 (agreed)
3. Travel expenses paid for by the workers compensation insurer, EML as at 12 February 2021.	$8,603.28 (agreed)
4. Medicare Notice of Charge dated 21 November 2020 (expires on 21 May 2021)	$185.25 (agreed)
5. Out of pocket expenses incurred by the plaintiff	Nil
6. TOTAL PAST OUT OF POCKET EXPENSES:	$444,357.61 (agreed)
Future Out of Pocket Expenses
7. Plaintiff to attend upon his general practitioner 6 times annually at a cost of $152 per consultation and an annual cost of $912 or $17.54 per week. The amount is calculated as follows: $17.54 (per week for the remainder of the plaintiff's life expectancy) x 845.0 = 14,821.30. This figure is discounted for vicissitudes of 15% which results in a figure of $12,598.	$12,598
8. Plaintiff to attend upon his treating physician in rehabilitation medicine (limb fitting specialist) twice annually. The initial cost being $500 and subsequent consultations being $300 each. The relevant calculation is $11.54 (per week for the remainder of the plaintiff’s life expectancy) x 845.0 = $9,751.30 + $200 = $9,951.30. The figure after a discount for vicissitudes of 15% is applied is $8,459.	$8,459
9. Plaintiff to attend upon his psychologist or psychiatrist at least four times annually for three years and thereafter twice annually. The cost of each consultation is $365, which equates to $1,460 per year. The relevant calculation is $28.08 (per week) x 145.6 (5% multiplier for 3 years) = $4,088.45. The cost per year for the years thereafter is $730.00. The relevant calculation is $14.04 (per week) x 809.6. (5% multiplier for the remainder of the plaintiff’s life expectancy) x 0.864 (deferral multiplier) = $9,820.90. The figure after a discount for vicissitudes of 15% is applied is $11,823.	$11,823
10. Provision for potential surgery (including plastic surgery, and skin grafts as well as more major surgery) involving plaintiff’s left lower limb.	$25,000 (buffer, vicissitudes already accommodated in lump sum)
11. Provision for one prosthesis (similar to current leg but with an energy conservative foot) with additional socket replacement requiring replacement every 4 years. The cost of the prosthesis being $24,506.00 and the socket being $12,816.00. The cost per year being $9,330.50. The relevant calculation is $179.43 (per week) x 845.0 = $151,618.35 from which 15% is to be deducted for vicissitudes which results in a figure of $128,876.	$128,876
12. Provision for an additional waterproof prosthesis with a PTS socket and SACH foot with replacement every 4 years. The cost of the prosthesis being $10,874. The cost per year being $2,718.50. The relevant calculation is $52.28 (per week) x 845.0 = $44,176.60, less 15% discount for vicissitudes, giving a figure of $37,550.	$37,550
13. Provisions for adjustments, modifications and repairs of the prosthesis as required.	$25,000 (buffer, vicissitudes already accommodated)
14. Plaintiff to attend upon a prosthetist three times annually. The cost of each consultation being $230, equating to a cost of $690 per year. The relevant calculation is $13.27 (per week) x 845.0 = $11,213, less 15% discount for vicissitudes, giving a figure of $9,531.	$9,531
15. Physiotherapy for back or other postural issues, if required. Two sessions a year at a cost of $150 per session ($300 per year). The relevant calculation is $5.77 x 845 = $4,875.65 less 15% discount for vicissitudes = $4,144.	$4,144
16. Plaintiff to purchase a bath swivel seat with replacement every five years. The cost of the item being $445.99, equating to $89.20 per year. The relevant calculation is $1.72 x 845.0 = $1,453.40. Figure is agreed. Figure after application of discount of 15% for vicissitudes is $1,235.	$1,235
17. Plaintiff to purchase a robotic vacuum with replacement every five years. The cost of the item being $649.00, equating to $129.80 per year. The relevant calculation is $2.50 (per week) x 845.0 = $2,112.50. This figure is agreed. It will be discounted by 15% for vicissitudes, which gives rise to a figure of $1,796	$1,796
18. One-off cost of 2 grab rails (x 2) for the bathroom. (Underlying cost agreed)	$1,027
19. Education from occupational therapist for 10 hours in home modifications at cost of $194 per hour.	$1,940
20. Review (for 2 hours) every 5 years of home modifications by an occupational therapist. The relevant calculation is $1.49 per week x 845.0 = $1,259.05 less 15% for vicissitudes = $1,070.	$1,070
21. Plaintiff to purchase a leaf blower at a cost of $199.00 to be replaced every 4 years. Agreed capitalised figure of $810 to be discounted by 15% for vicissitudes, which gives rise to a figure of $689.	$689
22. Cost of Lyrica (medication).	To be agreed or, in the absence of agreement, to be determined
23. Cost of Duloxetine. Lump sum of $9,060 agreed to be discounted by 15% for vicissitudes.	$7,701
24. Cost of Endone. Lump sum of $10,232 agreed. When discounted for vicissitudes, the figure is $8698.	$8,697
25. Plaintiff to purchase Coloxyl (stool softener for constipation) at the cost of $21.43 per prescription, which equates to $257.16 per year. The relevant calculation is $4.94 per week x 845.0 = $4,174.30. This figure (which is agreed) when discounted for vicissitudes, gives rise to a figure of $3,548.	$3,548
26. Plaintiff to purchase Bactroban (cream for stump sweating) at the cost of $16.55 per prescription, which equates to $198.60 per year. The relevant calculation is $3.82 (per week) x 845.0 = $3,227.90, which, when a 15% discount for vicissitudes is applied, gives rise to a figure of $2,744.	$2,744
27. Construction of a bathroom and bedroom downstairs with the bathroom being wheelchair accessible, handrails installed in the shower and toilet as well as a handrail to be installed on the existing stairs. Figure of $60,000 is agreed.	$60,000 (agreed)
28. Plaintiff to receive home-based functional education with equipment prescription and advice on home modifications for 10 hours at the rate of $193.99 per hour. The relevant calculation is $193.99 x 10 hours = $1,939.90.	$1,939.90
29. A claim is made for the plaintiff to obtain a botulinum toxin injection for stump sweating, three times per year with an estimated cost of $581.11 per injection, or $1,743 per year. The relevant calculation is $33.52 x 845.0 =$28,324.40 less 15% for vicissitudes = $24,076.	$24,076
30. Plaintiff to purchase motorised transport device as well as to replace the battery and charge the motorised device. Damages are assessed on the basis of a cost of $3,000 every 5 years, being $600 per year, or $11.54 per week. $11.53 x 845= $9,751.30, less 15% vicissitudes = $8,289.	$8,289
31. TOTAL FUTURE OUT OF POCKET EXPENSES:	To be calculated by the parties by reference to the above figures
Past Economic Loss
32. Total past economic loss (exclusive of superannuation and Fox v Wood)	To be agreed by parties
33. Fox v Wood as at 12 February 2021. 30% of $461,872.65 (paid for by the workers compensation insurer, EML).	To be agreed by parties
34. Loss of past superannuation at the rate of 11.25% of the total claim for past economic loss ($56,730.84).	To be agreed by parties
35. TOTAL PAST ECONOMIC LOSS	To be calculated by the parties
Future Economic Loss
36. $1,343.45 net per week x 555.0 (5% multiplier for 15 years) = $745,614.75, less 15% discount for vicissitudes.	$633,773
37. Loss of future superannuation at the rate of 13.85% (the percentage figure is agreed) of total future economic loss.	$87,778
38. TOTAL FUTURE ECONOMIC LOSS:	$721,551
Past Gratuitous Assistance
39. Past domestic assistance provided by the plaintiff’s family for 15 hours per week for the first year after the plaintiff’s discharge from hospital (21 November 2012-21 November 2013). Calculation is 15 x $30 x 52 = $23,400.	$23,400
40. Past domestic assistance provided by the plaintiff’s family for 7 hours a week from 22 November 2013 to date of judgment at $30 per hour.	To be calculated by reference to date of judgment
41. TOTAL PAST GRATUITOUS DOMESTIC ASSISTANCE:	To be calculated by the parties
Future Domestic Assistance
42. Ongoing assistance for 7 hours a week, including personal care, gardening, shopping and home maintenance. Blended rate between gratuitous rate of $30/hour and commercial rate of $50/hour (average $40/hour) = $280 per week x 845 = $236,600, discounted by 15% for vicissitudes = $201,110.	$201,110
43. TOTAL FUTURE DOMESTIC ASSISTANCE:	$201,110
Total of above figures:	To be calculated by the parties