Moffett v Robin

[2021] NSWDC 211

District Court

New South Wales

Medium Neutral Citation:

Moffett v Robin [2021] NSWDC 211

Hearing dates:

3-4 June 2020 (Newcastle); 10-11 June 2020 (Newcastle); 13-16 October 2020 (Sydney);
2-4 November 2020 (Sydney); 8-10 December 2020 (Sydney); 22 February 2021 (Sydney); 13 April 2021 (Sydney – oral submissions)

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

See paragraph 634

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW) claim – work accident – whether the plaintiff’s claim was properly a claim brought under the Civil Liability Act 2002 (NSW) or the Workers Compensation Act 1987 (NSW) – whether the plaintiff had a contract of service or a contract for services – whether the plaintiff was a “worker” or “deemed worker” - whether tree felling and pruning company was vicariously liable for person working with the plaintiff on the day of the accident or such person was the company’s agent – whether breach by company of duty of care

EMPLOYMENT LAW – whether the plaintiff had a contract of service or a contract for services – whether plaintiff was an employee of the second defendant – indicia of employment – control – uniforms – supply of equipment – concentration of work for one entity

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Liability (Non-Economic Loss) Amendment Order 2020 (NSW)

Employees Liability Act 1991 (NSW).

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

AMP Society v Chaplin (1978) 18 ALR 385 (Privy Council)

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Bradburn v Great Western Railway Co (1874) LR 10 Ex 1

Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213

Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17

Burton v Babb [2020] NSWCA 331

Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Insurance Co of Australia Limited [1931] HCA 53; (1931) 46 CLR 41

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181

Dal v Chol [2018] NSWCA 219

Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562

Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118

Downes v Amaca Pty Ltd [2010] NSWCA 76

Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236

Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588; [1965] HCA 26

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63

Hallmark Construction Pty Ltd v Brett Harford [2020] NSWCA 41

Higgins v Jackson [1976] 135 CLR 174

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

Humberstone v Northern Timber Mills (1949) 79 CLR 389

Jackson v McDonald's Australia Ltd [2014] NSWCA 162

James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119

Jurox Pty Ltd v Fullick [2016] NSWCA 180

Kondis v State Transport Authority (1984) 154 CLR 672

Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555

Livingstone v Rawyards Coal Co (1880) 5 App CAS 25

Lloyd v Thornbury [2019] NSWCA 154

Mason v Demasi [2009] NSWCA 227

Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96

National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253

Penrith City Council v Parks [2004] NSWCA 201

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529

Police Service of New South Wales v Honeysett [2001] NSWCA 452

RTA v Dederer (2007) 234 CLR 330

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182

Sydney Water Corporation v Abramovic [2007] NSWCA 248

Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Watson v Foxman (1995) 49 NSWLR 315

WB Jones Staircase & Handrail Pty Ltd v Richardson [2014] NSWCA 127

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

Category:

Principal judgment

Parties:

John Moffett (Plaintiff)
Apihana Robin (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim)
Active Tree Services Pty Ltd (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim)
WFI Insurance Limited t/as Lumley Insurance (Cross-Defendant to Second Cross-Claim)

Representation:

Counsel:
C Hart (Plaintiff)
A Combe – via AVL and later in person (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim)
S McMahon (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim)
M Hamdan – via AVL and later in person (Cross-Defendant to Second Cross-Claim)

Solicitors:
Michael Evers & Co (Plaintiff)
William Roberts Lawyers (First Defendant; Cross-Claimant to First Cross-Claim; Cross-Defendant to Fourth Cross-Claim)
Hicksons (Second Defendant; Cross-Defendant to First Cross-Claim; Cross-Claimant to Second Cross-Claim; Cross-Claimant to Fourth Cross-Claim)
Holman Webb (Cross-Defendant to Second Cross-Claim)

File Number(s):

2016/00352340

Publication restriction:

Nil

TABLE OF CONTENTS

Paragraph
The pleadings	[9]
The issues for determination	[18]
The Plaintiff’s Evidence
The plaintiff’s oral evidence	[19]
Oral evidence of Mr Jason Wellings	[159]
Oral evidence of Mr Glen Wells	[183]
The plaintiff’s medical evidence	[207]
Professor Ghabrial’s oral evidence	[217]
Medical records	[234]
Liability report	[240]
Documentary records	[244]
Mr Robin’s evidence
Mr Robin’s oral evidence	[252]
Mr Robin’s documentary evidence	[305]
Active’s evidence
Oral evidence for Active
Oral Evidence of Mr Alan Brady	[307]
Oral evidence of Mr Anthony Lucas (Luke) Hobbs	[370]
Medical records	[408]
Medical reports	[415]
Oral evidence of Dr Maxwell	[425]
Invoices of the first defendant	[440]
Evidence on behalf of WFI Insurance Limited trading as Lumley Insurance	[442]
Certificates of Fitness	[447]
Submissions of the parties
The Plaintiff	[448]
Mr Robin	[450]
Active	[452]
WPI	[454]
Credit and reliability of the witnesses	[455]
Factual findings	[462]
Medical findings	[463]
Consideration	[464]
Was the plaintiff a “worker” or a “deemed worker” within the WCA and the WIM? – the statutory background	[465]
Whether the plaintiff and Mr Robin had contracts of service or were independent contractors with contracts for services with Active for personal injury purposes. Whether Active was otherwise vicariously liable for the acts of Mr Robin	[478]
“Deemed worker” – principles and application to the facts	[508]
The Employees Liability Act 1991 (NSW)	[521]
Principles relating to potential liability of Active for acts of Mr Robin as the agent of Active	[535]
Duty of care and breach of duty of care
Mr Robin	[540]
What was the duty owed by Mr Robin to Mr Moffett as a contractor engaged by Active to provide tree cutting and pruning services where Mr Moffett was another contractor as part of the ground crew?	[545]
Was there a breach of the duty of care owed by Mr Robin to Mr Moffett?	[546]
Active	[554]
Obvious or inherent risk – ss 5F, 5G, 5H and 5I of the CLA	[570]
Causation	[580]
Mr Robin	[582]
Active	[583]
Contributory negligence	[584]
Damages
Introduction	[595]
Non-economic loss	[598]
Past out of pocket expenses	[606]
Future out of pocket expenses	[607]
Attendant care services claim/commercial services claim	[613]
Past Economic loss	[616]
Future economic loss	[626]
Summary of damages	[632]
Cross-claim of Active against WFI Insurance Ltd	[633]
Determination	[634]

Judgment

1. In these proceedings, the plaintiff, Mr John Moffett, brings a claim for damages against the defendants, Mr Apihana Robin and Active Tree Services Pty Ltd (“Active”), in relation to personal injuries suffered by the plaintiff on 25 November 2013 when he was struck by a sawn part of a tree branch which fell from some height onto the plaintiff during tree felling and pruning operations conducted at Raymond Terrace in New South Wales.

2. There were four natural persons involved in the operations at the time of the accident.

3. The first defendant, Mr Robin, was operating an hydraulic saw from an elevating work platform (“EWP”) about 10 metres above where the plaintiff was struck.

4. Mr Glen Wells and Mr Jason Wellings were also present. Mr Wellings was operating a truck and a motorised wood “chipper”. Mr Wells and Mr Wellings were assisting in placing sawn branches of trees into the chipper such that the branches were turned into wood chips. The second defendant, Active, had work arrangements in place with the plaintiff and Mr Robin which are the subject of dispute in the proceedings. Active was also the owner of the truck, the chipper and the EWP. The proceedings are brought by the plaintiff against the two defendants under the Civil Liability Act 2002 (NSW) (“CLA”).

5. What would otherwise be a not unusual work accident has been complicated by legal issues relating to whether Active was the employer or otherwise is vicariously liable or liable as principal for the actions of Mr Robin and whether the plaintiff had a contract of service or a contract for services with Active. A related issue is whether the plaintiff is a “worker” or “deemed worker” for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) such that the procedural requirements of the WIM Act must be complied with before the plaintiff could bring an action for damages under the Workers Compensation Act 1987 (NSW) (“WCA”) in a court against Active.

6. The plaintiff’s case is that the events relating to the accident fall within the CLA and not the WCA or the WIM Act. Mr Robin’s case is that he is not negligent but, if he was, Active is liable for any of his alleged negligent actions either under the principles of vicarious liability as he is a “worker” or a “deemed worker” under the WIM Act or on the basis that Mr Robin was Active’s agent. Active says that Mr Moffett is a “worker” or a “deemed worker” under the WIM Act and may not bring a claim against it under the CLA. It also says it has not been negligent if the CLA applies. A further party to the proceedings is WFI Insurance Limited trading as Lumley Insurance (“WFI”) which had a public liability insurance policy with Active at the relevant time. The proceedings accordingly raise difficult legal issues for determination by the court.

7. There is also a dispute between the plaintiff and the other parties including Active in relation to the extent of the plaintiff’s injuries. The plaintiff submits that he has suffered serious injuries arising from the accident including a fracture at the T1 level of his thoracic spine which have left him with painful restrictions and limitations and entitle him to substantial damages. Active, Mr Robin and WFI submit that the plaintiff only suffered soft tissue injuries in the accident from which he has long since recovered.

8. The proceedings were listed for hearing for four days in the sittings in Newcastle. This was a gross underestimate. At the end of four days, cross-examination of the plaintiff had not been completed by counsel for the first defendant. The matter should have been given an estimate of ten days plus by the parties and a special fixture sought. Later estimates of further time needed also proved to be inaccurate.

The pleadings

9. The plaintiff commenced the proceedings only against Mr Robin by a Statement of Claim filed on 24 November 2016. The claim was made under the CLA. An Amended Statement of Claim was filed on 28 June 2017 which joined Active. Active was also sued under the CLA. It was pleaded by the plaintiff that the first defendant, Mr Robin, was a servant and/or agent of Active. Particulars of negligence are set out in the amended pleading relating to Mr Robin and Active as well as references to the plaintiff’s injuries and disabilities and loss.

10. Mr Robin in a Third Further Amended Defence filed on 12 June 2020 denies liability (including under the CLA) but states that he was acting as the servant and/or agent of Active on the day of the accident. He also pleads contributory negligence and that the case falls under the WCA. Active in an Amended Defence filed 1 August 2019 also denies liability but pleads that the plaintiff was a “worker” within s 4 of the WIM Act or a “deemed worker” within the meaning of s 5 and Schedule 1 of the WIM Act and that the claim did not fall under the CLA.

11. Contributory negligence was also pleaded against the plaintiff by Mr Robin and Active. Mr Robin particularised that he gave a hand signal to Mr Moffett and Mr Wells not to enter the area beneath the EWP just before the accident which the plaintiff did not comply with. It was also pleaded that the plaintiff was not entitled to recover damages as he had failed to establish that he satisfied the threshold required under s 151H of the WCA. Alternate defences under the CLA were in addition pleaded.

12. An Amended First Cross-Claim was filed by Mr Robin against Active seeking contribution in the amount of a complete indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and also an indemnity under s 3(1)(b) of the Employees Liability Act 1991 (NSW) for any damages ordered to be paid by Mr Robin to the plaintiff. It was also pleaded that Mr Robin was an employee of Active.

13. In a Defence filed 1 February 2019, Active denies that Mr Robin was a servant or agent of Active, denies that Active is vicariously liable for the acts or omissions of Mr Robin and denies that he has any entitlement to an indemnity or to contribution.

14. A Second Cross-Claim filed 29 November 2018 was filed by Active against its public liability insurer WFI Insurance Limited trading as Lumley Insurance in relation to a denial of indemnity by Lumley under an insurance policy said to be held by Active. In a Defence filed 6 February 2019 WFI pleads that it insured Active pursuant to the terms of a policy but states that it declined to grant indemnity to Active for the claim and denies liability.

15. A Third Cross-Claim was filed on 29 October 2018 by Active against Employers Mutual Limited, its workers compensation insurer. This cross-claim has been discontinued.

16. A Fourth Cross-Claim was filed by Active against Mr Robin on 21 November 2018 seeking contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) . In an Amended Defence filed on 29 November 2019 Mr Robin denies any liability to Active and further pleads that Active is not entitled to the relief claimed against him because of s 3(1)(a) of the Employees Liability Act 1991.

17. It may thus be seen that the pleadings raise difficult factual and legal issues in relation to the status of the plaintiff, Mr Robin, and Active as at the day of the accident.

The issues for determination

18. The issues for determination appear to be as follows:

1. Were the plaintiff and Mr Robin independent contractors or employees of Active;

2. Was Active vicariously liable for any negligent acts of Mr Robin including as principal;

3. Was the plaintiff a “worker” or “deemed worker” under the WIM Act;

4. Was Mr Robin a “worker” or “deemed worker” under the WIM Act;

5. What duty of care, if any, was owed by Active and Mr Robin to the plaintiff if the CLA applied;

6. Did Active or Mr Robin breach any duty of care owed;

7. Did any breach cause Mr Moffett’s injuries and claimed loss;

8. What injuries did Mr Moffett suffer in the accident;

9. What damages is Mr Moffett entitled to, if any;

10. Is Mr Moffett liable for contributory negligence;

11. Is Active liable to indemnify Mr Robin under the Employees Liability Act 1991 (NSW) on the basis that Mr Robin was an employee of Active at the relevant time;

12. Is WFI liable to indemnify Active under the relevant insurance policy with Active?

The Plaintiff’s Evidence

The plaintiff’s oral evidence

19. The plaintiff, Mr Moffett, gave oral evidence over several days and was cross-examined extensively by counsel for the other parties.

20. Mr Moffett gave evidence that he was born in November 1971 which made him 42 years of age on the day of the accident and 49 years of age at the time of the final hearing.

21. Mr Moffett stated that he was educated in Sydney and completed high school to the School Certificate level. He said that he worked at a nursery in the 1990s.

22. Mr Moffett stated that he had a friend working for Active and was informed that there may be an opportunity for him at the company. He stated that he had a conversation with a Mr Peter Duvier from Active in about 1998 who said that if he wanted to work for Active he had to become a contractor for it. Mr Duvier said the conditions of working for Active were that Mr Moffett had to establish his own business name, obtain public liability insurance in the sum of at least $10 million, obtain personal injury insurance, purchase his own chainsaw and blower and purchase his own utility vehicle. The plaintiff said that he completed these conditions, including registering his own business name, “The Quality Gardenmaster”.

23. Thereafter, the plaintiff stated that he did tree felling, tree pruning and other tree related tasks for Active in his business as directed by Mr Duvier. Initially, the plaintiff said that he was telephoned by Mr Duvier and told where the work was to be completed the next day. The plaintiff stated that he “occasionally” also did other tree related work for other persons.

24. The plaintiff said that he completed a number of certificates over the years and was told which certificates had to be completed by Mr Duvier. The courses undertaken by the plaintiff included power lines awareness courses, climber rescue courses, first aid courses, height safety courses, traffic control courses, chemical/poison courses, an arborist certificate and a dogman certificate. These were usually completed with other workers. The arrangement, according to the plaintiff, was that he paid for the majority of them and that Active did not pay him for the time spent to attend the courses.

25. The plaintiff said that at the time, he was primarily working in the Western Suburbs of Sydney and the Blue Mountains area for Active, but also undertook other work in those areas for other people. He said that earlier on, he advertised in the Blue Mountains Gazette and completed tree related work for people and other companies. He stated that he later advertised in Port Stephens. The arrangement there was similar to the arrangement with Active in the sense that the plaintiff invoiced at a daily rate. At all relevant times, the plaintiff confirmed that he maintained both public liability insurance and income protection insurance in relation to personal injuries.

26. The plaintiff gave evidence that at some stage he was offered more work closer to home and began working for a Mr Matthew Ellis at Superior Trees which was located in the Blue Mountains. He said that for a number of years he received no work from Active. At the time, he was living at Lawson in the Blue Mountains. He also undertook contract work in various other areas in New South Wales.

27. The plaintiff gave evidence that in 2012 his work circumstances changed. He said he was contacted by Mr Alan Brady from Active who was the supervisor for Active in the Central Coast/Hunter area. At that time, the plaintiff said that he understood from Mr Brady that Active had a lot of work. He said he was initially offered a few jobs by Active which ultimately extended to extensive work. For these purposes, the plaintiff said that he travelled extensively in the Central Coast and Hunter area. He either stayed with his parents at Lake Macquarie or stayed in caravan parks whilst undertaking the work. The plaintiff stayed in caravan parks where the work undertaken for Active was further away, such as in the outer Hunter area or at Port Stephens. Mr Moffett said that he paid for expenses when he had to stay at caravan parks and invoiced Active for the expenses involved at the end of the month. He stated that he billed Active for work performed on a daily rate of $300 plus GST. He said that in the course of his work he had to pay for insurance costs, courses undertaken, the purchase of tools, the purchase of petrol, repairs to his utility, business expenses and his own tax.

19. As mobile phones became common, the plaintiff said he was normally contacted by Mr Brady by text message the day prior to work to be undertaken or on a Friday afternoon in relation to Monday work. He said there were usually four members of a crew for work and the same text was sent by Mr Brady to each member.

20. The plaintiff then gave evidence in relation to the circumstances concerning the accident on 25 November 2013. The plaintiff did not recall what information he was sent by Mr Brady prior to the accident but believed it must have been on a Friday as the accident occurred on a Monday. He recalled that he had also performed work on the weekend prior to the accident for the Sydney office of Active.

21. The plaintiff recalled that he attended the area for work to be performed in Adelaide Street at Raymond Terrace at about 7:30am to 7:45am on the day of the accident, 25 November 2013. Mr Robin, Mr Wells and Mr Wellings also attended. Mr Robin was “the climber” who operated the EWP to use a saw to cut down or prune branches of trees. Mr Moffett understood the EWP was owned by Active. Mr Wellings drove a truck and the chipper which Mr Moffett understood were owned by Active. Mr Wells was assisting the plaintiff in placing pruned branches and tree parts into the chipper. The plaintiff gave evidence that he was not driving or operating any equipment on the day of the accident but was using his own equipment. His role on the day was to feed cut branches into the chipper. He confirmed that he did not operate the EWP. The plaintiff stated that the crew met with Mr Brady from Active on the morning of the accident. This was later disputed by Mr Brady who said that he met with the plaintiff alone to describe the work to be performed on the Friday prior to the accident. The plaintiff said that Mr Brady spoke to the crew for about half an hour and described the work which had to be undertaken which included removing some trees, clearing other vegetation and pruning trees. Mr Moffett could not recall the circumstances of what Mr Brady specifically directed and could not recall where Mr Brady went after he gave directions to the crew.

22. Mr Moffett gave evidence that he filled out “paperwork” which included a hazard assessment report (known as a HAC report): T38.39. He then said that the crew set out signs, barricaded the area and placed witches’ hats to make the site safe while work was undertaken. This safety equipment came from the truck or the EWP and was, as far as Mr Moffett was aware, owned by Active.

23. The work then commenced with Mr Robin operating the EWP and using a hydraulic pole saw which was like a chainsaw and which ran off the EWP to cut and prune branches: T40.6. Whilst this was occurring the chipper was also operating nearby which was very noisy: T40.41. As Mr Robin cut branches he stopped on occasions and the remaining members of the crew removed the trees or branches and fed them into the chipper. Mr Moffett stated that Mr Brady did not create any system or plan to be used by the crew “of how this worked”: T42.14.

24. Mr Moffett gave evidence that the crew communicated with Mr Robin by hand signals, head signals and eye signals/contact: T41.46. At the time of the accident, Mr Moffett stated that the EWP with Mr Robin in it was about 10 metres in the air: T41.37. Mr Robin was cutting a she oak or casuarina at the time of the accident.

25. The plaintiff said that Mr Robin stopped cutting, achieved eye contact with him and nodded his head towards the crew and placed his pole saw “against the [EWP] bucket” assembly”: T41.45; T43.27. He said that Mr Wells and he then attended to removing branches underneath and close to the EWP to feed them into the chipper. He stated that he and Mr Wells both approached the branches and Mr Wells withdrew first. Mr Moffett said that he then approached the branches and was rising up from the ground having grabbed branches virtually immediately underneath the bucket of the EWP when he was struck heavily: T42.2-T43.

26. Mr Moffett said he initially thought he may have been hit by a car but soon found out that he had actually been struck at the back of the head, and on the neck and shoulder by a log which had fallen from above. He said he was stunned and dazed initially and thought he fell to the ground. He said he felt a lot of pain and a burning sensation in the neck area and the right shoulder next to the spine with some pain on the right side of the head: T48-49. Mr Moffett said he went over and sat against the wheels of the EWP: T43.50. He gave evidence that Mr Wellings approached him and said words to the effect, “This is what hit you” and showed him a cylindrical log about two and a half feet long and about 25cm in diameter with a saw cut mark at either end: T44.5-T46.5. Mr Moffett stated that he did not observe the log falling and hitting him. He said he observed Mr Wellings picking up the log which was right next to the EWP: T47.13. The plaintiff stated that when the accident occurred, all the crew members stopped work and Mr Robin came down. At the time of the accident, Mr Moffett stated that he was wearing a hard hat and earmuffs and the side of the hard hat was cracked by the log. He did not recall whether his hat fell off his head in the course of the accident: T47.32.

27. The plaintiff said that he tried to shrug off the injury and put one branch into the chipper but found that he was in too much pain and informed the crew that he was going to hospital: T49.32. The plaintiff said that he then attended John Hunter Hospital.

28. Emergency Department triage notes in evidence (Exhibit H at page 28) indicate that the plaintiff arrived at the Emergency Department at John Hunter Hospital at 2:28pm. The plaintiff said that he was not feeling well at the time and was placed straight into a bed. The notes recorded are generally consistent with the plaintiff’s oral evidence of what occurred in the accident and include the following (Exhibit H page 29):

“50kg log landed on head from above – 8-10m height

Pt was wearing helmet which split

Pt fell to ground but no LOC, vomiting or amnesia

Pt was ambulating after fall + drove himself here. Denies paraesthesia/numbness/[unclear]

C/o neck pain

…

Central, burning [?] tenderness in c spine down to T3/4

No focal neurology

Refusing analgesic”.

38. The plaintiff said that he informed the doctors what had happened to him and the pain he was in and he spent a “couple of days” in hospital. During that time, he said he had pain in the neck region and between the shoulder blades: T51.9. The plaintiff said that he was advised by medical practitioners at the hospital that he was not fit for work. He said he was off work for about two months and during this time lived off savings and a claim on his own accident insurance policy. He said that the insurance company also paid for his lost time: T51.40-T52.10. The plaintiff said that he was reviewed by a specialist during his period off work.

39. The plaintiff stated that he returned to work for Active in the middle of January 2014. He gave evidence that he was contacted by Mr Luke Hobbs or Mr Brady. He was told that Active would put him on light duties on a subcontract basis and he then undertook duties as an observer during tree work on the railway line in the North Shore of Sydney. The plaintiff said that he was told by Active that he would be put in a less hands on role either as an observer or a supervisor of crews. He said that he was “hardly ever on the tools” after this time and often had a role as a supervisor overseeing work and co-ordinating crews and jobs: T52.42; T54-T55. On the day of the accident, the plaintiff said there was no supervisor or observer from Active present at the work site: T56.20-.25. The plaintiff stated that while he was working as an observer or supervisor for Active from January 2014, he was still paid a daily rate to which GST was added and accommodation expenses where these were incurred.

40. Mr Moffett confirmed that he had undertaken work prior to the accident for Mr Matthew Ellis of Superior Trees: T66.46. He said that he had subcontractor arrangements with Mr Ellis which were the same as those with Active agreed with Mr Duvier: T67.19. He told Mr Ellis of the arrangements with Active: T67.22.

41. The plaintiff identified that he had a business card under the name of The Quality Gardenmaster in order to make himself known and this had remained largely unchanged since about 1998, apart from adding the fact that he was a qualified arborist: T67-T68.

42. Mr Moffett confirmed that in the period from 2010 to 2013 he kept a diary which was a paper record of who he had performed tree work for and when. He said he did this in order to determine how much to invoice for the work. This diary did not become part of the evidence.

43. Mr Moffett gave evidence of various certificates he had obtained in relation to his work, including in relation to operating a chainsaw.

44. The plaintiff confirmed that following a conversation with Mr Hobbs of Active in the Blue Mountains in early 2018 that his supervisory observer work for Active was withdrawn by Active in about March 2018: T71.24.

45. Since that time, Mr Moffett indicated that he has looked for work online, in local newspapers and through advertising. However, he said he could not do the same work as prior to the accident because of upper body pain through movements at the chest, head and above levels with a chainsaw. Mr Moffett said that this was very painful especially after prolonged periods in the neck area and the area between his shoulders: T72.39-T73.26. He said he had to manage his body but kept trying for a while. Mr Moffett said that he took on lighter and more limited jobs including weeding. He said he had no problems with bending over or lifting below his waist: T74.37.

46. Because of continued problems, the plaintiff pursued more radiological investigations in 2016. He also obtained certificates relating to responsible service of alcohol and responsible gaming to assist him in applying for jobs. In May 2018, he worked for a short period with a friend, Mr Peters, who ran Port Stephens Cranes, as a dogman. He was only able to do the work for two days as he had problems looking up at the crane and his neck became very sore. He had to put his hands behind his hard hat to support his neck and formed the view that it was not an appropriate job for him.

47. Mr Moffett said he then obtained casual work from November 2018 to April 2019 at the Nelson Bay Golf Club earning about $25 per hour. He said the duties, which involved pouring glasses of beer and picking up glasses and putting them in dishwashers, were light duties which he could manage. He said he did this for about five to six months and the most work he obtained was 30 hours in one week. On occasions, he was also receiving Centrelink benefits.

48. In April 2019, the plaintiff stated that he sought and obtained employment with Carpet Court at Nelson Bay. He said this involved obtaining the carpet rolls from a warehouse with a forklift and cutting the carpet. The plaintiff said that this work also caused him some difficulties because of the need to look up from the forklift. The warehouse had a high ceiling. The plaintiff said that he had no problems with floor work, although he was injured whilst lifting. He suffered a double hernia which required surgery in November 2019. Because he believed the work was not good for his body, he as a matter of “instinct” resigned from Carpet Court but received workers compensation payments until February 2020.

49. The plaintiff stated that his symptoms were not quite as bad in early 2020 as they had been as he had been resting. He said he had no referrals to other doctors and had not received any conservative treatment. The plaintiff described his pain in the neck and upper back as being “not real good” and as coming and going: T87.37. He said he had received physiotherapy under a Medicare GP plan but could not afford ongoing treatment. He said he had also obtained analgesic relief including by Panadeine Forte by prescription and Panadol and Nurofen as well as using Voltaren for inflammation. The plaintiff said that he could have a very sore neck after sleeping if his neck was put other than at a straight angle: T89.14.

50. The plaintiff indicated that he intended to pursue further work at the Nelson Bay Golf Club when it reopened, but it has been closed due to the COVID-19 pandemic. He expressed the view that he could do bar work and would do it if he was offered it. He confirmed that he had been on Centrelink benefits recently.

51. Mr Moffett said that he had not been undertaking any gardening work through his business due to the COVID-19 restrictions: T90.46. He said he would be able to do weeding, light gardening and lawn mowing if he did not have to do it all day: T91.

52. The plaintiff indicated that he had to attend his general practitioner for prescriptions every few months for Panadeine Forte: T92.12. He said the attendances were bulk billed.

53. The plaintiff confirmed that he had not received any workers compensation payments from Active for any treatment he had received. Treatment received was either paid for by himself or through Medicare. The plaintiff said that a box of Panadeine Forte lasted him about two months and he used Panadol or Nurofen more often.

54. Whilst he was undertaking services for Active, Mr Moffett said he did not receive any superannuation and he had his own superannuation. He said if he wished to take a day off he did not have to seek the permission of Active. He said he did not receive sick leave or holiday pay from Active while undertaking work for them. If he had other work to do through his business, Mr Moffett confirmed that he was able to and did knock back work with Active. This included for jobs that Active had referred to him as well as work obtained independently: T93.

55. The plaintiff confirmed that he attended various general practitioners in relation to matters arising from the accident. This included seeing a doctor at the South Lake Medical Centre at Lake Macquarie on 5 March 2014. A copy of the medical certificate completed became part of Exhibit J and the notes include “neck injury - ? fracture T1” following the relevant doctor first treating the plaintiff on 27 November 2013. Other medical certificates were part of Exhibit J including a medical certificate from Dr Rodney Beckwith dated 19 March 2014 which included as the current diagnosis “T1 fracture”. It is unclear what Dr Beckwith had in front of him when he made this diagnosis. An earlier certificate from a Dr Jarvis dated 17 February 2014 also included the diagnosis of “T1 fracture”. There is no clear evidence as to the radiological material Dr Jarvis had in front of him when he made the diagnosis. X-rays of the thoracic spine reported on by Dr Gradinscak dated 4 February 2014 and of Dr Bobby dated 4 February 2014 (CT scan) do not expressly refer to a fracture at the T1 level. The references to a T1 compression fracture in the reports of Dr Gradinscak and Dr Bobby appear to be the notes of the general practitioner Dr Beckwith referring the plaintiff for radiological examination.

56. The plaintiff was then extensively cross-examined by counsel for the first defendant, Mr Robin. The plaintiff stated that at the time of the accident on 25 November 2013 he had 15 years’ experience as an arborist but had no formal arborist qualifications. The plaintiff said he was experienced as a tree lopper and in arborist duties but was not a qualified arborist as at the date of the accident.

57. The plaintiff was asked questions about not commencing work under the business name The Quality Gardenmaster until May 2000 as opposed to 1998. The plaintiff was not able to assist with the suggestion that the business name was not activated until 24 May 2000. The plaintiff denied that in the period from 1998 to 2000 he was directly employed by Active: T124.25. However, he did not dispute that the business name was not registered until 24 May 2000: T124.39.

58. The plaintiff was asked a number of questions about his experience prior to the accident. The plaintiff confirmed that he had personally worked on a EWP prior to the accident but had not used an hydraulic saw. He could not recall whether he had worked on an EWP prior to the accident for Active. He assessed the number of times that he had used an EWP per year prior to the accident as about once a year: T125.31. The plaintiff accepted that an EWP operated from the back of a truck and could extend to about 10 metres above ground. The plaintiff agreed that the EWP had an enclosed fibreglass bucket at the end of the EWP arm and that the bucket extended up to about the lower rib height. The plaintiff also agreed that the bucket itself was not transparent. Whilst the plaintiff agreed that someone in the bucket could not look immediately below the bucket he stated that someone in the bucket could look over the side of it. The plaintiff accepted that someone in the bucket wore a safety harness which was connected to the bucket and that there were manual controls of the EWP bucket for the person in the bucket to use.

59. The plaintiff confirmed that prior to the accident he had worked on Active sites where EWPs with buckets were used.

60. In relation to an hydraulic saw, the plaintiff confirmed that cables came out of the handle of the saw which extended to the bucket with one cable going in and one cable going out. The plaintiff accepted that the hydraulic saw with the handle was about 1.5 metres in length with the saw at the end of the handle and at the other end there was a handguard with a trigger mechanism. A photograph of an hydraulic saw which the plaintiff confirmed as being similar to one used on the day of the accident became Exhibit 1D1 in the proceedings. The plaintiff accepted that generally an operator turned their body slightly to the side whilst using the hydraulic saw: T129.9.

61. In relation to the operator of the hydraulic saw in the bucket, the plaintiff accepted that the operator’s attention was focussed on cutting: T131.13. He agreed that sawdust and vibrations were caused by the cutting as with a chainsaw. He accepted that sometimes it was a dangerous procedure for an operator using an hydraulic saw but did not agree that every use of an hydraulic saw was dangerous for the operator: T132.3. The plaintiff accepted that the operator had to be very careful in using an hydraulic saw: T132.8.

62. In relation to communications between the person in the bucket and the persons below, the plaintiff accepted that between 1998 and the time of the accident, the methods of communication between the operator in the bucket and the rest of the crew consisted of hand signals, eye contact or raising the saw: T132.18. The plaintiff also agreed that before the accident he had been part of a crew conducting work for Active where an hydraulic saw was used from a bucket to cut branches from trees: T133.3. When asked whether hand signals, eye contact and raising the saw was the only system used for communication prior to the accident, the plaintiff said that voice was also used and could sometimes be effective if loud enough even with the use of the chipper: T133.25. He agreed that no alternative system had been proposed by Active including radios. He said he did not ask for radios for the crew prior to the accident. The plaintiff confirmed that eye contact with at least one crew member on the ground by the cutter in the bucket was “the standard procedure” adopted for communication to avoid injuries to persons from branches falling on them: T135.36. Mr Moffett also confirmed that this was the standard procedure used by Active in the period from 1998 to 2013: T136.8.

63. Mr Moffett agreed that where work was undertaken by Active for customers where he participated, the customer paid Active and then Active paid him for his services. He said he was not paid directly by an Active customer: T136.16. From 1998, the plaintiff confirmed that clothing in the form of shirts with Active logos on them was issued to him by Active. In addition, Active provided from 1998 traffic cones, “witches” hats and other control devices. Active also provided the EWP, the truck and the chipper and each had Active logos on it: T137.1-.7. The plaintiff also confirmed that he had received a magnetic sign from Active which could be attached to a toolbox.

38. In relation to the provided Active work shirts with a logo, the plaintiff confirmed that he had been provided a number of shirts from 1998 which became a safety orange colour in early 2000. He said he wore the Active work shirt with the logos most of the time from 1998 but not always. He also agreed that other crew members mostly wore the Active work shirts. The plaintiff stated that he wore an Active orange work shirt with his own chainsaw pants and equipment including hard hat on the day of the accident: T138.36. The plaintiff stated that he thought that all four people in the crew were wearing Active provided work shirts on the day of the accident.

39. The plaintiff was then asked a number of questions in relation to his role at the site on the day of the accident. The plaintiff said he could not recall a meeting with Mr Brady from Active on site to discuss the work to be performed on the day of the accident prior to the day of the accident. He denied he was the “leading hand” on site on the day of the accident: T139.33. He initially accepted that the “leading hand” was in charge overall of the site but then said this did not include the crew: T140.7; T141.41. He said it was not necessarily the case that a leading hand was nominated by Active but this was sometimes the case. The plaintiff said he was never told that he was the leading hand for the crew for a number of months prior to the date of the accident: T140.33-.38. This was contrary to the evidence of Mr Brady and Mr Robin. The plaintiff accepted that the leading hand was usually the most experienced person on site who was responsible for ensuring the crew was operating safely and efficiently “in getting the job done”: T141.50.

40. The plaintiff was asked whether the leading hand was responsible for completing “the paperwork” for Active. He said that anyone could do this and it was not necessarily the leading hand. Similarly, the plaintiff said that the leading hand did not necessarily complete any work site safety assessment. He said anyone could do this. The plaintiff specifically denied that he was the leading hand of the crew on the day of the accident: T143.8.

41. The plaintiff was then taken to the Active Work Site Hazard and Risk Control Assessment document which became Exhibit 1D4 in the proceedings. The plaintiff confirmed that he completed the form. The plaintiff said that he arrived on site at about 7am and ticked the relevant boxes on the form and the tasks to be completed. The equipment to be used was noted on the form. He accepted that he ticked that the weather at the time involved “clear sky”. He also accepted that the form was signed by all of the persons working at the site including him. The plaintiff said that he was provided with the document by Mr Brady from Active to fill out for Active. He denied, however, that Mr Brady had given him the responsibility on behalf of Active to fill out the form. He said he chose to fill it out.

42. The plaintiff was then taken to a document entitled “Workplace (Toolbox) Meetings Minutes & Outcomes” which became Exhibit 1D5 in the proceedings. The plaintiff confirmed that his handwriting was on the first page of the document, the ticks on it were his and that he was the nominated first-aid officer. He agreed that he presented to the toolbox meeting and obtained the signatures of the other members of the crew: T148. When asked whether he made the other members of the crew sign the document, the plaintiff said that the work could not be performed without their signatures. The plaintiff agreed that on page 3 of the document the reference to the company for whom the various persons were related was Active. The plaintiff accepted that the Workplace (Toolbox) Meetings document was given to him by Mr Brady of Active for completion and that it has Active’s logo on it. He agreed that he filled out the form for Active and intended the document to be given back to Active but denied that he did so as the leading hand on the site: T150. The plaintiff accepted he advised Mr Cauduro, the liability expert, that no safety toolbox talks had been conducted by Active on the morning of the incident: paragraph 2.2.7. He agreed that he did not tell Mr Cauduro that he had undertaken a toolbox meeting or had completed a form relating to it: T151.

43. The plaintiff agreed that he had been undertaking work for Active since 1998 and was the longest working member for Active on the crew as at the day of the accident: T152.15. The plaintiff agreed that in working for Active on the day of the accident he knew that an hydraulic saw would be used to cut branches which would fall to the ground operated from a EWP: T152. He accepted that a she oak or casuarina tree was the tree being cut relevant to the accident and that it had a dense, heavy wood. The plaintiff accepted that one of the greatest risks involved in the work was of branches being cut by the operator and falling after being cut: T154.1; T155.31. The plaintiff agreed that he was aware on the day of the accident of the concept of a “drop zone” which involved the area below and around the bucket of the EWP where branches would fall when cut: T154.6-.17. He said the area of the drop zone depended on what was being cut: T154.25.

44. The plaintiff accepted that the first defendant Mr Robin had been cutting for a number of hours prior to the accident and had sawn multiple trees. He did not recall whether Mr Robin had cut similar branches to that which had fallen, being of a 25cm diameter, prior to the accident: T156.3.

45. Mr Moffett accepted that it would take Mr Robin at least five seconds to cut through a branch of a 25cm diameter before it would fall: T156.8. He did not accept that it would take up to 10 seconds to do that depending on the angle. He also accepted that it would take one to two seconds for a branch once cut to fall: T156.22.

46. The plaintiff could recall Mr Brady attending on the day of the accident at about 7am but could not recall him staying for about 15 minutes. He denied that after Mr Brady left he became the supervisor of the crew at the site: T156.32.

47. The plaintiff was asked whether there were any pieces of equipment present on the day of the accident which had “The Quality Gardenmaster” label on them. The plaintiff said that he had his own tools there including a chainsaw, rake and blower but agreed that they did not have the identification of the business name The Quality Gardenmaster on them on the day of the accident: T160.3. The plaintiff said that Active had control of, and was coordinating, the tree lopping activities on the site by the crew with the crew being guided by what Mr Brady wanted them to do: T160.14. He agreed that if there was a problem at the site that Active would be contacted as it was their job site and he was doing the job for Active.

48. On the day of the accident, the plaintiff agreed that Mr Robin was in the bucket with a harness connected to him and had to connect the hydraulic hoses to the hydraulic saw and raise the bucket for the purposes of undertaking sawing activities. He agreed that Mr Robin was wearing a safety helmet and earmuffs but did not know whether he was wearing eye goggles. He agreed that Mr Robin was undertaking sawing activities alongside a main road in Raymond Terrace and it was a noisy road. He also accepted that the chipper was running at the time and that had a separate engine to the truck. He gave evidence that when branches were fed into the chipper this created a very loud noise. In addition, Mr Moffett agreed that the truck engine had to be operating in order to provide power to the EWP which itself provided the power to the hydraulic saw. The plaintiff accepted that it was a very noisy work environment: T163.3. He also accepted that all the men present were wearing earmuffs and he probably was wearing goggles at the time: T163.10. The plaintiff agreed that Mr Robin was the only crew member doing work as a cutter in the bucket of the EWP and had undertaken that task for a number of hours while the other crew members cleared the cut wood and put it into the chipper.

49. Whilst the plaintiff agreed that he moved around the work site to look at the work, he said he was always near the chipper. He said he did not check on the truck or the chipper and was not the observer of, or superior to, Mr Wells and Mr Wellings in their work. Mr Moffett accepted that Mr Robin, whilst in the bucket working, had a slightly restricted range of movement and a marginally restricted range of vision but did not accept that he had a restricted capacity to lean over the bucket to look: T166.41-T167.34.

50. Mr Moffett accepted that immediately prior to the accident that Mr Robin had cut some branches of the relevant tree and that he had been watching Mr Robin and had seen him cutting the branches. He accepted that at that time Mr Robin would have had vibrations from the saw and that his attention would have been focused to cutting in front of him and there would have been sawdust: T168-T169. He accepted that it was dangerous to enter the drop zone without first having made eye contact with Mr Robin: T169.27. Mr Moffett accepted that if he entered the drop zone without eye contact with Mr Robin that there was a risk of injury based on his extensive experience in the work: T169.32. He also accepted that before entering the drop zone he should look up to see if the climber had finished his cut: T170.1.

51. The plaintiff was taken to paragraph 2.1.8 of Mr Cauduro’s report where it states:

“The Plaintiff informed me on the date of the incident either himself or the other groundsmen made eye contact with the First Defendant within the EWP, and the First Defendant ceased cutting/lopping tree branches, allowing the Plaintiff and the other groundsmen to enter the drop zone and retrieve any fallen tree branches and carry them to the wood chipper.”

78. The plaintiff initially gave evidence that he accepted that he did not know if he had made eye contact with Mr Robin having regard to this paragraph: T170.49; T171.10. The plaintiff then clarified his evidence to say that he looked at Mr Robin and he believed that the other worker Mr Wellings also looked at Mr Robin. He said that Mr Robin nodded towards them “to go in”: T171.7-.24. When it was put to the plaintiff that he could not be sure that he had made eye contact with Mr Robin before he entered the drop zone, the plaintiff said that he “was sure we made eye contact”: T172.21. While upon further questioning, the plaintiff agreed that he could not be sure that he did make eye contact with Mr Robin (T173.20), he said that he saw Mr Robin nod down to him and Mr Wellings: T173.39.

79. The plaintiff confirmed that at the time there was good light to see Mr Robin in the bucket of the EWP. He rejected the proposition that shortly before he entered the drop zone, he was not near the chipper but accepted that the chipper was to Mr Robin’s right. He denied that he was standing away from the chipper or almost behind Mr Robin. The plaintiff accepted that just before he entered the drop zone Mr Robin had been cutting a branch but not that part of the branch which hit him. He also denied that just before entering the drop zone he did not look up. The plaintiff said that he did look up and he saw Mr Robin stop cutting: T176.24-.34. The plaintiff accepted that in the period of five to seven seconds before he was struck he did not see Mr Robin cutting a branch and did not look up but confirmed that he did look up at Mr Robin before he entered the drop zone: T177.26. The plaintiff said that he was in the drop zone before Mr Robin commenced cutting the branch which struck him. The plaintiff denied that he entered the drop zone knowing that Mr Robin had commenced cutting a branch and denied that he entered the drop zone before he made eye contact with Mr Robin: T177.49-T178.4. He denied that he failed to take care for his own safety and also denied that Mr Wellings or Mr Wells warned him that Mr Robin was cutting whilst he was in the drop zone: T178.12.

80. Mr Moffett denied that Mr Robin before he started to cut made “a very clear hand signal” to the ground crew to indicate he was about to start cutting. Mr Moffett said he did not see the hand signal and did not see Mr Robin raising the saw or hear him “gunning” the trigger: T184.11-.24. Mr Moffett denied that he did not see Mr Robin do those things as he was not looking up. He denied that he went into the drop zone after it was clearly indicated to him that Mr Robin was about to cut: T184.32.

81. Mr Moffett was asked whether on the day of the accident he was unduly fatigued and overtired and was unfit for work. He denied this and also denied that he went off during the day for rests other than at lunchtime: T188.

82. The plaintiff was then asked a number of questions about what he did after the accident including when he attended the John Hunter Hospital Emergency Department.

83. The plaintiff confirmed that after the accident he drove himself to John Hunter Hospital and spoke to the triage nurse. The plaintiff stated that he then gave a history to the doctor and complained of his neck and a painful right shoulder and pressure in his head: T184.48. He could not recall denying paraesthesia but agreed that he denied numbness. He could not recall denying pain in his arms or not mentioning a burning sensation. The plaintiff confirmed that he had a number of radiological examinations whilst admitted into John Hunter Hospital, including a CT scan, an x-ray and an MRI. The plaintiff denied that he was told the results of these radiological examinations and particularly that he was told they showed that there was no fracture of the plaintiff’s thoracic spine: T189.24; T189.43; T190.3. The plaintiff accepted that he was provided with a discharge referral directed to a Dr Spittaler upon discharge which he believed he consented to being sent to Dr Spittaler: T190.11. He agreed that he read it at the time but had some recollection that it was only one page long: T191.43. He did not recall the discharge referral referring to the relevant medical imaging results which showed no fracture of the cervical spine or of the thoracic spine: Exhibit H page 51. The plaintiff said that he did not read anything when he left hospital which indicated that there was no fracture of the thoracic spine at the T1 level: T190.23; T192.1-.12.

84. The plaintiff was then cross-examined by counsel for the first defendant in relation to a number of medical consultations which he attended from 27 November 2013 until March 2014 including those where he obtained a medical certificate from a general practitioner. The plaintiff denied that when he attended these medical consultations he knew there had been no fracture of his spine at the T1 level. He said that no one at this time had told him this and he rejected that he knew it when he left the hospital. The plaintiff said that initially he thought there was a fracture at the T1 level. He rejected the suggestion that he told various doctors that he had a fracture at the T1 level when he knew that he did not have such a fracture. The plaintiff accepted that he moved from the doctor who he saw on 27 November 2013 at Dora Creek to another medical practice to see a Dr Beckwith as it was closer to where his girlfriend lived. He agreed that he told Dr Beckwith at the Reliance Medical Centre on 3 February 2014 that he had a fracture of the T1 level at work: T193.13. The plaintiff agreed that Dr Beckwith arranged radiological investigations and he told him that the fracture had healed up well in February 2014: T193.27; T194.6. He also agreed that Dr Beckwith recommended he see a chiropractor and did not organise physiotherapy.

85. The plaintiff accepted that he saw a Dr Jarvis on 17 February 2014 who provided him with a medical certificate. This certificate said that he had a fracture at the T1 level. He agreed that he submitted the medical certificate to his insurer.

86. The plaintiff agreed that he saw a general practitioner after this in March 2014 and did not seek a physiotherapy referral or a prescription for Panadeine Forte and did not complain at that time of left arm or hand symptoms.

87. The plaintiff was then asked a number of questions about consultations with general practitioners from September 2016 for various conditions. He accepted that he did not consult a general practitioner about his accident injuries from March 2014 until September 2016: T237.16. It was put to the plaintiff that in a number of the consultations he made no reference to neck pain or arm weakness but the plaintiff could not recall the details of the consultations.

88. The plaintiff accepted that in October 2016 his general practitioner, Dr Ranasinghe, had arranged for a CT scan of the thoracic and cervical spine and discussed the results with him: T199.24; T199.50. The plaintiff agreed that Dr Ranasinghe referred him for an assessment to Dr Edger in November 2016: T200.46; T201.21. The plaintiff agreed that he saw a female doctor in February 2017 and that the doctor (Dr Sophia Roser) had access to the x‑rays, CT scan and MRI scan undertaken at John Hunter Hospital in November 2013: T201.40-T202.7. The plaintiff confirmed that Dr Roser told him that there was no evidence from radiological investigations at the time of presentation and thereafter that he had an injury at the T1 level: T202.7. He also agreed that Dr Roser told him he had no gait disturbance and that his presentation was “unremarkable”: T202.21. The plaintiff stated that this was the first time that he had “promptly” found out that there was no evidence of an injury at the T1 level: T202.41-.50; see Dr Roser’s report at Exhibit H page 66. He agreed that Dr Roser told him that in relation to his neck pain and headaches he could simply take analgesia: T203.9. He also agreed that Dr Roser indicated that he should have physiotherapy for neck strengthening exercises as part of his treatment.

89. Counsel for the first defendant further cross-examined the plaintiff in relation to his denial of the proposition that Mr Robin, the first defendant, had made a hand signal to the ground crew that he was about to start cutting shortly before the accident (T184.11-.17) and the plaintiff’s evidence in chief that “we made eye contact and he nodded his head at us and put the high-drive saw against the bucket”: T41.46. Mr Moffett confirmed his evidence in chief and particularly confirmed that Mr Robin nodded his head at him and Mr Wells and put the hydraulic saw against the bucket of the EWP and stopped cutting on the day of the accident. The plaintiff effectively said that he took the nod of Mr Robin towards the ground crew as being that it was “safe to go in”: T227.41. The plaintiff also confirmed his answers given in cross-examination at T184.11-.35. Mr Moffett did not agree that the evidence he gave at T184 in cross-examination was inconsistent with the evidence he had given in chief at T41. In particular, the plaintiff did not see as inconsistent his evidence at T41.46 that he saw Mr Robin “put the high-drive saw against the bucket” with his evidence that he did not see Mr Robin “[raise] the hydraulic saw and gunned the trigger to indicate that he was about to start cutting” (T184 .24): T230.35; T231.5.

90. The plaintiff was then taken again to paragraph 2.1.8 of Mr Cauduro’s report. Mr Cauduro was the liability expert whose report was tendered on behalf of the plaintiff. The plaintiff agreed that he never told Mr Cauduro that he had seen Mr Robin put the saw against the bucket: T232.8. He also agreed that he had never told Mr Cauduro that Mr Robin had nodded his head towards Mr Wells and him: T232.17.

91. Mr Moffett was asked further questions about his completion of the Work Site Hazard and Risk Control Assessment report that he was asked by Mr Brady to fill out for Active. The plaintiff confirmed that he filled out the report on behalf of Active: T233.5. The plaintiff was then taken to a request for further and better particulars made on behalf of Mr Robin by his solicitors and the response provided by the solicitors for the plaintiff. These became Exhibit 1D7 in the proceedings. The request dated 27 January 2017 was relevantly in the following terms:

“11. Is it alleged that Active Tree Services Pty Ltd undertook a Safe Work Method Statement, pre-work assessment, job safety analysis and/or hazard risk assessment of the work to be carried out? If so, specify nature and extent of the job safety analysis and hazard risk assessment carried out by Active Tree Services Pty Ltd.”

92. The relevant reply dated 22 February 2017 was in the following terms:

“11. An employee of Active Tree Services did not, to the plaintiff’s knowledge, complete a work site hazard assessment. Active Tree Services delegated the task to the plaintiff who completed same.”

93. The plaintiff was then asked a significant number of further questions relating to his medical consultations primarily with general practitioners from February 2014 until 2020. These involved detailed questioning about what the plaintiff said or did not say to various medical practitioners. In general terms, the plaintiff gave evidence that he could not recall the dates or details of the various medical consultations. In particular, in relation to many consultations from September 2016 onwards, the plaintiff could not recall whether he complained to medical practitioners regarding problems with his neck or left arm or sought a referral to a physiotherapist or a prescription for drugs for pain relief such as Panadeine Forte.

94. The plaintiff confirmed that he stopped attending the Reliance Medical Centre in February 2014 where he had usually consulted Dr Beckwith. He accepted that the next time he consulted a general practitioner was in September 2016, some two and a half years later when he attended general practitioners at the Nelson Bay Medical Centre: T237.10-.16. These included Dr Ranasinghe whom the plaintiff frequently consulted. The plaintiff stated that he changed medical centres as the Nelson Bay Medical Centre was closer to where he lived.

95. In the frequent consultations from 23 September 2016, the medical records indicate that the plaintiff often attended general practitioners without mentioning symptoms alleged to arise from the accident: see Exhibit N. Some caution should be exercised in placing too much weight on the histories set out in medical notes for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. However, the omission of any notes on these matters was a frequent aspect of the notes. The relevant entries will be noted.

96. At a consultation with Dr Ranasinghe on 6 October 2016, the reason for the visit was recorded as “moderate, chronic neck pain”. The history recorded had the plaintiff asking for a referral to a specialist because of “occipital headaches”. The notes provide:

“Nil arm weakness

Nil neurology nil new injuries”.

97. The plaintiff stated that he remembered telling Dr Ranasinghe of having a fracture at the T1 level.

98. In relation to the consultation with Dr Ranasinghe on 18 October 2016, the plaintiff did not recall the date of the consultation but agreed that Dr Ranasinghe had sent him for a CT scan of the cervical and thoracic spine. The plaintiff could not recall the results of the CT scan being discussed with him nor being told by Dr Ranasinghe that there was not narrowing enough at the C5/6 levels to cause nerve root compression and no problems were indicated at the C7/T1 levels.

99. The plaintiff remembered little of a further consultation with Dr Ranasinghe on 31 October 2016 where the results of the CT scan were apparently discussed with him. The plaintiff did however recall being told that there were no findings in relation to a fracture in the past at the T1 level.

100. In relation to a consultation on 10 November 2016, the plaintiff did not recall the details of this consultation but agreed that he sought further investigation with a specialist in relation to his cervical spine. He confirmed that Dr Ranasinghe referred him to Dr Edger at John Hunter Hospital. He could not recall whether on 10 November 2016 he made any complaints in relation to neck pain, left arm pain or sought a prescription for Panadeine Forte or a referral to a physiotherapist.

101. The plaintiff confirmed that he saw a member of Dr Edger’s team on 20 February 2017. This was, as indicated above, Dr Roser.

102. The plaintiff was asked questions about an admission to John Hunter Hospital on 3 July 2017 where he complained about fevers, headaches and night sweats with an inflamed gallbladder and a chest infection: see Exhibit H page 67. He did not recall mentioning or complaining about neck pain or left arm pain and agreed that he did not tell the Emergency Department staff that he had a previous fracture at the T1 level. The plaintiff agreed that he was discharged shortly after being admitted.

103. The plaintiff did not recall the detail of a consultation with Dr Ranasinghe on 3 July 2017 or informing the doctor that he had been seen in John Hunter Hospital. However, the plaintiff confirmed that he had told Dr Ranasinghe that he was getting “shivers” and had lost at least 10kg in weight. The plaintiff said that he was later diagnosed with Q fever. The plaintiff confirmed that Dr Ranasinghe told him at about this time that he had most likely passed a gallstone. He also agreed that at about this time he was referred to Professor Ghabrial for review. The plaintiff accepted that he was seeing a lot of doctors in the 2016-2017 period.

104. It was put to the plaintiff that the last time he saw Dr Ranasinghe was on 13 July 2017 or at least in mid-July 2017. The plaintiff stated that he could not recall the last date that he saw Dr Ranasinghe but accepted that he had not seen him for a while.

105. The plaintiff was then asked further questions in relation to what he had been told by Dr Roser, the neurological registrar, on 20 February 2017 and whether he had told Professor Ghabrial of what Dr Roser had said to him. The plaintiff confirmed that he had seen Dr Roser on 20 February 2017 at John Hunter Hospital following a referral by Dr Ranasinghe to Dr Edger: see Exhibit H pages 64-66. The plaintiff also confirmed his evidence at T202.41-203.3 that following seeing Dr Roser on 20 February 2017, he became aware that there was no evidence from the radiological investigations of the plaintiff ever having an injury at the T1 level.

106. The plaintiff accepted that he saw Professor Ghabrial for the first time in about August 2017. Professor Ghabrial’s report dated 3 January 2018 suggests that Professor Ghabrial saw Mr Moffett on 31 August 2017 (later evidence showed the consultation was on 10 August 2017). The plaintiff confirmed that he did not take the radiological investigations undertaken at John Hunter Hospital on 25 and 26 November 2013 with him as he did not have copies of them. Whilst agreeing that he had no reason not to tell Professor Ghabrial his history of treatment, the plaintiff did not recall taking a copy of Dr Roser’s 20 February 2017 report with him (Exhibit H page 66) or telling Professor Ghabrial of Dr Roser’s conclusions that he had not suffered an injury at the T1 level.

107. After some further cross-examination, the plaintiff confirmed that he knew about Dr Roser’s letter to Dr Ranasinghe in August 2017 and that Dr Roser told him that there was no evidence of an injury at the T1 level. The plaintiff could not recall whether he told Professor Ghabrial in the consultation in August 2017 whether he had a fracture at the T1 level or that he had seen someone in Dr Edger’s department. He also did not recall whether he told Professor Ghabrial what he had been advised by Dr Roser. He denied deliberately misleading Professor Ghabrial in relation to his medical history concerning the alleged fracture at the T1 level.

108. The plaintiff confirmed that Professor Ghabrial referred him for an MRI scan of the cervical and thoracic spine but could not recall the results of the scan. The plaintiff was then shown the report of Professor Ghabrial which became Exhibit 1D8 in the proceedings dated 31 August 2017. The plaintiff confirmed he had seen this report. This followed a referral by Dr Ranasinghe of the plaintiff to Professor Ghabrial by letter dated 7 July 2017: see Exhibit N. In the light of the report, the plaintiff confirmed that he had seen Professor Ghabrial on 10 August 2017 and was aware of his report. He also agreed the next time he saw Professor Ghabrial was on 20 May 2020. He could not recall telling Professor Ghabrial the content of Dr Roser’s report dated 20 February 2017, including that she found no evidence in the radiological scans of an injury at the T1 level including a fracture. The plaintiff said he did not have the relevant scans to take with him to Professor Ghabrial. The plaintiff also confirmed that he did not see Professor Ghabrial for a medical re-examination for the purposes of the whole person impairment percentage assessment set out in Professor Ghabrial’s report of 3 January 2018. The plaintiff accepted that he had been told by Dr Ranasinghe and Dr Roser that the radiological investigations indicated there was no fracture at the T1 level but he wanted a further opinion from Professor Ghabrial as he still had pain. He stated that he did not recall whether he told Professor Ghabrial that he had been informed by two doctors that he had no injury at the T1 level.

109. In later cross-examination, the plaintiff agreed that he had been asked by Professor Ghabrial on 10 August 2017 to complete a “Back & Neck Pain Assessment Form” which became Exhibit 1D11 in the proceedings. This document showed that the plaintiff had shaded in the areas of a body to indicate where he experienced aches and pains in the neck and middle back areas only. The plaintiff indicated that he had aches, burning and pins and needles in the areas and changing positions made the pain worse. He said he had stiffness in his back or neck first thing in the morning but it varied and he had recently increasing headaches. He said his pain was there “all the time”. On the second page of the document the plaintiff said that pain killers gave him moderate relief from pain, he could stand as long as he wanted without extra pain, he could undertake personal care normally without causing pain and that pain prevented him from lifting heavy weights but he could manage light to medium weights if they were conveniently positioned. The plaintiff said that pain did not prevent him from walking any distance and he could travel anywhere but it gave him extra pain. The plaintiff confirmed that he had given the document to Professor Ghabrial for the purposes of treatment.

110. The plaintiff agreed that he did not shade his left arm or his fingers as indicating any problems.

111. It was put to the plaintiff that Professor Ghabrial had recommended physiotherapy and he agreed with this. He rejected the suggestion that he had never obtained physiotherapy and said he had been about five times after the date of the first report of Professor Ghabrial being 31 August 2017.

112. The plaintiff was then asked questions about the John Hunter Hospital discharge referral from 26 November 2013. This became part of Exhibit 1D9 in the proceedings. The plaintiff’s attention was directed to the second page of the referral which states: “MRI was performed to rule out further injuries – no signal change noted, no evidence of an acute fracture”. The plaintiff explained that he was given a copy of the referral and read it but he took this to mean no further evidence of an acute fracture. He denied that as at 26 November 2013 he was aware that there was no evidence of an acute fracture at the T1 level. He said that from his time in hospital and what he had been told, he understood there had been a fracture at the T1 level but accepted that this belief was no longer held by him following his consultation with Dr Roser on 20 February 2017.

113. The plaintiff was later cross-examined in relation to his consultations with doctors at the Tomaree Medical Centre from February 2017. He accepted that initially he was also consulting Dr Ranasinghe at this time but stated that he started consulting doctors at the Tomaree Medical Centre as it was easier to obtain a consultation at that medical centre. In relation to his various consultations with doctors at the Tomaree Medical Centre from February 2017, the plaintiff said he could not recall whether he had made any complaints in the various consultations in relation to a neck injury, symptoms as to his neck, a left arm injury or requested prescription relief such as Panadeine Forte or a referral for physiotherapy. The plaintiff could not recall seeing Dr Talbot on 8 June 2017 where it is recorded that the plaintiff had a “throbbing headache” but “no neck stiffness”: Exhibit H page 10. Similarly, the plaintiff could not recall seeing Dr Talbot on 13 June 2017 where he is recorded as having informed Dr Talbot that he was no longer having severe headaches and was planning on going back to work the next day: Exhibit H page 11. The plaintiff confirmed seeing Dr Strydom in about June 2017 complaining of widespread body pains which he believed was later connected to Q fever. While he could not recall the precise consultation on 10 August 2017, the plaintiff recalled informing Dr Talbot that he had fully recovered from Q fever and by this time was back at work full-time. The plaintiff recalled seeing Dr Wearne in about October 2017 where he stated that he was still getting tired from the Q fever and was planning to travel to Fiji which he confirmed he did. The plaintiff was also taken to an entry in the consultation notes with Dr Wilcox on 13 September 2018 where it is recorded: “neck # 2013, was able to do some work but getting worse”. He agreed that it was incorrect that he had a fracture in the neck in 2013.

114. The plaintiff was then cross-examined about a number of consultations concerning tendinosis or epicondylitis in the right elbow which was causing him problems: see the consultations for 13 July 2018, 6 March 2019 and 23 March 2019. The plaintiff confirmed that as at March 2019 he found his work as a barman difficult because of the repetitive strains in the light of his tendinosis in the right elbow. He agreed that this was not due to any problems with his neck or arm arising from the accident: T290.47.

115. The plaintiff was then asked a number of questions about an umbilical hernia which he suffered in September 2019 whilst lifting in the course of his job at Carpet Court. The plaintiff attended to see Dr Mare on 21 September 2019 at the Tomaree Medical Centre. The notes indicate that the plaintiff was suffering from umbilical pain. An umbilical hernia was noted which was reduced with a gentle pressure. Imaging was requested and in due course the plaintiff underwent surgery for an umbilical repair with Dr Adeeb Majid. The plaintiff agreed that he was off work on workers compensation from 21 September 2019 until 10 February 2020 due to the umbilical hernia. He also accepted that the hernia was suffered when he was lifting carpet during his full-time job at Carpet Court. The plaintiff agreed that in the period from 15 April 2019 until 21 September 2019 he had worked at Carpet Court but could not recall in that time whether he had taken any time off work for his arm or neck injury arising from the accident on 25 November 2013.

116. The plaintiff confirmed that he had seen Professor Ghabrial on 11 May 2020 and told him that he had stopped work in November 2019. The plaintiff could not recall whether he told him that the reason he had stopped work was due to the umbilical hernia. When it was put to the plaintiff that he had not told Professor Ghabrial that his period off work was due to an umbilical hernia, the plaintiff said that he could not see any reason for him not to tell Professor Ghabrial that.

117. The plaintiff confirmed that he earned $721.38 net of tax in the Carpet Court job for a 38-40 hour week: T294.43.

118. Mr Moffett stated that from about February 2014 he performed light duties for Active. He denied that from February 2014 he did the same duties at Active as he had done prior to the accident. It was put to the plaintiff that his tax return showed that after February 2014 his personal taxable income had increased until March 2018. The plaintiff said it had increased in 2015 but from 2016 to 2018 as far as he could recall it was the same.

119. The plaintiff denied that he had no physical restrictions in working for Active after February 2014. He also denied that he could have performed his pre-injury duties for Active after February 2014. While accepting that he could operate chainsaws after February 2014, and had bought three chainsaws in the 2015-2016 period, the plaintiff said that he had restrictions arising from the accident and he had to buy new chainsaws as the others were worn out. When asked whether he was still busy doing work for The Quality Gardenmaster in 2016, the plaintiff said he was not busy.

120. The plaintiff confirmed that he could have earned the same money if he had not made a claim in the proceedings against Active. He also confirmed that his neck and arm condition did not stop him working. He said importantly, that he did not take any days off work from February 2014 because of his neck and arm condition as he did not have to: T297.34.

121. The plaintiff was then cross-examined in relation to his reasons for resigning his job at Carpet Court in 2020: see T85.30-.41. The plaintiff stated in effect that it was his “instinct” that the job was “no good for [his] body”. The plaintiff accepted that he had no medical evidence that he needed to resign for the purposes of his body from the job at Carpet Court and that he relied on his instinct as to that matter. He denied that he could still have worked at Carpet Court. The plaintiff accepted in cross-examination that in relation to his umbilical hernia it was “pretty good now”: T87.13.

122. The plaintiff was asked questions about his bank statements which showed multiple purchases from Bunnings and Mitre 10 in 2020: Exhibits 1D12 and 1D13. The plaintiff agreed that he had made purchases from Bunnings and Mitre 10. In relation to the Bunnings purchases he said these were for home maintenance and gardening purposes. He said he was capable of doing this and capable of using a chainsaw. However, he said it was only a light chainsaw and he did not use it to cut or move any heavy branches. In relation to the purchases from Mitre 10 in Katoomba, the plaintiff said it was to assist his mother with her garden including planting plants for her. He said he did not use power tools for this but was able to travel from the Central Coast to Katoomba for this purpose.

123. The plaintiff was cross-examined on a number of areas by counsel for the second defendant, Active Tree Services Pty Ltd.

124. The plaintiff was asked about a consultation with Dr Ranasinghe on 10 November 2016 where he was referred to neurosurgeon Dr Edger. The plaintiff said that he recalled telling Dr Ranasinghe in relation to his pain in his upper back and neck but did not recall telling him about pain in the left arm or altered sensation and paraesthesia: T327.19. He accepted that he did not tell Dr Ranasinghe about any weakness in the left arm: T327.15. The plaintiff could not recall the details of his consultation with Dr Sofia Roser in Dr Edger’s team. However, the plaintiff accepted that he would have told Dr Roser any difficulties which he had in the consultation on 20 February 2017 as he was attending for medical treatment. The plaintiff accepted that as at February 2017 he had no left arm pain, no paraesthesia in his left arm and fingers but could not recall whether he had neither of these for quite a few years. The plaintiff importantly also accepted that in the period 2014-2017 he had not suffered from any left arm pain or any paraesthesia in his left hand or fingers: T328.48-T329.34.

125. The plaintiff was asked more questions in relation to the referral by Dr Ranasinghe to Professor Ghabrial in July 2017 (see Exhibit N). The plaintiff gave somewhat vague evidence that someone local who he could not recall suggested Professor Ghabrial and he wanted to see him for an opinion. Although initially, the plaintiff said he could not recall specifically asking Dr Ranasinghe for a referral to Professor Ghabrial, he later said that he thought that he specifically asked to see Professor Ghabrial. The plaintiff could not recall what scans he took to Professor Ghabrial for his appointment on 10 August 2017. It should be noted that previously in his earlier evidence the plaintiff stated that he did not take the CT scan report from John Hunter Hospital dated 25 November 2013 to Professor Ghabrial as he did not have it: T249.34. He also stated that he did not take the 26 November 2013 x-rays and MRI scan with him from John Hunter Hospital when he saw Professor Ghabrial: T250.19–.33. The plaintiff said that he did not remember giving that evidence earlier but accepted that he gave his answers to the best of his ability at the time and he believed his answers were accurate.

587. In my view, it was the obligation of Active not Mr Moffett to appoint an observer and to discuss the importance of the observer with the ground crew (or at least Mr Moffett) and Mr Robin. Applying s 5B of the CLA, and looking at the risk of injury to the plaintiff if he did not exercise reasonable care for his own safety, the risk of Mr Robin commencing to cut was not foreseeable, it was insignificant, and a reasonable person in the position of the plaintiff would have been focusing on removing the branches. It was difficult for the plaintiff to do that task in the drop zone while paying regard to the role of Mr Robin above him having regard to the noise of the EWP operating and the chipper. It was submitted that as he was the leading hand, Mr Moffett was responsible for safety at the site and thus appointing an observer. To appoint an observer involved taking a member of the crew from branch collecting or “chipping” duties. This would have lengthened the task. In my opinion, this was a matter for Active, consistent with the system of work set out by it in the relevant SWMS document.

588. In my view, the plaintiff in all the circumstances took the degree of care for his own safety that an ordinary reasonable person would take in the circumstances having regard to the established practice of the crew in relation to hand signals and the recommencement of cutting. I have considered each of the particulars of contributory negligence relied on and find that none have been proven by the defendants. I accept the plaintiff’s submissions on this issue.

589. The first defendant in his submissions urged a finding of 100% contributory negligence: 8 March 2021 submissions paragraph 11. This submission was also made by Active. This was based on a factual finding which I have rejected. Mr Robin was aware that Mr Moffett was engaged in chipping activities at the site on the morning of the accident before the accident. He saw the signal from Mr Robin that he was stopping cutting before going in with the others to collect the cut branches. He was not aware that Mr Robin was about to cut, nor would a person exercising reasonable care in his position.

590. Accordingly, contributory negligence is not established.

Damages

Introduction

595. The court has determined that the WCA and the WIM Act apply to the plaintiff's claim and not the CLA. However, in the event that the court is in error in that determination, it is necessary to make an assessment of damages under the CLA to assist any appeal court.

596. There were widely different submissions made by the various parties in relation to the assessment of the plaintiff’s damages under the CLA. Those submissions can be set out in summary in the following table.

Head of Damages	Plaintiff	Mr Robin	Active	WFI
Non-economic loss	30% NEL $158,000	Nil	Adopted Mr Robin’s submissions	Adopted Mr Robin’s submissions
Past out of pocket expenses	$3,313.80	$3,313.80 less amount for blood tests	$3,313.80 less amount for blood tests	$3,313.80 less amount for blood tests
Future out of pocket expenses	$44,250	Nil	Nil	Nil
Past economic loss	$85,780 Super: $6,941	$6,640 Super: assessed on $6,640	Adopted Mr Robin’s submissions	Adopted Mr Robin’s submissions
Future economic loss	$247,095 Super: $34,643	Nil	Nil	Nil
Attendant care services claim	Not pressed
Total of damages	$580,022.80

597. Some of the heads of damage claimed are influenced by the medical findings and, in particular, the preference for the evidence of Dr Maxwell (and Dr Roser and various radiologists) to the effect that the plaintiff never suffered a fracture at the T1 level of the spine in the accident. In addition, as indicated above, I have preferred the evidence of Dr Maxwell in the light of the evidence of a significant gap in treatment from 2014 to 2016, that the plaintiff did not suffer from trauma related disco-vertebral bar damage or trauma related disc damage, C8 nerve root damage or numbness or paraesthesia caused by his injuries in the accident.

Non-economic loss

598. No damages may be awarded to a plaintiff for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s 16(1) of the CLA. Under s 16(3) of the CLA, if the severity of the non-economic loss is assessed by the court as being equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the table which is set out in the section. From 1 October 2020, the maximum amount for damages for non-economic loss under the CLA is $687,000: Civil Liability (Non-Economic Loss) Amendment Order 2020 (NSW).

599. Under s 3 of the CLA, “non-economic loss” is defined as meaning any one or more of the following items: pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. In the present case, there was no evidence or claim by the plaintiff of a loss of expectation of life. The plaintiff has also not had any surgical intervention resulting in relevant scarring. He received no relevant scarring injuries in the accident. Accordingly, there is no claim for disfigurement. The matters relevant to non-economic loss are thus confined to pain and suffering and loss of amenities of life. An assessment of these matters must be made in the light of the medical findings which I have set out.

600. As stated, I prefer the evidence of the various experts, including Dr Maxwell, that the plaintiff did not suffer a fracture at the T1 level of his spine or C8 nerve root impingement or altered sensation and paraesthesia or disco-vertebral bar damage or disc trauma a result of his injuries in the accident. On the basis of the evidence, I find that the plaintiff suffered neck and back soft tissue injuries in the accident with associated headaches from time to time. I have found that the plaintiff continued to have some neck pain after returning to work in January 2014 but the neck pain was likely not severe in the period from February 2014 until September 2016 as the plaintiff on the evidence did not seek medical advice in relation to the pain in the period. The plaintiff’s alleged problems with his neck and back and headaches (and even allegedly to his arm) did not stop him working and there was no evidence that he took any days off work from February 2014 to March 2018 whilst he worked at Active because of his neck/back/headache conditions.

601. From early 2014 after he returned to work, with increasing severity from late 2016, I find that the plaintiff had some headaches, some pain in his neck and back including neck stiffness from time to time. This required five physiotherapy appointments as recommended by Professor Ghabrial. The plaintiff's problems arising from the accident did not require him to take any days off work whilst working for Active from January 2014 to March 2018. I have accepted the plaintiff's evidence that he had sporadic pains in the neck and upper back and obtained analgesic relief from time to time after leaving his work with Active. However, the reports of Professor Ghabrial and Dr Maxwell do establish in my opinion that the plaintiff suffers from ongoing pain in the neck area including in moving the neck and inflection and hyperextension of the neck and has mildly decreased movements and moderate tenderness at the T1 and C7 levels with mild muscle guarding.

602. Dr Maxwell found relatively poor tone of the cervical supporting muscles with some neck stiffness although he was of the view that these could be readily resolved with appropriate physiotherapy or exercise assistance. As stated above, I have found that the plaintiff suffered soft tissue injuries in the accident which continue to provide him with problems, including headaches, neck pain, stiffness and poor muscle tone. The stiffness in the plaintiff's neck was readily apparent to the court in the plaintiff’s movements whilst he was giving evidence. There was no apparent embellishment by the plaintiff in his presentation. In relation to his medical condition, he appeared to the court to be an honest and straightforward witness.

603. Although Dr Maxwell suggested in his oral evidence the need for only limited physiotherapy guidance over one to two months, the period over which the plaintiff has had problems and the limited assistance from the five physiotherapy consultations which have already occurred, point in my view to a much longer period of required physiotherapy guidance and treatment as well as intermittent non-prescription analgesic relief. Professor Ghabrial’s opinions support this.

604. I also take into account the plaintiff's evidence of the restrictions which he had due to his neck in some post-accident employment, particularly with Port Stephens Cranes and in garden activities. I accept that evidence.

605. Having regard to the medical evidence and the matters which I have referred to above, particularly the injuries being limited to soft tissue injuries which did not substantially affect the plaintiff’s employment from February 2014 to March 2018, I assess the appropriate percentage of a most extreme case in relation to the claim of the plaintiff as being 18% which produces damages for non-economic loss (as a proportion of the maximum amount that may currently be awarded for non-economic loss of $687,000) of 2.5% being $17,175 which, pursuant to s 16(4) of the CLA, is rounded down to $17,000. I reject the submissions of the defendants and the cross-defendant that no amount should be allowed for non-economic loss for the reasons which I have given.

Past out of pocket expenses

606. I would allow the medical expenses referred to in the submissions of the first defendant in the sum of $2,842: see Exhibit 1D20. The blood tests in dispute appear to be part of Mr Moffett’s stay in hospital and are thus connected with treatment and tests relating to his injuries. Other out of pocket expenses were agreed during oral submissions relating to travel ($404.00) and pharmacy expenses ($67.80). The total sum allowed is thus $3,313.80.

Future out of pocket expenses

607. There is some disagreement as to the appropriate sum for future out-of-pocket expenses. The defendants and cross-defendant say no amount should be allowed.

608. As stated, in my opinion there is some uncertainty about the period of future physiotherapy assistance which the plaintiff will require. In my view, it is likely to be much more than the one to two months which Dr Maxwell referred to having regard to the longstanding condition from which the plaintiff has suffered, including his neck stiffness and poor neck muscle tone.

609. I allow the sum of $250 for non-prescription analgesic relief as and when required.

610. Having regard to the uncertainty about the period necessary for physiotherapy treatment, I would allow a lump sum of $3,000. This allows physiotherapy assistance on a fairly regular basis for one to two years (with some intensity initially) but has been discounted due to the possibility that the plaintiff's condition may improve with appropriate assistance in that period.

611. In my view, there is no evidence to support an amount for possible surgical intervention or for any need for specialist review in the light of the extensive review which has been already undertaken. The amount for physiotherapy includes an amount for general practitioner referral to a physiotherapist and for review. I see no need for any further radiological review as sought by the plaintiff.

612. Accordingly, the amount allowed for future out-of-pocket expenses for the plaintiff is $3,250.

Attendant care services claim/commercial services claim

613. This head of damages did not appear to be pressed in final submissions.

614. In case I am in error on that point, in my view, no amount should be allowed for any claim for domestic assistance, including for future commercial domestic assistance. Having regard to my medical findings, I prefer the opinions of Dr Maxwell on this issue as set out in his reports that such assistance was not needed (Exhibit 2D3, reports dated 19 May 2020 and 14 October 2020).

615. The requirements of duration and intensity under s 15(3) of the CLA were not established on the evidence.

Past Economic loss

616. The plaintiff’s earnings from his business as reflected in his income tax returns for the financial years 30 June 2012 to 30 June 2019 may be shown in the following table which is derived from the evidence in Exhibits B and Q.

Financial year	Amount
30 June 2012	$26,348
30 June 2013	$34,932
30 June 2014	$35,697
30 June 2015	$59,388
30 June 2016	$48,784
30 June 2017	$48,910
30 June 2018	$22,177
30 June 2019	$3,930

617. It can therefore be seen that the plaintiff’s annual business earnings actually increased after the accident until the financial year ending 30 June 2018 when there was a substantial decrease. This seems to be linked to the plaintiff no longer receiving work from Active after March 2018 and having to seek other work.

618. The plaintiff makes various claims for past economic loss.

619. The plaintiff claims a loss of income in relation to the period from the day after the accident until he commenced work again in January 2014. The evidence was that the plaintiff had an income protection insurance policy which provided him with some payments in this period. No evidence was given as to the terms of the policy. In particular, there was no evidence whether there was paid a sum which reflected the plaintiff’s actual earnings or some set or capital amount. Having regard to the lack of evidence on this issue, in my opinion any amounts received by the plaintiff from the policy of insurance should not be taken into account to reduce the damages which he received.

620. A fundamental object of an award of damages in the tort of negligence is to provide that sum of money which will put the party who has been injured in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation: Livingstone v Rawyards Coal Co (1880) 5 App CAS 25 at 39 per Lord Blackburn. This has been followed and accepted in numerous later High Court cases: for example, Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63. The amount received by the plaintiff was from a third party pursuant to a contract that he as an injured person had entered into being a contract of insurance. There may also have been a right of subrogation under the insurance policy in the insurer. Having regard to the limited evidence, the court is not in a position to determine whether the benefit was somehow linked in financial terms to the quantum of the lost wages: see Bradburn v Great Western Railway Co (1874) LR 10 Ex 1; National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569 at 48; Downes v AMACA Pty Ltd [2010] NSWCA 76 at [79]-[86].

621. Looking at the evidence in Exhibit Q, it appears that the plaintiff’s annual earnings at about the time of his accident were $35,000 as a result of his business. The defendants appear to concede an amount of loss of $830 net per week in their written submissions. Allowing some deduction for Christmas and New Year holidays and likely time off of one week, leaves a period of loss of about seven weeks until mid-January 2014. This arrives at the sum of $5,810 ($830 × 7). I allow this sum for past economic loss as a result of the period when the plaintiff was recovering before his return to Active.

622. The first defendant initially allowed $11,620 plus superannuation. However, this was based on the plaintiff being off work for February 2014 which is not supported by the evidence: T51.50; T52.45 and T195.45. It is difficult to see how superannuation should be allowed when the plaintiff’s terms of engagement did not include superannuation.

623. Having regard to the evidence of the plaintiff’s earnings at Active and his evidence that he did not take any time off work at Active as a result of the injuries in the accident whilst he was working with it after returning to work, I do not allow any amount for loss of earnings in the period from February 2014 until the end of March 2018.

624. One then needs to turn to a consideration of the plaintiff’s economic loss, if any, from April 2018 to the present time. Relevant factors include the plaintiff’s reduction of work from Active not connected to the accident, the plaintiff’s Q fever with some time off work, the plaintiff’s hernia injuries and surgery, the Covid 19 reduction in the plaintiff’s potential bar work and the plaintiff’s elbow condition. But for the accident, the plaintiff would likely have undertaken tree lopping and clearing work as well as a wider variety of handyman and home maintenance and garden work. However, I accept the first defendant’s submission that the evidence establishes the plaintiff has had some home handyman paid work in late 2020 and early 2021: Exhibit 1D19. In my view, the appropriate way to deal with past economic loss from March 2018 to present is by the award of a buffer. I reject the submissions of the defendants to the contrary. The plaintiff’s neck condition has clearly caused a reduction in his earning capacity from March 2018. Doing the best I can in the light of the plaintiff’s pre-accident earnings, his various other injuries and illnesses and the time off which he had for them I allow the sum of $15,000 as a buffer.

625. In relation to past superannuation, in my view if the accident had not occurred, the plaintiff would have likely continued working for Active or a similar company. As a contractor, he did not receive superannuation payments from Active and thus he has suffered no past superannuation loss as a result of the accident.

Future economic loss

626. The plaintiff claims a large amount for future economic loss. Section 13 of the CLA requires me to determine the plaintiff’s most likely future circumstances but for the injury. In my opinion, but for the injury the plaintiff would have stayed with Active until 2018 undertaking the duties which he did until he received less work from March 2018. He then would have sought other similar tree work (including where necessary hands on work) from another company as a contractor supplemented with additional work when appropriate and available. He may have even returned to undertake work for Active after the downturn in work passed. There is no suggestion he had similar restrictions or injuries before the accident.

627. In my view, based on the medical evidence which I have preferred, the plaintiff will likely in due course improve significantly with physiotherapy and directed conditioning exercises. Mr Moffett believes he could earn up to $700 per week undertaking light bar work or similar light work not involving overhead work: see written submissions paragraph 30; T81.31. However, this appears to have been the highest amount he had received for bar work in a week in the past and the receipt of this sum or something very near it is not certain.

628. It is likely tree lopping rates would have increased somewhat since the plaintiff’s November 2013 rates: see T935.12 cf T418.27.

629. The plaintiff indicated in his evidence the range of jobs and tasks which he could do now: T394-398.

630. It is unclear how long the plaintiff will be further restricted as part of his injuries until he can undertake and complete the necessary treatment. At present he can undertake some bar type work and limited gardening and home maintenance duties. In my view, he has a clear present loss of earning capacity as he is currently limited in the jobs he can perform as a result of his injuries arising from the accident. In my view, in these uncertain circumstances the award of a buffer for loss of future earning capacity is warranted: Penrith City Council v Parks [2004] NSWCA 201 at [5]; Dal vChol [2018] NSWCA 219 at [18] and [142]. The precise calculation of any loss cannot occur. Based on a period of loss of future earning capacity of about 1-2 years with a degree of uncertainty taken into account as to the complete success of the treatment, I would allow the sum of $25,000. This takes into account the plaintiff’s recovery from Q fever, the improving Covid 19 position for bar work in clubs, a period for transitioning into tree or heavier garden work after his recovery following physiotherapy treatment, the lower pay for bar type work in the interim, the prospect of having difficulties obtaining the work, the possibility of higher paid work with a more demanding schedule of work following recovery and the plaintiff’s earning history prior to his injury which I have set out above.

626. Again, some of the likely work will be contractor work. I therefore only allow a buffer of $1,250 for loss of future superannuation benefits

Summary of damages

632. Accordingly, the damages I would have awarded the plaintiff if he and Mr Robin were not a “worker” or “deemed worker” are as follows:

Heads of Damage	Amount
Non-economic loss	$17,000.00
Past out of pocket expenses	$3,313.80
Future out of pocket expenses	$3,250.00
Attendant care services claim/commercial services claim	$0.00
Past economic loss	$15,000.00
Future economic loss	$25,000.00
Future loss superannuation	$1,250.00
Total	$64,813.80

Cross-claim of Active against WFI Insurance Ltd

633. As there is no liability of Active to the plaintiff under the CLA as the latter is a “worker” or “deemed worker” under the WCA and the WIM Act and the statutory pre-litigation requirements have not been complied with by the plaintiff, the cross-claim of Active against WFI Insurance does not arise and must be dismissed. Any entitlements of the plaintiff against Active arise under the WCA and the WIM Act. The cross-claim was only relevant if the CLA applied to the plaintiff’s claim against Active. The exclusion in clause 5.7 of the Lumley policy is applicable and the policy which is Exhibit XD1 does not respond. I accept paragraphs 4-6 of WFI’s written submissions dated 22 March 2021. Active was and remains entitled to an indemnity under its worker’s compensation insurance.

Determination

634. For the above reasons, I make the following orders:

1. The parties are to agree within 21 days short minutes of order reflecting the court’s reasons.

2. The parties are to attempt to agree orders relating to costs.

3. In the event that agreement cannot be reached, leave is granted to approach the Associate to Dicker SC DCJ to relist the matter on three business days’ notice.

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Decision last updated: 28 May 2021