Mills v Downer EDI Engineering Projects Pty Ltd
[2011] WADC 82
•31 MAY 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILLS -v- DOWNER EDI ENGINEERING PROJECTS PTY LTD [2011] WADC 82
CORAM: STEVENSON DCJ
HEARD: 13-17 DECEMBER 2010 & 19 JANUARY 2011
DELIVERED : 31 MAY 2011
FILE NO/S: CIV 2164 of 2008
BETWEEN: ROBERT DENIS MILLS
Plaintiff
AND
DOWNER EDI ENGINEERING PROJECTS PTY LTD
LEIGHTON CONTRACTORS PTY LTD
First defendantsGOLDFIELDS CRANE HIRE PTY LTD
Second defendantST IVES GOLD MINING COMPANY PTY LTD
Third defendant
Catchwords:
Negligence - Fall from mobile crane - Plaintiff rendered tetraplegic - Circumstances of fall unknown - Inferences - Whether Jones v Dunkel inference available - No or insufficient evidence - Duty of care - Causation - Material noncompliance with code of conduct for expert witnesses - Employee or independent contractor - No breach of duty of care - Assessment of damages agreed
Legislation:
Civil Liability Act 2002
Motor Vehicle Standards Act 1989 (Cth)
Occupiers Liability Act 1985 (WA)
Workers Compensation and Injury Management Act 1981
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos SC & Mr D M Bruns
First defendants : Mr J Dodd & Mr J R Ludlow
Second defendant : Mr M Zilko SC & Mr M Campbell
Third defendant : Mr J Dodd & Mr J R Ludlow
Solicitors:
Plaintiff: Separovic & Associates
First defendants : Dibbs Barker Gosling
Second defendant : Jarman McKenna
Third defendant : Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084
Earle v Castlemaine District Community Hospital [1974] VR 722
Fabre v Arenales (1992) 27 NSWLR 437
Fitzgerald v Penn (1954) 91 CLR 268
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
March v E & H Stramare Pty Ltd (1991) 171 CLR 506
Payne v Parker [1976] 1 NSWLR 191
Re; Belhaven & Stenton Peerage (1875) 1 App Cas 278
Ronchi v Portland Smelter Services Pty Ltd [2005] VSCA 83
Shepherd v The Queen (1990) 170 CLR 573
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1
Tobiassen v Reilly [2009] WASCA 26
Zuijs v Worth Brothers Pty Ltd (1955) 93 CLR 561
STEVENSON DCJ:
Introduction
At about 8.00 am on 28 July 2004 Mr Mills, a crane operator with 35 years' work experience, was found lying on the ground, next to a truck‑mounted mobile crane he was operating at the St Ives gold mine, Kambalda. He had catastrophic injuries, including an injury to his cervical spine which caused complete tetraplegia below the C3 spinal cord level.
There is no direct evidence from any witness who saw the incident and who might be able to offer an explanation for the cause of the accident. Mr Mills himself does not know what caused him to fall off the crane or the reason why he fell. No other witness, apart from Mr Mills, was called to give evidence about the conditions on site at the relevant time.
Mr Mills has no memory of the events in question at the time of his accident. He has no knowledge of the reason why he fell or how he came to be where he was found. His last memory is of standing on the tray of the mobile crane shortly before the incident. There is no dispute that he fell off the tray of the crane and landed on the ground, a distance of about 1.5 m. It is not known what Mr Mills was doing or attempting to do when he fell. There is no direct evidence of the position his body was found in.
Mr Mills was on his own when the accident happened. Consequently, there is no direct evidence from an eyewitness who saw him fall off the crane. There is no contemporaneous witness testimony which is suggestive of any reason or reasons which might have caused Mr Mills to fall off the crane.
It is not known why Mr Mills fell off the crane. The cause or causes is moot. Did he slip? Did he trip on something? Did he stumble? If so, on what and why? Was he stationary or moving at the time he fell? What was he doing, or attempting to do, immediately before he fell? There is no direct evidence to assist in the resolution of these factual matters.
Precisely where Mr Mills was on the crane and what he was doing at the time of the accident is not known. Was he carrying anything? What was his physical and mental condition immediately before he fell? Did he faint or suffer a dizzy spell that caused him to lose his balance? Did he feel pain or cramp? Did he miss his footing on the side of the crane while moving around on the tray of the crane? Did he take any evasive action after he fell? Was he conscious at the time of impact? Each of these matters, on the available evidence, invites speculation and is fertile ground for conjecture.
The plaintiff's claim
Mr Mills claims his injuries were caused by the negligence of the defendants and, but for that alleged negligence, he would not have been injured. The defendants admit they each owed the plaintiff a duty of care but deny that any alleged breach of their respective duty was causative of the plaintiff's injuries.
At the time of the accident Mr Mills was operating the second defendant's Kato truck‑mounted 50‑tonne crane in the course of construction works being undertaken by the first defendants at the St Ives gold mine for the third defendant. There is no direct testimony in this trial from an eyewitness who saw Mr Mills' accident or who was present on the worksite at the material time.
Mr Mills alleges that, on the basis of the uncontested evidence, it can be inferred he fell off the tray of the crane. About this there can be no doubt. The issue in this trial is whether the cause or a cause of his fall can be inferred from the available evidence, when it is not known precisely where he was or what he was doing at the time. If so, the question then arises as to whether there was a relevant breach of any duty of care owed by a defendant to Mr Mills which was causative of the injuries sustained.
Mr Mills contends that it can be inferred the reason he fell was because he tripped or slipped on loose timbers on the tray of the deck of the crane, and that the hazard caused by the loose timbers was aggravated by vibration to the worksite caused by a compactor working nearby. It is not his case that the timbers themselves were being lifted off the tray or were moving around on the deck of the crane as a result of the vibration, but rather that the whole work site, and therefore the crane, was affected by the vibration. Alternatively, Mr Mills attributes his fall, whatever the precise cause was, to the existence of some vibration emanating from a compactor working on the site. Other pleaded allegations of negligence relied upon by Mr Mills in the pleadings were abandoned at trial and not pursued.
Mr Mills also contends that in any event, it was practicable to install removable handrails or permanent handholds which would have prevented him from falling. The uncertainty of Mr Mills about the cause of his accident is underlined by his pleaded contention, which was abandoned at trial, that he was hit on the head by a tool box lid which, according to him, had a propensity to drop down for no reason.
The court must determine, on the evidence adduced at trial, whether Mr Mills has proved if any of the defendants breached a relevant duty of care owed to him and, if so, whether there was any factual causation as a result of the breach of duty. In this case the issue of causation requires the court to peer into an evidentiary lacuna to determine (if it can) on the balance of probabilities the reason, or a reason, why Mr Mills fell off the tray of the mobile crane. More particularly, the issue is whether Mr Mills has proved on the balance of probabilities that a relevant breach of any one of the defendants' duty of care owed to him was a reason, albeit not necessarily the sole reason, for his accident.
In summary, Mr Mills' claim against the first and third defendants is that a reason why he fell off the crane was because of vibration caused by a compactor. Mr Mills contends that the operation of the compactor should have been programmed or scheduled to prevent any conflict with his operation of the crane. In this regard, it must be understood that Mr Mills was not, on his own evidence, prevented from operating the crane at any relevant time before his accident (including the whole of the day before) by reason of any vibration caused by the compactor.
Mr Mills claims the vibration caused by the compactor was so severe that it must have been apparent its operation in the vicinity of the crane would have created an obvious hazard or risk to the crane operator; not only when conducting a lift, but also while conducting any other activities associated with the operation of the crane, such as walking on the tray of the crane or just being on the crane. There is no evidence, apart from the subjective evidence of Mr Mills, about the magnitude or extent of the vibration caused by the compactor, and this evidence is not concerned with the extent and effect of the vibration at precisely the time he fell (because he has no memory of what caused him to fall or why he fell).
The primary claim of Mr Mills against the second defendant is that it allowed loose packing timbers to be stored on the deck of the crane and/or that it failed to provide collapsible guardrails or adequate handholds around the decking of the crane. Both grounds of negligence are disputed by the second defendant.
Mr Mills also says that the second defendant breached its duty to him because he was permitted to work on the day of his accident without a 'clear' drug test. Mr Mills says 'but for' this, he would not have been working and would not have suffered the accident. In response the second defendant says that the medical evidence proves that the drug benzodiazepine was not in Mr Mills' blood at the time of the accident and therefore it is not relevantly causative of the accident. Mr Mills did not take issue with this evidence and limited this part of his claim to one of causation on the basis that he should not have been permitted to work because a 'clear' drug test had not been obtained, even though he does not contend that the drug for which he tested positive was in fact in any way causative of his accident.
The defendants deny liability and say, if they are liable, then Mr Mills contributed to his accident by reason of his own negligence.
For the reasons which follow I am not persuaded by Mr Mills, on the balance of probabilities, that any relevant breach of a duty of care owed to him by the defendants was causative of the tragic injuries he sustained on 28 July 2004.
The pleadings - general
The amended statement of claim of Mr Mills dated 29 October 2010 alleges that the injuries he suffered on the third defendant's mine site at St Ives gold mine would not have occurred but for the negligence of each defendant. The defendants deny any liability to Mr Mills. They say there was no breach of any relevant duty of care owed by them to Mr Mills and, further, that even if there was, he has not proved any factual causation. The defendants also contend that the accident was caused or contributed to by Mr Mills' own negligence or, alternatively, that it was an accident - that is, that nobody is legally responsible. There is no cross‑claim by the defendants against each other as to liability for the plaintiff's claim.
It is common ground that, at the time of the accident on 28 July 2004, Mr Mills was operating the second defendant's crane. Whether he was doing so as an employee or as a subcontractor is contestable and a live issue between him and the second defendant.
It is common ground that at the relevant time the third defendant had contracted the first defendants to construct a crushing plant, mill, gravity, leaching and gold recovery facility and associated infrastructure adjacent to the third defendant's existing heap leach operation at St Ives, Kambalda.
In the course of undertaking the construction works for the third defendant, the first defendants engaged the second defendant to provide the services of a mobile crane and operator to conduct lifts necessary in the course of the works.
As is often the case, the pleadings did not reflect the true issues between the parties as they emerged in the course of the trial. Mr Mills abandoned at least one of the alleged possible causes of his accident (the tool box lid closing unexpectedly and hitting him on the head). The fact that Mr Mills maintained this plea in his statement of claim in itself suggests that he has no idea what caused his accident, especially as on the evidence it does not appear that the tool box was close to where he was found on the ground. Moreover, his position on the ground when he was found is not precisely known and could not be determined on the evidence adduced at trial.
As a result of the expert evidence adduced on behalf of Mr Mills during the trial, he amended his fourth ground of negligence against the second defendant to include the possibility of the provision of collapsible guardrails and handholds being installed somewhere on the 'upper deck' of the crane, although the location was not specified with any particularity. This was because the expert did not have sufficient knowledge of the crane to be specific or definitive in relation to his contention.
The defendants each admit they owe Mr Mills a relevant duty of care but deny that the duty of care was breached and that, in any event, any alleged breach of duty was not causative of the plaintiff's accident. Critically, the defendants each say that Mr Mills has not discharged the onus of proving, on the balance of probabilities, any sufficient facts to prove that any fault on their part was 'a necessary condition of the occurrence of the harm'. In short, the defendants say, on the available evidence the reason for the accident is not known and, on the basis of the evidence adduced at trial, nobody has been proven to be responsible.
By par 7A of Mr Mills' statement of claim it is pleaded that:
The crane, on the material date:
(a)had loose timbers on the decking;
(b)had no handrails around the edge of the decking;
(c)had no scaffold platform erected around the edge of the decking;
(d)was being vibrated by the operation of a nearby vibrating roller.
On the evidence adduced at trial, I am satisfied that Mr Mills has proved, on the balance of probabilities, the pleaded condition of the crane and circumstances referred to in par 7A of the statement of claim. This is subject to my findings about the nature and extent of the vibration caused by the compactor. The machine was referred to variously during the course of the trial as a 'vibrator', 'roller' and 'compactor'. There was no oral testimony about the size or nature of the machine and its ability to cause vibration on the construction site generally or to the crane in particular (or, indeed, the distance it was away from the crane at any relevant time).
Paragraphs 9 and 10 of the statement of claim plead that, shortly before 8.00 am on 28 July 2004, Mr Mills told Steve Pike (on behalf of the first defendants) that he needed to stop work because of the excessive amount of vibration being caused to the crane by a vibrating roller working in the vicinity. According to Mr Mills, as pleaded in par 10, Mr Pike took no action to stop the vibrator from operating. Mr Mills then pleads that he left the cabin of the crane and moved along the decking towards a tool box on the deck of the crane. It is noteworthy that the witness statement of Mr Mills, which was tendered as his evidence‑in‑chief, did not state any of these things.
Mr Mills also alleged that the tool box had a lid which had a propensity to drop unexpectedly (even in the absence of vibration) and that it did close unexpectedly hitting him on the head. As mentioned, this alleged cause of his accident was abandoned at trial and not pursued.
Paragraph 11(b) of the statement of claim pleads that Mr Mills became 'disoriented owing to the benzodiazepines in his blood'. The evidence is that, at the time of his accident, no relevant benzodiazepine was measured in his blood. This possible explanation for Mr Mills falling from the tray of the crane was not pursued, except for an argument concerning causation - namely that, by reason of a positive result the day before the accident Mr Mills, according to him, should not have been allowed to work until the issue had been resolved. That is, he should not have been allowed on site until a 'clear' result had been obtained from the testing.
The main issue in the trial concerns the allegation by Mr Mills that a cause of his accident was him 'losing his footing as the timbers and the decking vibrated because of the vibrating roller' (par 11(c)).
By par 11A of the statement of claim Mr Mills pleaded:
Prior to the fall mentioned in the preceding paragraph, there was a foreseeable risk of injury in that it was reasonably foreseeable:
(a)that the plaintiff could slip or trip on the uneven decking of the crane and fall;
(b)that risk was increased by the presence of loose timbers on the decking of the crane; and
(c)that risk was further increased as a result of the vibration of the crane caused by the nearby vibrating roller.
Mr Mills' claim at trial was not argued on the basis that the deck of the crane was itself uneven and that, as a result, it was therefore an unsafe working area. No evidence was adduced in this regard. It is likely the ground surface adjacent to the crane would have been more uneven than the deck of the crane. Instead, the claim was concerned with the presence of the packing timbers on the deck and the vibration on the worksite caused by a nearby working compactor. As mentioned, it was not the position of Mr Mills that the timbers themselves were 'jumping around all over the deck'. This is not a case of the timbers 'creating a moving feast of obvious danger on the deck' and, as a result, a hazard for anybody on or in the vicinity of the crane.
The plaintiff's pleaded claim against the first defendants
As against the first defendants (the parties undertaking the construction works on the mine site for the third defendant) Mr Mills alleges they were negligent by:
PARTICULARS OF NEGLIGENCE OF FIRST DEFENDANTS
(a)Failing to stop operation of the vibrating roller once it had become apparent that the vibrations were interfering with the operation of the crane.
(b)Failing to coordinate the operation of the crane and the vibrating roller so as to remove unreasonable risks of injury.
(c)Permitting the plaintiff to be working on the crane whilst a vibrating roller was operating nearby and causing the crane to vibrate.
It follows that Mr Mills' pleaded claim against the first defendants is confined to the issue of the vibration emanating from the compactor. Mr Mills contends that the extent and magnitude of the vibration was such that it was obvious the work should have been programmed at the outset so there was no conflict between the two activities. He also contends that, on the day when the problem allegedly manifested itself, one activity should have been given precedence over the other.
The latter proposition would have much force if Mr Mills had been required by the first defendants to operate the crane at a time when it was dangerous to do so because of the effect of the vibration. However, Mr Mills quite properly accepted that he had ultimate control and final say over whether it was safe to undertake a lift.
Nevertheless, it remains the uncontroverted fact that, at the time of his accident, Mr Mills was not operating the crane for the purpose of conducting a lift, but rather was moving around on the crane or doing something in 'downtime' between lifts. He was obviously engaged in his duties as a crane driver and operator at the relevant time, but the evidence is not clear as to precisely where he was or what he was doing immediately before he fell off the crane.
As to the allegations made against the first defendant there is no evidence that at any relevant time before the accident it was apparent to anyone (including, in my view, Mr Mills) that the vibration was interfering with the safe operation of the crane. It follows there was no factual foundation or basis to assert that the first defendant should have stopped the compactor from working because of its interference to the crane.
Similarly, there was no evidence at trial that it was reasonably foreseeable that the compactor would cause or could cause a relevant impact, let alone safety risk, to the crane operator in the performance of his duties. No expert evidence was adduced about the capacity of the compactor to produce vibration, let alone that in the relevant circumstances it might have done so to a level which could reasonably be regarded as giving rise to a safety risk. It follows that there is no factual foundation for any finding that the first defendant beached any duty to schedule the compactor work at a time that did not overlap with the use of the crane on the site, either in the planning stage or on the day.
The plaintiff's pleaded claim against the third defendant
Mr Mills alleges the third defendant (the mine site owner) was negligent for the following reasons set out in par 14 of his statement of claim:
PARTICULARS OF NEGLIGENCE OF THIRD DEFENDANT
(a)Failing to comply with its requirements under the Mines Safety Act to remove hazards from a mine site.
(b)Failing to have proper procedures for the monitoring and control of workers on the construction site who may have been under the influence of drugs.
(c)Permitting the plaintiff to be working on the crane whilst a vibrating roller was operating nearby and causing the crane to vibrate.
Particular 14(a) was the subject of a request for further and better particulars, whereby the third defendant asked Mr Mills to identify the hazard referred to. The response in answer 4(c) of his further and better particulars dated 21 July 2009 was:
… [T]he interference with safe operation of the crane caused by the vibrating roller, the unpredictability of a worker with benzodiazepines in his blood and the propensity in the tool box lid to drop suddenly without provocation.
It follows the alleged grounds of negligence in pars 14(a) and 14(c) of the statement of claim against the third defendant also relevantly concern the issue of vibration caused by the compactor at the material time. This was canvassed at trial with counsel and there was no demurrer.
Paragraph 14(b) of the alleged negligence of the third defendant concerns the issue surrounding Mr Mills' positive result for benzodiazepines received by the second defendant on 27 July 2004. The contention is that, but for the second defendant's failure to act immediately to prevent Mr Mills from working until the issue had been fully investigated, the accident would not have occurred. This raises an issue of causation because of the non‑contested fact that, at the relevant time, Mr Mills did not have any material benzodiazepine in his blood, which itself was or could have been causative of his accident.
The evidentiary issue in this regard was not pressed by Mr Mills at trial, except for the issue of causation arising out of the fact that he should not have been allowed to work on site at the time of his accident because the second defendant had not received a positive drug clearance. As can be seen this allegation of negligence concerns, in the first instance the omission of the second defendant and any liability of the third defendant is derived from the relationship between the parties, including the first defendants.
At trial a large volume of contract documentation between the parties was 'dumped' on the court. I was referred to it in passing by Mr Dodd, but there was no attempt by counsel for Mr Mills to contend that there was any arguable basis in fact for a finding of negligence against the third defendant on the basis pleaded in par 14(b). The same applies to par 14(a). No obligation in the legislation referred to was identified and relied upon. It is not the task of the court to 'trawl' through voluminous material and legislation to try and find a basis which might assist a party in the proceedings. The trial judge should not do the work of counsel for the parties and must be careful not to enter into the 'arena'. My task is to decide the case on the evidence available to the court: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11.
Likewise I do not understand there to be any proper basis relied upon by Mr Mills for the allegation against the third defendant in par 14(c). The contract documentation to the extent I was taken to it makes it plain that Mr Mills was only on site because of his relationship with the second defendant which was contracted by the first defendants. I am not persuaded there was any relevant deficiency or inadequacy in the contract documentation. Even though the third defendant had duties under relevant legislation as the owner of the mine site, I have not been shown how there has been any breach of a material obligation to Mr Mills.
The issues finally relied upon by Mr Mills, in my view, can only be advanced against the first and second defendants. In this action no relevant duty of care owed to Mr Mills by the third defendant has been identified, and it follows no breach of any such duty has been established by Mr Mills. In view of my factual findings, even if I am wrong about the lack of any identified duty, Mr Mills can not succeed against the third defendant because the breach would be dependant on the vibration issue or the drug issue.
The plaintiff's pleaded claim against the second defendant
As against the second defendant, Mr Mills pleaded the following particulars of negligence (par 13):
PARTICULARS OF NEGLIGENCE OF SECOND DEFENDANT
(a)Not having a representative on the worksite itself, failing to pass on test results to the first or third defendants or others on site, thereby enabling action to be taken to stand the plaintiff down from crane duties.
(b)Failing to correct the propensity in the tool box lid to drop suddenly without provocation.
(c)Failing to have a system in place whereby the loose timbers from the decking were removed while the crane was in operation.
(d)Failing to provide handrails around the decking of the crane.
(e)Failing to erect a scaffold platform around the edge of the decking of the crane.
(f)Permitting the plaintiff to be working on the crane whilst a vibrating roller was operating nearby and causing the crane to vibrate.
As mentioned, on completion of the evidence concerning liability, Mr Mills at trial amended par 13(d) of his particulars of negligence against the second defendant to read:
Failing to provide collapsible guardrails, or adequate handrails and hand holds around the decking of the crane/truck.
Paragraph 13(a) was only pursued on the issue of causation. Mr Mills abandoned the contention that the second defendant ought to have had somebody on site at the relevant time. Mr Mills accepted that he was the person who had ultimate responsibility for the safe operation of the crane on site at all material times.
The amendment to par 13(d) was necessary due to the expert evidence of Mr Mills' witnesses in the course of the trial. In particular Dr Chew gave evidence, as to measures other than a permanent handrail around the decking of the crane to minimise the risk of harm in the event of a person falling off the deck of the crane. The amended plea is not to be taken literally; it followed the evidence of Dr Chew that, somewhere on the upper section, a 'handhold or handholds' could be placed – as opposed to around the perimeter of the decking of the crane in the manner propounded by Mr Generowicz.
At trial Mr Mills abandoned his pleaded case in pars 13(b) and par 13(e) against the second defendant. As to par 13(f), it was not his case at trial that the second defendant had any legal responsibility for the fact that a compactor was working nearby at the material time. On the evidence this was a matter solely in the control and domain of the first defendants. Mr Mills in any event admits he had final and overall responsibility to operate the crane safely in any given circumstances.
As to par 13(c), Mr Mills did not adduce any evidence of any practicable alternative for the storage of the timbers other than on the deck of the crane. The evidence is that this is the place where timbers are stored on all similar sized and type mobile cranes. An alternative is for the crane operator to adopt a work practice of removing or unloading all unused timbers on to the ground at the worksite. There was no evidence that this was the practice of crane operators, and I certainly did not understand Mr Mills to say he had ever adopted this practice or was aware that anybody else had. I find that there is no chance Mr Mills would have adopted such a practice if it had occurred to him that it might remove a safety risk from his workplace. In the end, it is a matter of work practice for the crane operator, in this case Mr Mills, and not the second defendant.
Summary of issues arising out of the pleadings
In summary, the matters concerning the first defendants involve the magnitude of the vibration caused by the compactor and the extent of the impact of the vibration on the activities being undertaken by Mr Mills on the crane at the material time. The issue is whether the vibration was of such a magnitude that the first defendants ought to have stopped or, alternatively, programmed the work of the compactor at a time when nothing was being done on the crane by Mr Mills. There is no expert evidence that this is in fact ever the case in respect of a compactor on a site, such that it is an issue requiring scheduling at the outset.
As against the second defendant, there are three issues:
(1)the causation argument arising out of the fact that Mr Mills was not, to the knowledge of the second defendant, cleared to work by a positive drug clearance;
(2)failing to have a system whereby the packing timbers were stored other than on the deck of the crane when the crane was being operated, and
(3)whether collapsible guardrails or adequate handrails and handholds could have been installed around the decking of the crane (which might therefore have prevented Mr Mills' accident).
The last two matters assume that, if Mr Mills' contentions in this regard are upheld, then it would have had a material effect on whether or not his accident would have occurred or might have occurred, or the risk of it happening being reduced. About this there is considerable doubt and uncertainty.
Quantum
Mr Mills filed a schedule of damages dated 24 November 2010 for the purpose of the trial. At the commencement, and during the course of the trial, I was informed the parties were still negotiating about the various heads of claimed damages. Some evidence was received in the first tranche of evidence in relation to aspects of the damages claim still in dispute at the time of the trial and which the parties thought would assist them to finalise their positions on quantum.
The matter was adjourned part‑heard and further evidence in relation to the disputed issues concerning quantum was heard on 19 January 2011. The parties were encouraged to continue settlement negotiations and a further date set to complete the hearing of any evidence by the defendants on any unresolved aspects of quantum or, alternatively, for the court to receive final submissions on quantum.
On 9 February 2011, the court received a schedule of agreed damages dated 3 February 2011 from the parties' solicitors. The agreed quantum of Mr Mills' claim is $8,464,829.59. The schedule is attached to these reasons for decision with the agreement of the parties.
As a result of the parties' agreement in relation to all aspects of the calculation of Mr Mills' loss and damage, there is no need to deal with the relevant aspects of the evidence of Mrs Lorraine Mills (the plaintiff's wife), Mr John K Ker (Head of Department, Sir George Bedbrook Spinal Unit, Royal Perth Hospital – Shenton Park Campus), Ms Ruth Jodrell (a very experienced occupational therapist) and Ms Astrid Timmers (Director of HomeCare Options, the largest private provider of community services in WA).
I note that Mr Mills requires mechanical ventilation at all times to breath and that, although he his able to speak with some difficulty and discomfort he is, apart from a small amount of head movement, unable to move. His injuries have left him permanently disabled in a way that means he is totally dependant on others for every aspect of his care and life.
On the evidence provided to the court, Mr Mills is receiving the best possible care and his needs are being met by the services and assistance he receives. This has enabled him to live at home in recent years, thanks to the love and support of his wife and family. I also have no doubt that the reason he is the first person in Western Australia to pioneer living at home with the injuries he has is due to his strength of personality and keen sense of humour, both of which were evident when he gave his evidence in court. I understand from the evidence that Mr Mills' care and standard of living as it presently is, will not be diminished as a result of the outcome of his claim in these proceedings.
The plaintiff's evidence
Mr Mills was born on 18 November 1947 and is presently 63 years of age. In 1966, he married his wife Lorraine Anne Gibbs. Mr Mills left school at 15 and began working with cranes when he was 21. He worked as a crane driver for Bell Basic Industries from about 1970 before commencing work as a crane operator for Brambles Manford in 1985. He remained in the employ of this company until 2002. From 2002 to 2004 he worked as a crane operator for a company in Kalgoorlie known as JGB.
In early 2004, Mr Mills started contracting his services as a crane operator to various companies and traded under the name of 'Bob Mills Crane Operator Hire'. Mr Mills did not, in the course of his business, provide the crane or any equipment or tools required for the operation and maintenance of the crane. He contracted his services to the relevant crane company and, in accordance with its directions, attended the worksite of their client. He operated the crane on site when and as required by the client of the party who engaged him. His work hours were set by the crane company and their client. At the time of the accident Mr Mills lived and worked in Kalgoorlie.
One of the companies which contracted Mr Mills' services was the second defendant, trading as 'Goldfields Crane Hire'. This company was owned and operated by Mr Richard Musarra. It hired cranes of all sizes and capacities to various mining companies operating in the Goldfields. Mr Mills undertook work at the request of the second defendant on a regular basis. According to Mr Musarra, when he did so, Mr Mills was covered by the second defendant's workers compensation insurance.
Mr Mills is qualified to operate cranes up to 80 tonnes and holds a current licence issued by the Department of Occupational Health & Safety (licence number WO28173). Mr Mills was required to undertake a site induction programme on each site he worked at.
As a result of the injuries suffered from the accident, Mr Mills is a complete tetraplegic. He has no body movement at all, except for some facial movement and limited head movement, otherwise he is completely paralysed from the base of his neck down. He requires mechanical assistance to breathe and obviously 'round the clock' care.
Mr Mills gave evidence in court orally. His evidence‑in‑chief consisted of the tender of his witness statement dated 7 December 2010.
In his evidence‑in‑chief, Mr Mills said he considered he had experienced very few injuries given the length of time he had worked and given the relatively heavy and dangerous nature of that work. In this regard he said that on 21 December 1999, he incurred a worker's compensation claim arising out of an incident while working at the New Celebration gold mine, Kalgoorlie. His foot slipped on an outrigger step and he fell on to his back because the ground was chalky which made the soles of his work boots slippery. He suffered a bruised coccyx and had about one month off work.
In about July 2003, Mr Mills was diagnosed with Type‑2 diabetes. He controlled his diabetes by taking prescription medication daily and by watching his diet. Mr Mills also took prescription medication to control blood pressure problems and had been taking this medication for some years prior to July 2004.
On 11 July 2004, whilst working at Mount Keith, Mr Mills said he stood up 'suddenly' during a work meeting and 'suddenly felt very dizzy and had to sit down again'. The meeting was described by Mr Mills as 'stressful' because it concerned the possibility of a work strike, which particularly concerned him because at the time he was a union representative. According to Mr Mills, he had forgotten to take his blood pressure tablets that morning. He said nothing further came of this incident. In cross-examination Mr Mills denied he fainted. He said (ts 109):
I did not faint. It was red hot up there and we were having trouble with the – and they come running into the shed where we were having a meeting and I jumped up to keep them quiet and I got a dizzy spell. The manager of Western Mining had a crane driver from (indistinct) – just help me and I got – I sat down on the chair. That's when the nurse came, "put your head in the middle of your legs". I done that and then after that I was – I did not faint.
He denied he presented himself to the nurse on site on 11 July 2004 because he had fainted. However, I note that in his witness statement Mr Mills said 'I was taken by my supervisor to the nursing post' (par 35). This and other matters concerning Mr Mills' evidence leave me with some doubt about the consistency and reliability of some aspects of his evidence. I find, consistent with his statement, that as a result of the dizzy spell he was taken to the nursing post. It may be a matter of semantics as to whether he actually fainted but I find he experienced symptoms of dizziness and was light-headed which caused him to sit down and to receive nursing care. In cross‑examination he agreed he had forgotten to take his blood pressure tablets on that occasion and accepted that, even though he had to take the medication each day, there were occasions when he missed and did not do so.
In cross‑examination Mr Mills said he did not recall being sent to a health educator in relation to managing his diabetes in April 2004. He did not recall complaining to his general practitioner on 28 May 2002 about burning pain in both of his feet while at rest. Mr Mills did not recall being prescribed in September 2001 ear drops but said he had had two perforated ear drums since he was a child. Evidence to substantiate the basis of the questions was not adduced.
During cross‑examination by Mr Zilko SC, Mr Mills said at the time of the 11 July 2004 incident he was 'very stressed' because he was a shop steward and concerned about the work discussions at the time. Mr Mills also said he was upset at the time of his accident because he was stressed by the vibration caused by the compactor and felt that he could not do his job properly. He was concerned about the alleged response of the compactor operator which was reported to him and he got angry as a result (which evidence was not contained in his witness statement). Mr Mills said he was 'very upset'. Mr Mills did not call any witnesses in relation to these alleged conversations or to corroborate the fact that he was 'upset' at the time.
Mr Mills said he stopped taking tablets for high cholesterol (he was not sure when) and could not remember whether he was taking this medication at the time of his accident.
In examination‑in‑chief, Mr Mills said in early July 2004 he was operating a crane for another company known as 'Boom Logistics'. He was working on nightshift for about three weeks and had difficulty sleeping during the day. As a result, he went to the Boulder Medical Centre to see a doctor and was prescribed benzodiazepine on 19 July 2004. He was told to take one tablet each day before attempting to sleep. According to Mr Mills, he was not told at any stage by the doctor that he could not operate any machinery when taking the benzodiazepine.
Accordingly, between 19 and 25 July 2004 (for the avoidance of doubt including 25 July 2004) Mr Mills said he took one tablet each day before attempting to go to sleep at about 8.00 am. Mr Mills finished working for Boom Logistics on 25 July 2004 and commenced working dayshifts for the second defendant at the St Ives gold mine on 27 July 2004. For this purpose, he had a site induction on 26 July 2004 for the work he had agreed to do at the St Ives gold mine. On 26 July 2004, he undertook a urine drug test, alcohol test and a medical examination. According to Mr Mills, he was passed as fit to work on site and commenced work on the crane on the following day, on 27 July 2004.
Mr Mills' evidence was that he was engaged as a crane operator by the second defendant to operate a 50‑tonne capacity Kato hydraulic mobile crane. The work was expected to take about two weeks. He described the crane as having an operator cabin fitted to the back of a flat tray on the back of the truck or prime mover, together with an extendable boom on the back of the truck which was able to be slued for the purpose of carrying out lifts.
Mr Mills said the crane had two outriggers on either side and a smaller one at the front of the driver's cab. Prior to operation, the side outriggers are extended out and the end of each is extended down onto wooden blocks placed on the ground to take the weight of the crane and to keep it level and stable. Mr Mills stressed the importance of the stability of the crane when lifting a heavy load with an extended boom when sluing the load into position. He said the wooden blocks, which he described as 'packing timbers', are carried on the deck of the tray and there are usually spares (as there was on this occasion).
Mr Mills commenced work on site on 27 July 2004 after a pre‑start meeting, followed by an alcohol breath test. He was passed fit to work and accordingly started work on the site that day. When he arrived, the mobile crane was already set up on its outriggers and there were spare packing timbers lying loose on the tray of the truck. Mr Mills said he understood another crane operator had been operating the crane prior to his commencement. He understood that operator also set up the crane in situ with the outriggers in place.
The crane was used to assist with the construction of a processing plant at the mine site and specifically to lift building materials to points where they could be installed as part of the erected works. At all material times on this occasion the mobile crane stayed in one position and the crane would slue its load from A to B. Various chains and shackles were used to secure the load and the operator and riggers, according to Mr Mills, worked together to change the size and type as appropriate. Mr Mills said the chains and shackles were kept in a large metal tool box on the deck, just behind the cab of the truck, which he described as the main tool box. According to him there was a smaller tool box to the side of the truck under the deck.
Mr Mills said he operated the crane during the whole of the day on 27 July 2004 without incident. The evidence is that the compactor was also operating during this day. There is no evidence that it caused any issue for Mr Mills in undertaking his work on 27 July 2004, and I find accordingly.
There is no direct evidence as to who, if anyone was working with Mr Mills on 27 July 2004. It is also not clear from the evidence who was assisting him, if anyone, on the day of his accident.
In his evidence‑in‑chief, Mr Mills said he attended the mine site on Wednesday, 28 July 2004 at 6.00 am. Before commencing work, as he did each day, he underwent an alcohol test. Having passed the test, he attended a tool box meeting which all persons working on the site were expected to attend. Reference was made to the work expected to be done in the course of the day. There is no evidence that Mr Mills (or anybody else) raised any concern about the compactor operating in the vicinity of his crane the day before or about the vibration caused by the compactor as being a matter of concern. I infer from the nature and timing of the meeting that one of the reasons for the meeting is so workers can raise any on site safety issues or concerns.
Mr Mills said he arrived at the crane at about 7.00 am and completed his pre‑start checks which included checking the oil, water, hydraulic levels, gauges and the outriggers on the crane. He did not say that he was motivated by any concern about vibration at this time (maybe because the compactor had not started work).
In his witness statement Mr Mills said he 'performed approximately two lifts before' he exited the crane cab. It was unclear from his oral evidence whether he completed one or two lifts before the accident. I accept that on the day he completed at least one lift before his accident. That lift, or those lifts, were not delayed or stopped by Mr Mills because of any concern about vibration caused by the compactor working nearby.
In his evidence‑in‑chief Mr Mills said that he does not recall how he fell from the crane. He said he did not have a clear recollection of what happened after he had spoken some time earlier to the site manager (Mr Corbett) and the first defendant's safety representative (Mr Pike) which was obviously before he was found on the ground next to the side of the crane.
Mr Mills said he recalled exiting 'the crane cabin due to my concerns about the nearby vibration'. He said the vibration was strong enough to vibrate through the crane and said it was 'very uncomfortable for me on my seat'. Mr Mills' evidence was that he did not put his hard hat on when he left the crane cab because, according to him, it was not his intention to walk around the work site but, rather, 'to have a break and address the issue of the roller compactor'.
Mr Mills said he had some recollection of talking to the site manager (Mr Corbett) and the safety representative (Mr Pike) but he is not specific as to the content or timing of the discussions. There is an element of uncertainty about this in Mr Mills' evidence. The best Mr Mills can do is to say that 'they were just normal greetings but I am certain that I mentioned to someone that vibration was coming through the crane from the operation of the compactor' (par 78). In my view, there is an element of post‑incident reconstruction and bolstering in this aspect of Mr Mills' evidence, and generally as it related to the vibration attributed to the compactor. This is entirely understandable in the circumstances, but I did not find this aspect of Mr Mills' evidence convincing or persuasive. I had the advantage of seeing Mr Mills give his evidence and assessing the evidence in context during the trial.
I make these findings cognisant of what the majority said in Kuhl's case, and as trial judge do not feel the need to inform the plaintiff of my views given his cross‑examination and the circumstances of this particular case. Mr Mills had six years before the trial to make it plain and clear to the defendants what he did and did not remember. In my view his witness statement which was tendered as his evidence‑in‑chief was in material respects general and non-specific. I infer this was a forensic decision made at the time by his legal advisors. As mentioned his oral evidence in cross‑examination went further and raised some new evidence of alleged conversations with third parties, all of which if true, the defendants have not been given the opportunity to investigate or respond to.
According to Mr Mills in his statement he recalled standing on the back deck of the crane near where he had exited the cab and then moving across the front of the operator's cab. He said he had done this on many occasions over the years. Mr Mills said he recalled there was dew on the deck of the truck and on the packing timbers on top of the deck, it 'being the middle of winter and early in the morning'. Corroborating evidence about the climatic conditions on the day was not led, but I accept that there was dew in the early morning.
Mr Mills described how he would normally walk on the tray of the crane 'and whatever was sitting on the deck (including packing timbers) in order to get to the tool box' which he accessed for chains, slings and shackles from time to time. According to him, the lid of the tool box was made of heavy steel. He said the particular tool box lid on the crane would at times 'slam shut as a result of, for example, a gust of wind' and that 'whilst working on this crane the day before, the tool box lid had slammed shut on a number of occasions. When it slammed shut it made a loud bang'. He did not suggest that the reason it had slammed shut on the previous day was because of the vibration.
Mr Mills said that he had worked on this particular crane on previous occasions and had been struck by the tool box lid before, on various occasions in the arm, shoulder and hand. He did not say whether he brought this safety issue to the attention of the second defendant but asserted in his witness statement that a latch could have been attached to the tool box lid so that it could be hooked into position without the risk of it closing.
This aspect of Mr Mills' evidence is mentioned, even though the allegation of negligence on this particular basis is no longer pursued. In my view it indicates that Mr Mills does not know what he was doing immediately before his accident and that he himself (and presumably his legal advisors) considered one possibility was that he was struck by the lid of the toolbox thereby causing him to fall off the crane. It also, in my opinion, contains an element of exaggeration on the part of Mr Mills as to the issue of the lid and the frequency of the alleged problem generally.
In cross‑examination by Mr Dodd (counsel for the first and third defendants) Mr Mills accepted that he was responsible for the safe operation of the crane, including the determination of what chain and shackles would be used – something that was done in discussion with the rigger. He also described how, as part of his pre‑start checks, he would check the outriggers and if necessary drop the crane and reset it again to ensure it was stable. The crane was thereby elevated so that it was only suspended on the outriggers as opposed to its tyres. This process included checking the packing under the outriggers to ensure that the crane had not sunk into the ground. If necessary, the hydraulics were re‑applied to the outriggers so that the whole machine was lifted again and thereby suspended on the outriggers as opposed to the tyres.
Mr Dodd cross-examined Mr Mills in relation to the possible removal of the packing timbers on the tray of the crane. Mr Mills' evidence was that his practice was, and it was normal, to leave them in situ on the tray, accepting of course that they could have been removed and stored on the ground if he had wished to do so. This is something he never did. Mr Mills never contended that there was some where else on the crane that the timbers should have, or could have been stored.
In cross‑examination, Mr Mills said the compactor was operating during the day before the accident and that he felt some vibration in the crane. He did not stop operating the crane on the previous day because of the vibration. Nor did he, at any time on the day of his accident, stop operating the crane because of vibration caused by the compactor. Mr Mills did not give any evidence of any material change in circumstances on the construction site which might have explained any reason for an increase in the magnitude or frequency of the vibration caused by the compactor.
In cross‑examination, Mr Mills said that before the accident when he was in the driver's cab he had a conversation with the leading hand rigger who was standing on the ground adjacent to the crane. The conversation concerned a request for a lift. Mr Mills' evidence was:
And sir, did you start operating the crane - - -? - Yes. The head rigger - I was writing in the log book what I checked. And then the head rigger came over and said, "Bob, I want you - I would like a lift", which I did. And that's when I went out, as I have done, 40 metres. And I went out to where the boys were standing. And it was a long way. And then I heard that vibrator really, really start to vibrate and I said, "No more lifts. Too dangerous". (ts 75 ‑ 76)
Mr Mills confirmed in his evidence that he had already been in the crane cabin as part of his pre‑checks and that he had also started the crane in readiness for the day's work. This was done before he got back into the cabin to carry out the lift or lifts completed before his accident. I note that there is no evidence from Mr Mills in his statement that at any pre-lift point in time he had a concern about vibration from the compactor.
Again it is noteworthy that Mr Mills did not say in his witness statement anything about his thought process at the time or fact that he allegedly became concerned about the vibration because of a change in magnitude while conducting a lift, and that this occurred at the point in time when the load was being lifted at its greatest distance laterally from the lifting point.
Mr Mills' evidence was that 'and then I heard that vibrator really, really start to vibrate and I said, "No more lifts. Too dangerous" '. As I understand Mr Mills' oral evidence he was articulating his thought process while in the operators cab alone and was not speaking to anybody.
There is some ambiguity in this part of Mr Mill's oral evidence because he was immediately asked by Mr Dodd where the 'discussion' with the head rigger was held, and his response was that they were both standing on the ground near the driver's cab. There is a temporal problem with the evidence 'no more lifts, too dangerous' (because of the content) which can only be explained beneficially to Mr Mills on the basis that Mr Mills made a decision at some point that he would not conduct any more lifts due to the vibration. He did not say this in his written evidence‑in‑chief. All he mentioned was 'a concern' about operating the crane. He did not say that he had decided 'no more lifts' and he certainly did not say in his written statement that he had formed this view while making a lift or that he had told the head rigger there would be no more lifts because of the safety risk as a result of the vibration.
It was suggested that the major component of experiencing vibration is usually described subjectively as 'feeling' the vibrations. Mr Mills said he 'heard' the vibrations. Later in his oral evidence he said he 'just heard it and felt it' (ts 87). Again, this evidence was not contained in Mr Mills' witness statement which was his evidence‑in‑chief. No explanation was proffered for the reason why such potentially important evidence was not mentioned. Was Mr Mills merely saying that the compactor at the point in time referred to was just closer than previously or was he saying that the vibration from the compactor was in fact much greater in magnitude? There is no direct evidence from witnesses of the type of compactor machine in question or the extent of the vibration at the material time (or the day before). All that can be said is that it is common ground that a compactor was operating on the other side of a concrete wall some distance away from where the crane was located.
In contrast to his oral evidence on this issue, I have also had regard to what Mr Mills said in his witness statement:
I recall exiting the crane cabin due to my concerns about the nearby vibration. The vibrations were so strong that they were vibrating through the crane. It was very uncomfortable for me on my seat. I was concerned about operating the crane in those conditions. As mentioned earlier, crane stability is an important safety factor.
Shortly after this, Mr Mills said in cross‑examination that he completed only one lift on the morning of his accident. As mentioned, I accept and find that Mr Mills completed at least one and possibly two lifts before he fell off the crane (consistent with his evidence in his witness statement). The element of uncertainty in Mr Mills' evidence in this regard points to the unreliability of his evidence as to what he remembers happening on the morning before his accident and, in particular, his lack of any knowledge of the reason or reasons why he fell off the crane. This may be explained by the nature of his injuries but it does not explain why after six years what he could remember was not recorded in his witness statement which constituted his evidence‑in‑chief. Given the physical condition of Mr Mills, I would have thought there would have been a greater imperative to ensure his complete evidence was recorded, if only as matter of fairness to him.
The witness statement of Mr Mills does not deal with his evidence fully or in detail in relation to some crucial matters. Given his condition one would have expected it to have done so. That was the purpose of adducing his written statement as his evidence‑in‑chief. For example, he said in his statement that he had 'some recollection of talking to the site manger (Mr Corbett) and also to the safety representative (Mr Pike)' and 'they were just normal greetings' (pars 77 and 78). He did not say what he meant by this which detracts from the fullness and frankness of the statement. Relevantly, the best he could do in the six years since the accident was say in his statement that he is 'certain that [he] mentioned to someone that vibration was coming through the crane from the operation of the compactor' (par 78). In his oral evidence in court he added much more detail e.g. he said that either 'the site manager' or 'the safety bloke' asked him why he was out of the crane. According to Mr Mills he blamed the vibration and was '90% sure' who ever he was talking to said 'yes, it was bad' and 'yes, I can feel it'. Importantly, Mr Mills than said 'But apart from that, that's all we said' (ts 88). This evidence is set out more fully below given its potential relevance.
Mr Mills' evidence in his witness statement, which I accept, was that he 'did not have a clear recollection of what happened between speaking to the site manager and then being on the ground next to the side of the truck'. I also accept Mr Mills' evidence that he did not recall how or know why he fell from the crane. The mystery in this regard has not been resolved by the evidence in this case, accepting of course that the court may draw inferences from facts which it finds proved on the balance of probabilities.
The fact that there is no direct eyewitness evidence which explains why Mr Mills fell off the crane does not of course preclude him from succeeding in his claim. He relies upon his own evidence about the extent of the vibration and asks the court to draw an inference from it, and other evidence, about the magnitude of the vibration. As to the circumstances when it is permissible for a court to draw inferences generally: see Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
It is also useful to bear in mind the classic statement in Re; Belhaven & Stenton Peerage (1875) 1 App Cas 278, 279 (Lord Cairns):
… [I]n dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.
In reaching these views I have had regard to the provisions of s 5B of the Civil Liability Act 2002. I am satisfied that there is no proper basis for concluding that the precautions against the risk contended for by Mr Mills (rescheduling and handhold) would have been taken by any other reasonable person in the relevant circumstances. There is no evidence to this effect.
Conclusion
Mr Mills has not proved on the balance of probabilities that the injuries he suffered on 28 July 2004 were caused by a breach of any relevant duty of care owed to him by the defendants.
On the evidence adduced at trial, no fault or legal blameworthiness can be inferred or attributed to the defendants for Mr Mills' accident, and certainly none arising out of a material breach of a duty of care owed to him.
The compactor involved in construction work on site caused some vibration at the relevant time, but it was not of a sufficient magnitude or nature to have been a cause of Mr Mills' accident. The vibration did not create an unacceptable safety risk to Mr Mills (or other workers on site). To suggest it did is an unsubstantiated generalized assertion for which there is no, or insufficient, evidence.
Mr Mills does not know why he fell off the back of the mobile crane, and is unable to say what he was doing at the time. There is no other direct evidence from which it can be inferred what the cause or a cause of the accident was. This is not a case where negligence and the factual questions requiring resolution can be inferred or ascertained from the system of work involved.
Even if it could be inferred that the vibration was a cause of Mr Mills' accident, there was no related breach of a relevant duty of care owed by any of the defendants to Mr Mills. To find otherwise, in my opinion, would require the court, based on the evidence adduced at trial, to engage in a process of speculation and inference which it is not permitted to do.
For the same reasons, I am not in a position to form a view on whether and, if so, to what extent the actions of Mr Mills may have caused or contributed to the accident, except to note that at the time he was not wearing his safety helmet, which may or may not have reduced the risk of injury in the circumstances of his fall.
For these reasons Mr Mills' claim must be dismissed.
Addendum
| Item # | Description | Agreed Amount |
| 1. | Past travelling expenses | $7,500.00 |
| 2. | Statutory allowances paid by workers compensation insurer | $92,377.90 |
| 3 | Past medication expenses | $4,750.00 |
| 4. | Past medical expenses | $1,458,332.62 |
| 5. | Past consumables | $198,355.50 |
| 6. | Past equipment | $60,800.00 |
| 7. | Past miscellaneous expenses | $70,000.00 |
| 8. | Past care services | $2,040,700.00 |
| 9. | Past gratuitous services | $240,000.00 |
| 10. | Past Loss of income 10.1 Workers compensation payments 10.2 – 10.5 Past loss of income | $266,122.50 $175,000.00 |
| 11. | Past loss of superannuation | Nil |
| 12. | Future travel | $10,000.00 |
| 13. | Future medication costs | $11,408.65 |
| 14. | Future medical attendances | $130,000.00 |
| 15. | Future paid personal care and assistance | $2,775,000.00 |
| 16. | Future loss of income/earning capacity | $177,482.42 |
| 17. | Future loss of superannuation benefits | Nil |
| 18. | Future equipment and other miscellaneous costs 18.1, 18.2, 18.3 18.4 Incident costs 18.5 Holiday expenses 18.6 Home renovations | $270,000.00 $25,000.00 $20,000.00 $95,000.00 |
| General damages | $337,000.00 | |
| TOTAL | $8,464,829.59 |
3
4