Porter v Bonojero Pty Ltd

SUPREME COURT OF VICTORIA

COMMON LAW JURISDICTION

No. 1326 of 1997

TREVOR CLARENCE PORTER	Plaintiff
v
BONOJERO PTY LTD	Defendant

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JUDGE:	Eames J
WHERE HELD:	Warrnambool
DATES OF HEARING:	17-19, 22-26, 29-31 May, 7 June 2000
DATE OF JUDGMENT:	27 June 2000
CASE MAY BE CITED AS:	Porter v Bonojero Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 265

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Tort - negligence – master and servant – defective truck seat causing aggravation to back injury –- worker also injured by falling from truck cabin when alighting - top step missing – whether plaintiff entitled to bring common law proceedings against employer - whether either injury a transport accident and subject to Transport Accident Act 1986 – plaintiff paid compensation pursuant to South Australian legislation – whether receipt of compensation makes Accident Compensation Act 1985 inapplicable - Choice of law - whether torts arose in Victoria or South Australia – whether s.54(1) and s. 99(3) of Workers Rehabilitation and Compensation Act 1986 would preclude damages claim in South Australia – damages – contributory negligence – John Pfeiffer Pty Limited v Rogerson [2000] HCA 36.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Meldrum QC with Mr T. Tobin		Stringer Clark
For the Defendant	Mr D. Curtain QC with Mr R. Smith		Tress Cocks and Maddox

HIS HONOUR:

The plaintiff, Trevor Clarence Porter, brings a claim for damages for personal injuries suffered in two separate events in 1993 whilst employed by the defendant, Bonojero Pty Ltd (hereafter referred to as “Bonojero”), as a truck driver. The defendant is a company incorporated pursuant to the laws of the State of South Australia and traded as Mt Gambier Tyre and Brake Centre, which operated from Mt Gambier in South Australia.

The plaintiff was first employed by the defendant, on 7 April 1993 after approaching one of the managers of the defendant at its premises at Mt Gambier. The plaintiff was, and remained throughout his employment, a resident of Heywood, a small town in the Western District of Victoria, about 70 kilometres from Mt Gambier. The defendant was employed to transport wood chips to the wharf at Portland. He was to collect the wood chips from various forest locations in Victoria where a mobile chipper would be operating.

The vehicle supplied to the plaintiff was an “International” prime mover, a 1979 “S line” model which was owned by the defendant as one of a small fleet of trucks. When he commenced employment with the defendant he collected the truck from the defendant’s yard at Mt. Gambier. The truck was old and, I find, in a poor state of repair. It was the oldest truck in the fleet and was constantly requiring work, both by the plaintiff and by the mechanics in Mt Gambier. During his employment with the defendant - which lasted some four months - the truck was given defect notices on a number of occasions by relevant authorities, necessitating repair work to be done before it was deemed roadworthy.

Attached to the truck, for the collection and carriage of wood chips, was a high sided trailer of some 25 tons capacity. It was intended, and proved to be the case, that he would only perform this work in Victoria, although he would return the vehicle with which he was supplied to the defendant’s yard at Mt Gambier for servicing.

At first, the chipper was located at Hotspur (about 70 km from Portland), then the chipper moved to Greenwald, and then to Rennick. All of those locations are in Victoria. To get to the chipper the truck and trailer had to be driven off bitumen roads and on to dirt tracks, some of which were very rough. At the various locations the time spent driving on bush tracks would vary between five minutes at one location, to thirty minutes at others, for each trip. He would make about three or four return journeys to Portland from the chipper each day.

The plaintiff’s claims relate to two different events. In the first place he alleges that he was injured by virtue of a defect in the seat of the truck. The defective seat, he says, meant that he was exposed to excessive pressures on his spine, thus aggravating an existing degenerative problem with his lower back. When driving the truck carting woodchips the plaintiff said it “wasn’t real comfortable at all”, but it was particularly difficult on the bush roads. For ease of understanding, I will refer to this cause of action as “the seat injury”, although, as will be seen, it is common ground that the seat did not produce a new injury, so much as an aggravation of existing injuries. Although the defect of the seating was causing him continuing problems - to the point where the plaintiff was contemplating leaving Bonojero, and seeking work elsewhere - the plaintiff continued working until the event which represents the second cause of action. The second event I will call “the fall injury”.

As to the fall injury, the plaintiff alleges that apart from the defective seat, the truck was further deficient in that it was missing the top step to the driver’s cabin (being one of two steps, which were originally installed on the truck). On 4 August 1993, while at Portland, the plaintiff, when attempting to step frontwards out of the truck (that is, with his back to the cabin as he exited), lost his balance and fell to the ground, thereby causing a very severe injury to his lower back. The plaintiff has not worked since that day.

Before dealing with the circumstances of the two events, it is first necessary to provide some history of the plaintiff’s employment, and of his health, prior to his employment with Bonojero.

The medical history prior to employment with Bonojero

The plaintiff was born on 27 June 1960. He left school in 1975. The plaintiff married Jennifer Anne Porter in February 1980 and had a daughter, born 1982, and a son, born 1984.

The plaintiff had a long and productive work history. Throughout his working life, however, he suffered a series of extremely serious back injuries - mainly during the course of employment - with the result that by the time he commenced employment with Bonojero, although then only 33 years of age, his back bore the signs of severe degenerative damage, and he was vulnerable to further injury to his back, at any time.

In 1976, when aged 16, he fell off his motorbike after running into a dog, and he badly bruised his kidneys. He did not believe that he suffered any damage to his back at that time, but there was some evidence of injury to his head.

On 5 January 1979, whilst employed as a labourer at Thomas Borthwick Pty Ltd, he suffered severe pain in his back when lifting a bag of tripe. He was admitted to hospital and was placed in a full torso cast and was treated with traction and physiotherapy. He was off work for some four and half weeks and upon returning to work on light duties experienced low back pain, with pain radiating into both legs, and numbness on the outer side of his right thigh. He was laid off from work some two weeks after returning to his job. Mr Paul Kierce, an orthopaedic surgeon who treated him at the time (and subsequently) concluded that he had a weakness in his lower back and that he had strained a degenerate lumbo-sacral joint and would always have a weakness there. An x-ray taken at the time showed significant narrowing of the interbody space at L5-S1. Mr Kierce advised the plaintiff that if it was possible for him to get a light job then that would be ideal, although Mr Kierce felt that he was fit to resume any occupation. (On 2 December 1980 a worker’s compensation claim against Borthwicks was settled upon payment of $4,000 for weekly payments due to him. On 27 November 1985 common law proceedings brought against Thomas Borthwicks were settled by the signing of a deed of release which recited that $40,000 was paid pursuant to workers’ compensation entitlements and a further $5,000 in settlement of common law proceedings).

In 1980 the plaintiff was a passenger in a motor vehicle which was struck from behind and pushed into a drain. He hurt his neck and his ankle and suffered headaches, which recurred over a few months.

On 14 October 1989, whilst working for Wimmera-Mallee Bailers Pty Ltd as a truck driver, the plaintiff hurt his back, again, whilst pulling down on a rope to secure a tarpaulin over a load of hay. The rope slipped and he fell to the ground on his buttocks, and felt severe low back pain. He was admitted by his local doctor to the Heywood Hospital where he received traction, and was seen again by Mr Kierce on 6 December 1989, at which time he complained of severe pain to the right thigh, right shin and foot and was experiencing pins and needles. On 7 December 1989 Mr Kierce performed a laminectomy, observing at the time that the fifth lumbar nerve root was compressed by a massive herniation of the disc between L4 and L5. He decompressed the right fifth lumbar nerve root and the plaintiff was discharged from hospital on 21 December 1989.

Mr Kierce’s opinion in February 1990 was that the plaintiff had regained a good range of movement and no longer had leg pain. Mr Kierce stated that he was fit for work, providing that it did not involve the lifting of weights greater than 15 kilograms, prolonged bending, the driving of machinery which gave rise to vibrations, or the use of heavy jarring implements such as picks and shovels. In the decade between the injury in 1979 and the further injury in 1989 the plaintiff had often engaged in work driving heavy equipment which would have jarred his spine, and he also worked, on occasions, in situations which required bending and lifting. But after returning to work in 1990 the plaintiff was primarily employed as a truck driver and from September 1990 until February 1993 he was employed as a driver with the firm TMTS. He then transferred to Brian Smith, for whom he worked for seven weeks, before joining Bonojero.

The plaintiff had been with TMTS for 128 weeks when he left it in February 1993. He had been driving a truck to Melbourne from Millicent, about five times per week delivering toilet paper. He returned with a load of pulp on each trip. He had also been required to drive to and from Sydney for about twenty days per year. When driving the Sydney run, the plaintiff would make two return journeys per week. That driving was causing him pain in his back, and that fact, together with the fact that the job required him to be absent for long periods from his home in Heywood, led him to resign from TMTS. He took work with Brian Smith, carting wood chips between Tarpeena and Portland. The job with Smith, although not having any long-haul trips, had the disadvantage that it required that he live in Mt Gambier. The plaintiff then changed to Bonojero because it meant he could live at home with his family at Heywood during the week.

There is considerable dispute on the evidence as to the severity of the symptoms, and limitations, which the previous injuries had already caused to the plaintiff before he commenced work with Bonojero. The plaintiff said that whilst his work from 1979 until his employment with Bonojero in 1993 undoubtedly caused him varying degrees of pain and discomfit he did not miss work on account of his back condition. Although he was out of work from time to time over those years his unemployment was due to factors unconnected to his health (and despite his willingness to work) save for the limited periods of convalescence after his major injuries in 1979 and 1989.

The issues between the parties

The plaintiff’s action was originally set down for trial by jury, but counsel on both sides agreed that the many complex issues which were raised in the case made it appropriate that the case be heard by judge alone, and I made that order. Apart from disputing the allegations of negligence, and alleging contributory negligence (if negligence was proved) there was significant dispute by the defendant as to the extent of any damage and losses suffered by the plaintiff. Furthermore, the defendant submitted that there was no claim which the plaintiff could bring, in any event, because the torts (if they occurred) took place in South Australia, and by a combination of South Australian and Victorian law the plaintiff’s common law rights of action had been abrogated by statute.

It was agreed between the parties that the outcome of the jurisdictional arguments would depend, to a considerable degree, on findings of fact, and, accordingly, it was agreed by counsel that I should hear all of the evidence and resolve all questions of fact before determining the questions of law which arise in the case. It was apparent that the defence of the action was of interest to insurance bodies and compensation agencies in addition to Bonojero and it was regarded as something of a “test case”, with respect to the jurisdictional issues, which it raised.

As I will later note - when assessing damages - it is agreed on both sides that if the plaintiff makes out his case for negligence as to the seat injury, damages would not, then, exceed a modest sum of $5000. It may be thought unnecessary, therefore, for me to deal at length with the evidence on that issue, or to elaborate my reasons for making findings of fact, but the issues raised as to the seat injury are important as to questions of credit, generally. Accordingly, I will deal with the evidence in some detail.

The plaintiff’s claims as to negligence are confined, in each case, to an allegation that both as to the seat injury and the fall injury he suffered injury by virtue of the defendant’s failure to supply him with safe plant and equipment, namely, a safe and properly equipped truck.

The Seat Injury

The plaintiff alleges that during his employment with the defendant from April to August 1993 he was supplied with a truck which had defective seating, which caused him to suffer pain and aggravation of his back symptoms. The plaintiff said that the defects of the seat constantly placed stress on his back, but particularly so when the truck was driven on rough roads.

The plaintiff said that the pain which the inadequate seating caused became most pronounced in the last five weeks of his employment with Bonojero and was so severe that he was contemplating, he said, leaving the employment with Bonojero and seeking employment as a driver with another company, one which he knew would provide a truck with adequate seating for his purposes.

Counsel for the defendant submitted that I should conclude that there nothing wrong with the seat, and that the problems which the plaintiff was experiencing with his back would have been experienced with any vehicle, and were attributable to his pre-existing injuries and degenerative disease. Mr Curtain QC, senior counsel for the defendant, submitted that I should find that even before the fall injury the plaintiff had decided to abandon truck driving as an occupation, and that there was no additional injury or incident of negligence on the part of the defendant which played any part in that decision.

In the course of his evidence-in-chief the plaintiff identified the deficiencies in the seat as being constituted both by unusual movement of the seat and also a slope in the seat. He attributed the pain which he experienced in his back to both factors. The seat was operated by a compressor which pumped the seat up until it was full of air but it would cushion out a bit when you sat on it, the plaintiff said. Then, when you hit a bump, it would “bottom out”. The plaintiff said that there was movement in the seat, forward and backward, when changing gears.

The plaintiff was closely cross-examined as to the possible causes of the claimed movement forward and backward (and also sideways) of the seat. The plaintiff said that the seat was attached to a frame by bolts, and was missing some of the nuts to the four bolts which attached the seat to the frame on which it sat. The plaintiff said that the seat would tilt backwards and forwards every time he went to change gears and it was not stable side to side, either, because the seat was loose on the passenger side. The sideways movement was hazardous when alighting from the truck.

In the end, however, during cross-examination, the plaintiff said that it was not the movement of the seat which was causing pain in his back, but the fact that the seat sloped forward and to the left. The plaintiff said that was due to the fact that the seat had hardly any padding left, and the back of the seat was very worn, with bits missing out of it, and it had an old sheepskin, or lambswool, covering over the seat, with wood under the lambswool.

Mr Curtain, senior counsel for Bonojero, submitted that the allegations made by the plaintiff as to defects of the seat were without substance, and his explanations for movements in the seat were implausible and confused. The deficiencies in his evidence as to the nature and origin of the defects in the seat were attributable, Mr Curtain submitted, to the fact that the allegation of defects was a fabrication, and that the plaintiff’s back symptoms were due to the natural progression of his degenerative disease.

There was undoubtedly some confusion and uncertainty in the plaintiff’s evidence as to the particular defects, or the precise mechanism, which might have produced the unusual movement of the seat that he described. In part, that confusion and uncertainty was due to what I consider was some element of reconstruction in the account given by the plaintiff as to the likely cause of the movement in the seat. In saying that, I do not consider that there was any element of deliberate invention in the account given by the plaintiff, but it was apparent from his answers that at times he was casting his mind back by virtue of the challenging questions he was being asked, and was speculating as to the possible causes of the movement which he recalled. In effect, it seemed to me that it was only during cross examination, and after he was taken through various hypotheses as to the possible causes of movement in the seat, and the effect of that movement, that the plaintiff concluded that it was not the movement of the seat which caused him trouble, but the slope of the seat. That could, of course, support the contention of fabrication levelled by Mr Curtain, but I do not believe that is the explanation. Notwithstanding the very strong attacks made on his integrity, Mr Porter struck me as a man without artifice, and as a totally honest person, whose limited education and lack of guile did not always serve him well in the witness box.

The confusion or uncertainty in the plaintiff’s evidence was not entirely his fault. When being challenged to identify the nature and origin of the movement in the seat the plaintiff was not provided with a photograph or plan of the seat. In addressing questions as to the mechanism of the seat, its undercarriage and bracing points, the verbal descriptions of the seat and its components as articulated by the cross examiner and the plaintiff were at times confusing and unclear. It seemed to me that the plaintiff had not really turned his mind to the possible mechanism for the defects in the seat, and the precise impact of the deficiencies upon his back, until he was in the witness box. There was nothing at all improper in the questioning, but in my view the approach adopted exaggerated the plaintiff’s tendency to engage in reconstruction, when apparently invited to do so.

For what must have been tactical reasons, Mr Curtain did not invite the plaintiff to make use of a photograph or scale drawing of the seat so as to assist him in his answers and to ensure that he and the questioner were clear as to the type and features of seat which were being discussed.

It later became apparent that the defendant was in a position to have shown a photograph to the plaintiff of a seat which counsel for the defendant would later contend was similar to that which had been in the truck. Such a photograph was produced by junior counsel for the defendant to the witness Mr Hellyer, who was called on behalf of the defendant. The photograph was tendered as exhibit D12. Hellyer and, later, both Mr Sinclair and Mr Gamble – also defence witnesses – agreed that Exhibit D12 showed a seat very similar to the one which was on the truck. The plaintiff was never shown that photograph.

The plaintiff was, however shown a photograph of a seat (Exhibit Q19) during re-examination by his own counsel, and adopted that as being very similar to the seat which he had used. That photograph was one of a batch of photographs produced by the defendant in response to a call for production made to defence counsel by counsel for the plaintiff at the end of the plaintiff’s cross-examination. Counsel for the defendant initially objected to production of those photographs on grounds of privilege but subsequently they were tendered by Mr Meldrum and became Exhibit Q. Although the plaintiff had said that his seat was very similar to Q19 the structure of the base of the seat in that photograph was very different to that shown in D12 and later adopted by Hellyer, Gamble and Sinclair as being very similar to the seat in question. The plaintiff was never given the opportunity to compare the seats shown in the two photographs, and as I said, had no photograph in his hands, at all, when he was cross-examined. In these circumstances, I consider that the fact that the plaintiff engaged in a degree of reconstruction in his evidence of the seat is hardly surprising. Likewise, I consider I should be cautious before concluding that uncertainties, vagueness or apparent inconsistencies in the plaintiff’s explanations for the movement of the seat should be attributed to fabrication on his part.

Mr Curtain submitted that I should not draw any adverse conclusion against the defence, nor make allowance for the plaintiff’s evidence, on account of his failure to use photographs when cross examining the plaintiff. Mr Meldrum, he said, had photocopies of the photographs in Exhibit Q, which he had obtained from an FOI request to the South Australian WorkCover authority, and he could have used those in questioning the plaintiff in evidence in chief. Mr Curtain did not say whether had Mr Meldrum attempted to do so he would have objected to the use of the photocopies of photographs, which he later contended had been attached to a privileged report, but even if he would not, it was not in evidence in chief that the confusion arose; it was only in cross-examination that the deficiency in questioning without a photograph as a reference, and aide, became apparent.

The plaintiff’s contention as to the abnormality of the seat was supported by Mr David Evans, a friend and fellow resident of Heywood, who said he had travelled in the truck three times, and driven it twice, once for the journey from Mt Gambier to Heywood. He had also accompanied the plaintiff on one occasion when he collected wood chips and took them to Portland.

The evidence of David Evans, in my view, is entirely believable as to the fact that the seat, for whatever reason, was uncomfortable to sit on when driving the truck. He said the seat tilted forward and to the left, at a sharp angle (which counsel agreed he had demonstrated as being as much as 30%), and moved backwards and forwards. He said that there was a sheepskin cover on the seat and the seat was uncomfortable; you had to brace yourself to stay in the seat because of the slope. He attributed the slope of the seat to a fault with the frame underneath the seat, rather than to the fact of there being missing padding. He considered that so far as padding was concerned, the seat was alright, although it was missing a little bit of padding.

Mr Evans was invited to venture opinions as to what may have been the cause of the tilt and the uncomfortable nature of the seat. It appeared to me that in offering opinions on those matters, as invited, he was not seeking to assert that he had made a particular observation, himself, as to the frame, the bolts or any items which could have been the explanation for the defects in the seat. One is left, however, with his clear evidence that the uncomfortable nature of the seat, and a slope, was something which he noticed. It may well have been that in his recollection he exaggerated the angle of the slope, but if so then I do not consider that he did so deliberately. Save for having reservations about the degree of the slope in the seat, I believe his evidence.

The plaintiff’s wife, although stating that her husband had complained to her about the seat, and had had her write a note for the mechanic complaining about the seat, said that she had travelled in the truck only once, as a passenger, and had not observed the seat.

The plaintiff’s contention was disputed by three witnesses called by the defendant, two of whom, Dean Gamble and Robert Sinclair, said they had worked as mechanics for the defendant in 1993, and one, Peter Hellyer, who was a driver and part-time, but unqualified, mechanic, he said, at that time.

Peter Hellyer had been employed by the defendant as a driver for about ten years, having ceased employment in February 2000. He said that he would have driven the plaintiff’s truck in 1993, and said he never experienced any difficulty with the seat. His belief was that the company had disposed of the truck probably about five years ago, that is, approximately 1995. He had no specific recollection of any particular journey in the vehicle, nor could he say that he actually had driven it in 1993. At the furthest, if he had he driven it, he might have driven it 60 to 80 kilometres, perhaps, on any journey, he said. He could not recall a sheepskin cover on the seat. He conceded in cross-examination that the seat had “wear and tear” and a bit of its stitching was undone, but said its upholstery was “virtually intact”. The seat had some sideways movement, but not excessive, and not abnormal. He said “there was movement there, whether it was going up and down, it could go up and down at the same time as it be moving slightly sideways and you wouldn’t (sic) notice it, but not to the point where you’d sort of say, this is – that she was unusual”.

Dean Gamble was a mechanic who had been, and remained, in employment with the defendant since 1992. Mr Gamble, the junior mechanic, said that he would work on weekends if required to do so. The truck would be given a monthly general service and he would drive it for the purpose of moving it into the workshop. He would drive it at least once a week in that way. He said that in 1993 it had a “Cush-N-Aire” seat. When shown Exhibit D12 by counsel for the defendant he said that that seat was “very similar” to the seat in the truck. He did not think that there had been a lambswool seat cover on it. He said that the plaintiff had complained about pain in his back, but had not identified the seat as the cause of his complaints. He said that had the seat been broken then the mechanics would have fixed it.

Mr Robert Sinclair, the head mechanic, said that worked for Bonojero on a couple of occasions. He ceased to work for Bonojero at the end of 1993, having been there for 12 months on that occasion. He said that in 1993 he would have driven the vehicle for short distances for checking mechanical matters. He recalled no faults with the seat and did not believe that it would have had a pronounced lean or would rock forwards and backwards or move sideways. Had it been missing upholstery, then it would have been fixed. When shown exhibit D12 he said it was about the same sort of seat as had been in the vehicle.

I was not at all persuaded that Hellyer had been driving the truck over any distance, if at all, in 1993. He was not a mechanic with the company; although he saw himself as such, neither of the two qualified mechanics referred to him as being a mechanic on the job. His evidence was, for the most part, evidence of his assumption of what he would have observed had he driven the truck, and if it had the deficiencies identified by the plaintiff.

Having initially contended that there was nothing unusual in the movement of the seat because he would have noticed it if there had been, Hellyer later said that he actually recalled movements in the seat, and could describe the movement, with some precision. He said that the seat “possibly” would have had some sideways movement. All truck seats, he suggested, must have some “slight” sideways movement, both during driving and when stepping out of the seat. I doubt whether Hellyer actually had any recollection of the seat, but if he did then there must have been something unusual in the movements of the seat for him to retain an apparent precise recollection of it, when it was just one of a number of trucks with which he was associated. I did not find Hellyer to be an impressive witness. For whatever reason, he seemed anxious to support what he thought was the case for the defendant, a tendency that became more pronounced as his cross-examination progressed.

None of the three witnesses could actually recall the plaintiff. Gamble and Sinclair were both honest witnesses. Neither was prepared to say that they definitely did drive the truck in 1993. I consider it likely that one of them, at least, must have done so, but in my view the probability is that they would have driven it for a very short distance only, probably to move it into the service bay, and the deficiencies in the seat would not necessarily have become apparent to them. They regarded the truck as an old one, which had a lot of faults. The work of the yard on Saturdays, which was when this truck usually was worked on, was extremely busy. Notwithstanding the fact that, as I find, the plaintiff complained about the seat, I do not consider that either of the witnesses would have regarded that as a matter of importance or as causing them to take particular note at the time, or to now remember the deficiencies of the seat. (No records were kept of what work was done on the trucks or was requested by drivers to be done.)

The fact that three witnesses gave evidence that there was no defect in the seat in 1993, as opposed to the evidence of the plaintiff and Evans (who was a friend of the plaintiff), might suggest that the allegation has not been proved, but I was satisfied that the allegation was proved on the balance of probabilities. I did not find the evidence of the witnesses called by the defence persuasive, and other evidence lent weight to the plaintiff’s account.

The plaintiff said he was forever complaining about the seat. He said he complained both to Mr Sinclair and also to Robert Gabrielli, one of the owners of the business. He said Robert Gabrielli told him to see Sinclair and that Sinclair would work it out with Jack Gabrielli, who was effectively in charge of the business. The plaintiff said that Sinclair eventually said to him that he would speak to Jack Gabrielli. The plaintiff said he later had an angry confrontation with Sinclair, on one Saturday morning, demanding that something be done about the seat. He said that on that occasion, when Sinclair said he would contact Jack Gabrielli, the plaintiff insisted that he do it at once, so that he would know where he stood. He said that Sinclair went away and made a phone call and returned and said that Gabrielli was going to supply a new seat for the truck. The plaintiff said that was about four or five weeks before he fell from the truck and was injured. In fact, the truck seat was not altered and the plaintiff said that about two to three weeks before his injury he left a note, written by his wife, at his dictation, which said, “could you fix this fucking seat please”.

The plaintiff and his wife were accused of fabricating their evidence of complaints being made about the seating and of the demands, both by a written note and orally, that the seating be replaced. Mr Sinclair did not recall any such incidents but he acknowledged that drivers did leave notes in which they required repairs to be done, and that the work requested by such notes was not necessarily performed. He agreed that driver’s comfort was rated as the least urgent of work to be done on the many trucks that were brought into the busy work yard on a weekend. He agreed that he would engage in arguments about the need for the work that the drivers asserted had to be done, and that on occasions the language used both by the mechanics and by the drivers would be colourful and forceful.

The plaintiff’s account of these conversations, and of the note, has a distinct ring of truth. If this was a fabrication, as was alleged, the plaintiff identified three persons who were in a position to give evidence to contradict his accounts that there had been any such oral complaints or requests made by him. There was Sinclair (who, in my view, did not expressly discount that the plaintiff may have made such complaints) and there was Robert Gabrielli and Jack Gabrielli. Neither Gabrielli brother was called to give evidence.

The plaintiff would have been taking a considerable risk in making a false allegation in these circumstances. Were his account false those three witnesses, at least, were likely to give direct evidence in contradiction. In fact, during cross-examination, the plaintiff challenged counsel for the defendant to call Sinclair, and gave a convincing display of confidence that Sinclair, if called, would recall the complaints which he had made.

Furthermore, the account given by the plaintiff that Sinclair said that he would check with Jack Gabrielli about the seat and then returned advising that Gabrielli had authorised a replacement seat, was consistent with Sinclair’s evidence that there was a limitation on his authority to effect costly repairs. A replacement seat (which would have cost in the order of $1,000) was beyond his own authority to authorise. He agreed that there was no reason why the plaintiff would have known that he had such a limitation of authority - accordingly, if the plaintiff was inventing this conversation not only did he introduce a potential further witness against himself (namely, Jack Gabrielli) but he fortuitously advanced an account which happened to coincide with the nature of the authority and its limitations as between Robert Sinclair and his boss, Jack Gabrielli.

Sinclair said that had he spoken to Gabrielli about the seat he would have inspected it first and if Gabrielli had decided to replace the seat Sinclair would have first given him a report as to the condition of the seat. Given that I accept that Sinclair did tell the plaintiff of Jack Gabrielli’s agreement to replace the seat, then, whether or not Gabrielli had actually said that, it follows that Sinclair has forgotten these events. He was not asked to recall his dealings with the plaintiff until some six years after they took place, and given the busy nature of the work performed by the Bonojero mechanics it does not surprise me that he may have forgotten these events.

As to the fact that an abusive written note was left, I do not believe that such a note would be remarkable so far as Robert Sinclair was concerned, and if this was an invention on the part of the plaintiff then it was a lie advanced by himself, and corroborated by his wife, which ran the risk of being exposed if the defendant was able to establish that had a system for the retention of notes of complaints. In any event, having very carefully watched both the plaintiff and his wife under very rigorous cross-examination, I have no doubt that they are honest witnesses, and I have no doubt that such a note was written.

Furthermore, there is other evidence of the need for this seat to be replaced, by virtue of the fact that it undoubtedly was later replaced. Tendered before me were a batch of photographs that were produced by the defendant (Exhibit Q). No evidence was given as to when the photographs were taken but it was admitted that these were photographs of this truck. Bonojero Pty Ltd retained this truck until 1995, at which time it was sold to a company, Armandi Pty Ltd. Photographs taken of the truck with Armandi’s name on the door discloses that a new seat had been installed in the truck. It is true, as Mr Curtain correctly pointed out, that I could not conclude that the seat had been altered whilst it was still owned by Bonojero. But the fact that new seating had been placed on the truck is certainly not inconsistent with the plaintiff’s contention that there was a need for a new seat when he was using the truck, and that Jack Gabrielli had acknowledged that need.

Mr Curtain submitted that no adverse inference could be drawn from the fact that Jack Gabrielli did not give evidence. He submitted that there was no basis on which it could be inferred that a new seat was placed in the truck at the time when the truck was owned by Bonojero, let alone that that was done because Jack Gabrielli accepted that the seat was defective. In my opinion, however, his unexplained failure to give evidence enables me to more confidently act on the evidence of the plaintiff as to the seat being defective.

The fact that there was a fault in the seat is also inferentially confirmed by a question asked of the plaintiff by counsel for the defendant during cross-examination. Mr Curtain asked the following questions:

“I suggest to you that this seat was faulted by an RTA person, that’s right isn’t it? – By a policeman actually, he was on a pushbike.
And you have used that event to launch a claim because you knew that there was a criticism made of the seat? – No”
And you have constructed around that, a story that is totally a fabrication? – No”

A later question carefully narrowed the allegation to the assertion that “there was nothing wrong with the seat of the vehicle throughout the time you were employed”. Whilst I could not conclude that the seat had been replaced during the time the vehicle was owned by the defendant, it is open to me to conclude that the vehicle had been defected, on account of the seat, at some time when the truck was owned by the defendant, or, even if not at that time was subsequently defected at a time proximate to the time when the defendant owned the truck.

The plaintiff said that a few days before the fall injury the truck was given a defect notice for a suspension fault and also for the seat, and it was taken into the workshop, in mid week, for repairs to be effected to the seat, as well as the suspension. The witness, Gamble, said that there was no possibility that the RTA would have cleared the truck if that work had not been performed on the seat. That seems likely to be correct. It may well be that the plaintiff is mistaken in his belief that a defect notice for the seat was given at the time he recalls. On the other hand, the evidence all points to the fact that the seat required replacement, and that it was replaced at some time after the plaintiff’s injury. It also seems probable that, at some time whilst it was owned by the defendant, the truck was given such a defect notice with respect to the seat, an event which would not be sufficiently remarkable for the mechanics to now recall it, in my opinion.

I conclude, therefore, that there was a defect in the seat. The problem with it which aggravated the plaintiff’s back condition was that it sloped forward and to the side. Whether that was because it lacked padding or for some other reason I am unable to say, but the slope rendered the seat not safe plant and equipment, given that most, if not all, drivers, were likely to have some back problems and the seats were intended to function in a manner which minimised harm to the drivers.

I also conclude that there was movement in the seat which was greater than would have been the case for a seat in a newer truck. That movement was, no doubt, particularly noticeable to the plaintiff, due to the fragility of his back, and initially he attributed his back pain to that movement, in addition to the effect of the slope.

Whilst the movement in the truck seat may not have caused particular difficulty for other truck drivers (unless they had a back condition as serious as that of the plaintiff), the same could not be said about the slope of the seat. The slope in the seat posed an appreciable risk of aggravation of a back condition of any driver performing the duties the plaintiff did with this truck. Thus, the failure of the plaintiff to advise Bonojero of his back condition did not relieve Bonojero of responsibility to provide safe plant or equipment, nor override the fact that this truck seat did not represent safe plant and equipment.

On the medical evidence before me, if the seat did have a slope then it is probable that it would have aggravated the plaintiff’s back condition and produced the symptoms of which he complained. I conclude, therefore, that the slope in the seat in this case caused an aggravation of the plaintiff’s back condition, and the supply of the defective seat constituted negligence, in that it constituted unsafe plant and equipment with which he had been supplied by his employer.

The fall injury

On 4 August 1993 the plaintiff attended at the premises of Vic Roads at Portland to apply for the removal of a defect notice which had been placed on the truck a few days earlier whilst he was working at the wharf at Portland. The plaintiff had taken the truck to the defendant’s yard at Mt Gambier for repairs to be effected and returned to the Vic Roads office with a Roadworthy Certificate. On arriving at Vic Roads the plaintiff exited the truck, and in so doing fell to the ground onto his buttocks, experiencing severe pain. He continued to the Vic Roads office, had the defect notice removed and then drove back to Mt Gambier, in severe pain. Upon presenting the truck to his employer’s yard one of the mechanics drove him to the South Australian/Victorian border where he was dropped off, so as to hitch hike home to Heywood. This was the last day on which the plaintiff has worked. The evidence is undisputed that on that day he suffered a disc herniation at L5-S1.

Prior to the truck being acquired by Bonojero it had been owned by another operator, G.R. Watt. Evidence presented to me showed that at that time the truck was fitted with two steps to allow entry to and exit from the cabin via the driver’s seat in the prime mover. Both steps were aluminium steps attached to a diesel fuel tank that sat underneath the driver’s side cabin of the truck. The two hundred litre cylindrical tank had three steel straps encircling it and the lower aluminium step was attached to the outer two of those straps. The lower step was about 18 inches from the ground and was about half a metre long. The upper step, when the truck was with G.R. Watt, was attached only to the central strap, and was much smaller in dimensions than the lower step. It was approximately eight inches long by about six inches wide. Immediately above it there was a handrail on the outside of the cabin, so that a driver entering the cabin could place one foot on the lower step, one foot on the upper step and, holding onto the handrail with the left hand (and either the steering wheel or the door with the right hand), could gain entry to the truck. It was quite a steep climb. The plaintiff’s case is that at all times when he drove the truck there was no top step.

The plaintiff said that he repeatedly complained to Mr Sinclair about both the seat and missing step. As to the missing step, he said, Sinclair told him, “You don’t need a step, don't be a sook”. The plaintiff said on other occasions Sinclair told him that “we’ll get around to making one”. Sinclair did not recall such events.

Mr Curtain QC, for the defendant, submitted that even if it was the case that the step was missing (which was denied) the plaintiff’s account of his fall from the truck disclosed that the missing step played no part in that event.

The plaintiff said that on this day when he got out frontwards from the driver’s cabin: “I guess I just didn’t think”. He described what happened, as follows:

“I grabbed hold of the steering wheel because I felt myself slip but the seat tilted… towards the driver’s door and then my foot just slipped straight down on the tank, me heels hit the bottom of the step, a bit of the bottom of the step and I landed on my backside… on the bitumen outside Vic Roads office.”

The plaintiff said that over the years he had always got out frontwards from any truck, but on this truck that was quite difficult, so he used to exit backwards, i.e. facing the cabin of the truck. Whether going frontwards or backwards it was a long stretch down. He said that to get out backwards on this truck required him to sort of slide and hang on fairly tight to the steering wheel, and the door, and slide down until his feet hit the bottom step, but he said it was “not real hard” to do so.

In describing how to get out of the truck when going frontwards the plaintiff said (there is a transcription error at p.61 of the transcript where the word “barely” is inserted instead of the word “really”): “I would have to really hang onto the steering wheel and the door to get down, to actually try and get your heel on the bottom step.” He said that the calf of his leg would be on the diesel tank.

By contrast, he said it was quite easy to go out backwards: you just slide your feet down to the bottom step, hanging onto the steering wheel. He said he usually hung onto the door and the steering wheel and would put two feet on the bottom step when going out backwards. He said “I found it quite difficult to go out frontwards. It’s why I went back – used to go out backwards”.

Under cross-examination, the plaintiff confirmed that he had forgotten to get out backwards on this occasion, and had exited forwards because he was in a hurry. He grabbed hold of the steering wheel but did not think to take hold of the handgrip outside the cabin door with his right hand. He said he did not use the handrail because he was “not thinking on that day, flew out of the truck, didn’t even give it a thought. The seat tilted forward, I can remember trying to grab the steering wheel. I slipped, obviously my hand let go and that”. Although Mr Curtain strongly urged that this account gave no indication that the missing step was itself a factor, in my view, that is not so. The plaintiff was, I believe, trying to explain that in the process of going forward (even if his movement was unexpectedly accelerated), and, without thinking, he went to place his foot on the top step, and simply missed it. So much is clear from passages of his evidence as follows:

“Not thinking. I was thinking there was a top step there which I knew that there wasn’t – just while I was working for Frank. It was the easiest way to get out of the truck was frontwards and I sort of had to learn to get out backwards in that truck but I didn’t think on that day.”

Later he said:

“I was getting out of the truck but the seat tilted, I had to grab the steering wheel, I went to put my foot on the top step which was not there, it slid – my feet slid down, my heels hit the bottom step and I landed on the ground.”

He was asked what he meant by the top step not being there and he said:
“I suppose – supposedly there wasn’t, well, 99.99% of the trucks have got a top step.”

He was then asked in cross-examination:

“What you did was you went to put your right foot on a step?”
- “Yes, that wasn’t there.”

“That had never been there in the five months you had driven the truck?”
- “…that’s right.”

“If you had been careful about it, that would never have happened?”
- “…that’s correct.”

“It was you failing to observe that caused the accident, wasn’t it?”
- “… Yes.”

“Were you in a hurry?”
- “… Yes.”

“Why were you in a hurry?”
- “… I wanted to get back to go straight to load.”

In my view, the account of the plaintiff amounts to this – that because there was no top step he had to be careful to remember that was the case, and whereas in going out frontwards with other trucks no hazard would be occasioned, he forgot that this truck was minus a step and so when he was unbalanced in getting out of the truck, he put his foot out for the non-existent step.

In my view, if that account is accepted it constitutes negligence on the part of the defendant in failing to supply proper plant and equipment to the plaintiff for him to perform his job. The question of contributory negligence requires to be dealt with separately.

The defendant contended that there was a top step on the truck. Mr Robert Sinclair, Mr Hellyer and Mr Gamble, who were called as witnesses by the defendant, all said that in 1993 they would have worked on the truck and would have from time to time got into the truck and moved it short distances for the purpose of servicing or checking. They each expressed a belief that at all times the top step had been on the truck. They each were confounded by the fact that the plaintiff took a photograph of the truck sitting in the yard of the defendant, only a month or so after his accident, which clearly shows that there is no top step at that time.

The plaintiff called evidence from his wife and from David Evans to say that they had observed the truck whilst the plaintiff drove for the defendant, and it was missing the top step. Additionally, George McGrath swore that he had observed the truck to be missing a top step after the plaintiff’s accident when he observed the truck, located, he believed, at the defendant’s yard in Mt Gambier.

McGrath was not a particularly satisfactory witness, one whose bias towards the cause of the plaintiff, and antipathy to the proprietors for the defendant (for whom he had once worked) was all too apparent. His evidence was also somewhat confused at times. However, having given careful attention to his evidence I am satisfied that the confusion in parts of it was a tribute to his readiness to speak without thinking, rather than to dishonesty. He initially said that he had taken a photograph of the truck, which was missing the top step (Exhibit A1), whereas the plaintiff took that photograph. He seemed doubtful that he was, in fact, the photographer who had taken the photograph attributed to him by the plaintiff, namely, a photograph of the truck with two (“new”) mesh steps (Exhibit A2) which had been affixed at some time after the plaintiff’s injury. The explanation, I believe, is that, as he said, McGrath saw the truck when it was missing a step and, at a later time saw and photographed the truck when it had been fitted with mesh steps. He said he did make two separate observations, about two months apart. Eventually, he said that he did take the latter photograph, but thought it was in Gabrielli’s yard, at the time, whereas the evidence suggests that that was not where the truck was placed when the photograph was taken. (No direct evidence was called by either side as to where the truck was when that photo was taken.)

The plaintiff took the photograph of the truck without a step (Exhibit A1) approximately one month after he finished work. I conclude that the second photograph (Exhibit A2), showing different steps installed on the truck - they being mesh upper and lower steps - was taken by Mr McGrath. The truck then had the Bonojero name on the driver’s door. That photograph, having been taken some 12 months after the plaintiff’s injury, was taken at a time when Bonojero owned the truck. The truck, at that time, had different steps on the driver’s side, and had two steps, whereas when the plaintiff had photographed it about a month after his injury (and McGrath had also, at another time, likewise seen it) it had one aluminium, step only. The “new” steps, shown in McGrath’s photograph, were wire mesh steps, approximately half a metre long. Plainly someone, whilst the truck was in the ownership of Bonojero, for some reason, saw fit to install two “new” steps. (I emphasise the word “new” because although the steps were installed after the plaintiff’s injury they appear to be of poor, jerry-built, quality.)

Although McGrath was not a particularly impressive witness, both Mrs Porter and Evans impressed me as reliable witnesses. They gave express evidence that they observed that there was a missing step, and Evans spoke of the difficulty it caused him in gaining entry to the driver’s seat. It is not reasonably possible that they could be mistaken as to this. They are either telling the truth or are lying. Mr Curtain accused them of lying. I believe both witnesses were telling the truth. As confused as the evidence was of McGrath, and as anxious as he was to harm the cause of the defendant and to promote that of the plaintiff, the undeniable fact remains that the truck was photographed in the yard of the defendant at a time when it was owned by the defendant and when it was missing a top step. The plaintiff says that that was the condition of the truck at all times when he had it. At a later time two “new” steps have been installed on the truck. Photographs produced from the defendant also show the “new” steps, although those photographs, unlike the photograph taken by McGrath which shows Bonojero’s name on the door of the truck, show the name of the operator of the truck as Armandi Pty Ltd, the company which purchased the truck from Bonojero.

If there was an explanation for the fact that there was a missing step when the truck was photographed by the plaintiff in the defendant’s yard - one which is inconsistent with the plaintiff’s account that that was how the truck had been at all times when he had it - then the defendant did not produce such evidence, but merely relied upon the contentions of Hellyer, Sinclair and Gamble, who could offer no explanation (apart from venturing guesses) as to how it might have occurred that the truck was missing a top step when photographed in the defendant’s yard within a month or so of the plaintiff’s injury.

Mr Hellyer said that on all the occasions when he drove the truck it had its original, standard, steps on it. He said he “would have” driven the truck in 1993, if his own truck was not available (assuming it was being worked on) and if he had a job to do, such as picking up a trailer, or doing a small job, and if the S line truck was also in the yard. In fact, Mr Hellyer had no actual recollection of any trip, at all, which he had made in the truck in 1993. He said that it did not have a sheepskin cover on the seat when he drove it. The plaintiff’s evidence, and that of Evans, was that it did have such a cover when the plaintiff drove it.

Gamble, said he could not specifically recall driving this truck, but would have done so. He said he did not think that there had been a lambswool cover on the seat. His recollection of the top step was that it was not the aluminium type which came with the truck originally, but was what he called an “open step” which, he said, was like a mere frame for a step rather than the step itself. Such a frame for a step is shown in the photo taken by the plaintiff which showed that there was no top step in place where it had been originally designed to be, but there was a mere frame for a step which was at a place further towards the rear of the prime mover and was located so as to allow access to the load, rather than to the cabin. As to the two “new” mesh steps shown in photo Exhibit A2, Gamble had no recollection of such steps being on the truck. Such steps, he said, were of poor quality, and would not have been built for the truck by any of the defendant’s mechanics, and yet, plainly, the steps had been installed, by someone, while the truck was owned by Bonojero.

Mr Robert Sinclair, the head mechanic, said that the steps which he recalled being on the truck were those originally designed for the truck (Exhibit Q2). Thus, the top step as he remembered it, was not the “frame” which Gamble remembered.

The three witnesses from the defendant were giving evidence not of a positive inspection, or an observation, that there was not a step missing, but of a belief that the step would have been there on all occasions, because they would have noticed had it not been there. They were mechanics working in an extremely busy yard under considerable pressure. This was just one of very many trucks that would be brought into the yard from time to time. Although it was the only S line truck owned by the defendant it was one of three, four or, possibly, five trucks at that time (Mr Sinclair and Mr Gamble were not in agreement as to that) which were owned by the defendant, but they also performed work on many vehicles owned by other drivers and companies, in addition to the defendant’s own trucks. The commencement of work on the Bonojero vehicles was not given priority over work on privately owned trucks.

In contrast, the observations made by Jennifer Porter, the plaintiff’s wife, and by Mr Evans were made in circumstances where it is more likely that they would particularly note a defect such as a missing step, both because they knew that the plaintiff had an injured back and also because the truck was not one of many with which they were routinely confronted. I regarded both the plaintiff’s wife and Mr Evans as honest witnesses and their accounts as being more reliable than those given by Mr Sinclair and Mr Gamble.

I am satisfied that there was a missing step at the relevant time and that it was a cause of the plaintiff suffering the injury when he fell to the ground on 4 August 1993. The injury to the plaintiff was therefore caused by the negligence of the defendant.

Contributory Negligence – The seat Injury

Counsel for the defendant submitted that if the defendant was guilty of negligence as to the seat injury the plaintiff was guilty of contributory negligence. It was submitted that the plaintiff should have advised the defendant of his back condition, so that Bonojero was aware of the special need which he had, over and above the needs which any driver might have. It was also submitted that he could have himself tightened or attached nuts where they were missing from bolts on the seat; he could have supplied a cushion, or added padding so as to remove the slope on the seat; he should not have continued to drive the truck, knowing that the seat was damaging his back.

I have found that the defect in the seat, which caused the aggravation of symptoms to the plaintiff, was in the slope of the seat, not in the fact that it had unusual movement. That is how the plaintiff finally put his complaint. I can not say precisely how the slope was caused. There was no suggestion that missing or loose nuts caused the slope in the seat. Whether the cause was related to missing padding in the seat, or a fault in the frame, the seat required replacement, and I have held that that was recognised by Jack Gabrielli, and agreed to after the plaintiff had complained. Mr Curtain, without great enthusiasm for the contention, submitted that the plaintiff should not have driven the vehicle at all, or, at least, not whilst awaiting the replacement seat. In my view, having complained, and having eventually received a positive response to his complaint, the plaintiff had done all he could, and it would not be reasonable to expect that he should have quit his job.

I do not consider it likely that his employer might have moved more rapidly to replace the seat, or would have had a new seat fitted at the outset had the plaintiff told him of his back condition. All witnesses who were familiar with trucks said that it was well understood in the industry that truck drivers inevitably had bad backs on account of their job. Mr Gabrielli would have known that, but he made no inquiries of the plaintiff. Mr Sinclair, his chief mechanic accepted that issues related to the comfort of drivers were of the lowest priority in the workshop.

I will discuss the relevant principles of law as to contributory negligence in the next section of these reasons. Applying those principles I do not find that the plaintiff was guilty of contributory negligence with respect to the seat injury.

Contributory Negligence - the fall injury

If there was negligence on the part of the defendant with respect to the fall injury then, so it was submitted, the plaintiff was guilty of contributory negligence in exiting the cabin forwards rather than backwards; in failing to use the handrail; in using the seat which was unstable for support as he left the truck; because he did not look where he was placing his foot, and exited in a rush, and without due care for his own safety.

I quoted passages of the plaintiff’s evidence earlier in these reasons. The plaintiff did say that the first factor relevant to his fall was a tilting movement of the seat. I do not conclude that that movement, and any possibility of reducing it by the tightening of nuts (which, on the evidence, was not shown to have been the answer to the movement) was of significance in producing his injury. It was the attempt to place his foot on the missing step which, in my view, was the explanation for the accident. Plainly, the plaintiff did accept that his own decision to exit forwards - and being in a rush and not thinking about the missing step - contributed to his fall. Do those matters constitute contributory negligence? Mr Meldrum submitted that they do not, and that the sole cause of the injury was the failure to supply a top step and that insofar as the plaintiff himself played a part in the fall his own actions or omissions amounted merely to inadvertence, inattention or misjudgment: see McLean v Tedman.[1]
[1](1984) 155 CLR 306, at 315.

The relevant question is where mere thoughtlessness, inadvertence or forgetfulness ceases and where negligence begins: Davies v Adelaide Chemical & Fertilizer Co Ltd[2]. In evaluating the conduct of the plaintiff it is relevant to consider whether his inattention was bred from familiarity and repetition, and from his preoccupation with the task in hand. Those are factors that might produce mere temporary inadvertence, which was not incompatible with the conduct of a prudent and reasonable man: Sungravure Pty Ltd v Meani[3]. Those were certainly elements in the plaintiff’s conduct.
[2](1946) 74 CLR 541, at 545, per Latham CJ
[3](1964) 110 CLR 24, at 27, per Windeyer J.

The task of assessment of contributory negligence requires, too, consideration and analysis of the duties and responsibilities of the defendant. The prudent employer cannot fail to provide safe plant and equipment and then fail to take into account the possibility of inadvertent or negligent conduct of his employees[4]. In some cases, even if the conclusion reached is that the employee’s conduct did constitute contributory negligence, rather than mere inadvertence or inattention or misjudgment, the nature of the duty cast on an employer may reduce what would otherwise be the degree of negligence which would be attributed to the employee: Astley & Ors v Austrust Ltd[5]. In my opinion, this is such a case.
[4]McLean v Tedman, (1984) 155 CLR 306, at 311-312, per Mason, Wilson, Brennan and Dawson JJ.
[5](1999) 197 CLR 1, at [30], per Gleeson CJ, McHugh, Gummow and Hayne JJ.

At paragraph [73] of these reasons I quote the plaintiff’s evidence where he agreed to propositions put to him in cross-examination that it was his failure to remember that there was no top step which “caused the accident”. Those answers provide a good illustration of why I concluded that the plaintiff – contrary to the submission that he was a dishonest witness – was a person without guile or artifice. In my opinion, the answers should not be taken at face value, as constituting an admission of contributory negligence, but, instead, they reflect a classic illustration of conduct amounting primarily to mere inadvertence, inattention or misjudgment.

In my view, once it is accepted that a top step was not on the truck, and that a cause of the accident was that the plaintiff slipped when trying to place his foot on that (missing) step - having failed to turn his mind to the fact of the missing step - it is clear that the major factor in the fall was the failure of the defendant to supply safe plant and equipment.

However, even if the primary cause of the fall injury was absence of a top step, a number of witnesses said that it was safer to exit a truck (even one with a top step) backwards. That was the view of Hellyer, Gamble and Evans. It was clear, however, that exiting forwards was not unusual, and a prudent employer would have to allow for that fact. The plaintiff did not agree that is was safer to exit backwards, but he agreed that on this truck, given its missing step, it was certainly easier to exit in that way. His own practice with other trucks was to exit forwards. If it was safer on trucks which had a top step to exit backwards, was it contributory negligence on the part of the plaintiff to exit frontwards on this truck, with its absent step, when, had he thought of it, he would have exited backwards for the very reason that the top step was missing?

Having regard to all of the circumstances I consider that the plaintiff was himself guilty of contributory negligence with respect to the fall injury, but only to a modest degree, in that he did fail to take proper care for his own safety, by failing to exit backwards, and use the handrail, as would have been safer in any circumstances, even with a truck without a top step. I assess his contributory negligence at 10%.

Is a claim for damages available to the plaintiff? Where did the Tort occur?

Mr Curtain submitted that in the event that I held that there was negligence, I should also find that the causes of action arose in South Australia. He submitted, therefore, that if proceedings are to be brought and maintained in Victoria for a wrong which occurred outside Victoria the plaintiff must comply with the rule in Phillips v Eyre[6] as re-stated by the High Court in Breavington v Godleman[7]. The law, as then understood, meant that if the wrongdoing really occurred in South Australia and not Victoria the plaintiff must show, first, that if the wrong had occurred in Victoria a cause of action would have arisen in Victoria which would have enabled the plaintiff to enforce a civil liability against the defendant, and, secondly, that in South Australia the event would have given rise to civil liability in that State. This requirement was known as the double actionability rule.
[6](1870) LR6 QB1.
[7](1988) 169 CLR 41, at 110 per Brennan J.; see too McKain v R.W.Miller & Co Pty Ltd (1991) 174 CLR 1, Stevens v Head (1993) 176 CLR 433.

Mr Curtain submitted that as to the seat injury the first condition would not have been met because the seat injury was a transport accident under the law in Victoria, and proceedings for a transport accident could only be brought pursuant to the Transport Accident Act 1986. In this case the preconditions for the bringing of civil proceedings for a transport accident in Victoria had not been met. Counsel for the plaintiff conceded that is the case. As to the fall injury, Mr Curtain submitted, that would fail the second condition, because civil proceedings for the fall would have been denied under South Australian law, which precluded common law proceedings for negligence being taken against an employer, unless the injury arose in circumstances governed by s. 54(2) of the Workers Rehabilitation and Compensation Act 1986 (the terms of which I will later discuss).

Counsel for the plaintiff did not challenge the correctness of the statements of principle, but submitted that the wrong in both instances occurred in Victoria, and submitted, therefore, that the principles of Phillips v Eyre had no application.

After reserving my decision in this case - and when I was ready to hand down my judgement - the High Court on 21 June 2000 handed down the decision in John Pfeiffer Pty Limited v Rogerson[8] in which the Court re-examined the principles of Phillips v Eyre and the application of those proceedings in the modern context of the Australian federal system. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, in a joint judgment, and Kirby J in a separate judgment) held that the double actionability rule should no longer be applied. The Court held that in future where proceedings were taken in one State with respect to a tort which occurred in another State the substantive law to be applied by the court hearing the case should be that of the lex loci delicti, that is, the place of the commission of the tort. The procedural rules which the court should apply, however, were those of the court of the forum. Laws of the lex loci delecti which limited the kinds of damages which could be awarded, or the amount of damages that might be recovered, were to be treated as substantive issues and those laws were to be applied by the forum court.
[8][2000] HCA 36.

As to the double actionability test of Phillips v Eyre the joint judgment held, at 33:

“So far as concerns non-federal jurisdiction, the question is whether, in a federation, the common law should any longer require double actionability as a threshold test before the courts of one State or Territory will recognise and enforce obligations arising as a result of tortious acts or omissions in another State or Territory. Somewhat different considerations apply in context in which the applicable law is the lex loci delicti from those that arise if the lex fori were to be applied.
Quite apart from s 118 of the Constitution, it would be incongruous if a State or Territory were to allow a remedy for an act or omission in another State or Territory which did not constitute an actionable wrong under the laws of that latter State of Territory. But application of the lex loci delicti negates that possibility. Thus, the sole question that arises in relation to a double actionability rule in non-federal jurisdiction is whether the courts of a State of Territory should be obliged to give a remedy in accordance with the law of the State or Territory in which the relevant events occurred when, if the events had occurred in the law area of the forum, none would be given.”

The joint judgment held, at 38:

“Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an International tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.”

The issues raised in Pfeiffer v Rogerson would have a direct relevance in the present case only if it was the case that the torts with which I am concerned arose in South Australia. As will emerge, I have concluded that they did not, and for that reason I did not invite counsel to make further submission to me as to the effect of the new decision of the High Court.

I turn then to examine why I concluded that the torts arose in Victoria. Before doing so, however, I note that the issues raised before me, based on the law as it was then understood, as to the double actionability rule, did focus attention on the question whether the plaintiff could have maintained a common law action against the employer in South Australia, and that issue (with which Pfeiffer v Rogerson is not concerned) remains relevant in the context of some other submissions made to me by counsel for the defendant. Thus, I will deal with that issue in some depth, later, albeit for purposes other than the choice of law question.

Mr Curtain, for the defendant, submitted that an analysis of the circumstances upon which the claims for the two causes of action are based demonstrates that the wrong, in both cases, occurred in South Australia. The tort, in each instance - if it was held to have been committed at all - was committed in South Australia, he submitted. He pointed to the following matters.

(a) The contract of employment was entered in South Australia;

(b) The truck was registered, and provided to the plaintiff, in South Australia;

(c) The truck was brought to South Australia for its regular servicing, and it was on those occasions when the plaintiff alleges that the defects should have been remedied;

(d) The plaintiff’s alleged complaints about the defects were made at the defendant’s premises in South Australia.

Mr Curtain submitted that the negligence, whether by act or omission, occurred in South Australia, and that in those circumstances the fact that the damage may have arisen elsewhere does not matter, in those circumstances. Mr Curtain cited passages in Voth v Manildra Flour Mills Pty Ltd[9]. That was a case concerned with principles of forum non-conveniens, in a claim for damages arising from negligent advice given in Missouri, as a result of which damage was suffered in Australia. The High Court was concerned, therefore, with the principles which would govern the discretionary decision as to whether proceedings should be permitted to be brought in Australia, and the Court resolved that the appropriate test was whether, in all the circumstances, the Australian court was a clearly inappropriate forum for the determination of the case.
[9](1990) 171 CLR 538, at 569, per Mason CJ., Deane, Dawson and Gaudron JJ, and at 590, per Toohey J.

In Voth it was argued that one factor which made it clearly inappropriate to conduct the case in Australia was that the tort was a foreign tort, and that the acts and omissions complained of (as distinct from the damage that flowed therefrom) all arose in Missouri. Their Honours held, at 569, that the acts or omissions which gave rise to the cause of action occurred solely in Missouri.

As their Lordships in the Judicial Committee observed in Distillers Co (Biochemicals) Ltd v Thompson[10], it is not always an easy task to determine where wrongdoing took place. Their Lordships noted that the wrongdoing might take place at one location but, by mere chance, the damage resulting from that wrongdoing might occur within another jurisdiction.
[10][1971] AC 458, at 468-9.

Similar recognition of the difficulty, at times, in determining where an action arose, was given in Pfeiffer v Rogerson[11]. In the joint judgment their Honours held, at 31-33:

“Before turning to the question whether the common law choice of law rule should be the lex fori or lex loci delicti, it is necessary to recognise that the place of the tort may be ambiguous or diverse. Difficulty will arise in locating the tort when an action is brought, for example, for product liability and the product is made in State A, sold in State B and consumed or used by the plaintiff in State C. And the tort of libel may be committed in many States when a national publication publishes an article that defames a person.These difficulties may lead to litigants seeking to frame claims in contract rather than tort (as the NSW Compensation Act anticipated) or for breach of s 52 of the Trade Practices Act 1974 (Cth) or some similar provision. Characterising such actions may be difficult and may raise questions whether the private international law rules about tort or some other rules are to applied.
Moreover, even if the place of the tort can be located in a single jurisdiction, it will often enough be entirely fortuitous where the tort occurred. Why, so the argument goes, should the rights of Victorian residents injured when the car in which they are driven (by another Victorian) differ according to whether, if a driver falls asleep and the car runs off the road near the Victorian border, it does so south of Wodonga or north of Albury? But for every hard case that can be postulated if one form of universal rule is adopted, another equally hard case can be postulated if the opposite universal rule is adopted.”

[11][2000] HCA 36, at 31-32; and see Kirby J, at 60.

In the Distillers case the plaintiff purchased the drug thalidomide in England and consumed it in Australia, not having been warned of its danger to pregnant women. Their Lordships concluded that that was a case where the negligence was constituted by an alleged omission to warn of danger of the drug, the failure to warn, and also the damage, occurring in New South Wales.

In Voth the High Court also considered the question of an allegation of omission, namely, the failure to advise - which might have occurred in New South Wales - but on analysis of the facts of the case in Voth concluded[12] that the allegation was actually not of an omission but of a positive act, namely, negligent misstatement, which arose in England.
[12]Voth, supra, at 568.

In the present case, Mr Meldrum submitted that the wrongdoing, in both instances, occurred in Victoria, as did the damage. So far as the seat injury is concerned, the complaint is that the plaintiff was not provided with a safe seat for performing the work with the defendant. The plaintiff was at foreseeable risk of injury if safe plant and equipment was not supplied. The wrongdoing, thus, was an omission: the failure to supply safe equipment. Likewise, he submitted, the failure to supply safe equipment arose in Victoria with respect to the missing step.

The plaintiff did, indeed, put forward as part of his case the fact that he made many complaints to the defendant’s servants or agents at Mt Gambier, to the effect that the seat and the missing step needed attention. The particulars of negligence as to both injuries allege a failure to heed complaints. Furthermore, whilst in his evidence in chief the plaintiff identified two faults in the seat which caused him harm, he eventually contended that it was only one aspect as to the seat which constituted negligence which caused him injury, loss and damage. Initially, he said that one way the harm was being caused was in the movement of the seat, a movement backwards and forwards when he changed gears, and also when he drove over rough bush tracks. He did not identify the changing of gears on good bitumen roads as a problem, nor did he identify any problems associated with driving on South Australian roads. The second area of complaint about the seat - and the sole aspect as to which he maintained his complaint at the conclusion of cross examination - related not to the movement of the seat, but the slope of the seat. That problem must have applied not only in Victoria, and not only when driving on bush tracks, but also (albeit to a much lesser extent) when driving on South Australian roads.

The complaint of an omission to supply safe equipment with respect to the seat was sought to be confined to Victorian roads, by a late amendment to the statement of claim, whereby the plaintiff alleged – only - that the plaintiff “was required to drive the truck in the State of Victoria”. The complaint was sought, thereby, to be confined to a complaint of omission to supply safe equipment on roads in Victoria.

Insofar as the complaint as to the seat relates solely to the slope of the seat the evidence suggests that failure to supply a safe seat had application to driving on South Australian roads, too, and the wrongdoing could not be confined exclusively to events in Victoria, although the South Australian roads must have made a very small contribution to the aggravation of the plaintiff’s symptoms. The amendment seeks to limit the complaint to Victorian driving and, predominantly, it must have been driving in Victoria, which was the cause of any aggravation of the plaintiff’s condition. But there are other elements, too, which particularly locate the wrongdoing in Victoria.

The plaintiff was employed to cart wood chips solely in Victoria. There is some evidence that it was because the work was to be exclusively in Victoria that he was chosen, as a Victorian, to do the job. Save for some of the maintenance, all of the plaintiff’s working activities with the vehicle were conducted in Victoria, including refuelling.

The plaintiff was working five to five and a half days a week, but on weekends he would take the truck from Heywood to Mt Gambier for repairs to be done at the workshop of the defendant. He would drive the vehicle there on a Saturday, driving approximately 80 kilometres from Heywood to Mt Gambier. Of that journey about 20 kilometres was on South Australia roads. He would hitch-hike home or be driven home by his wife and return on Sunday evening to collect the truck for work the following day. The drive on South Australia roads was always on good bitumen roads. He would also attend at the Mt Gambier office, on occasion, to collect his pay or to collect payment of overtime. For his ordinary pay the plaintiff worked 40 hours a week but he also did overtime.

The plaintiff now suffers from a severe and crippling back injury, which at the age of 40 means that he will never work again.

There is no doubt that the plaintiff had a severe back disability prior to his employment with Bonojero, although he tended to understate the symptoms which he was experiencing, often describing his pre-1993 symptoms, merely, as an “occasional niggle”. Mr Curtain submitted that the understatement of his pre-1993 complaints was a deliberate and dishonest attempt to mislead the court. I do not accept that criticism of the plaintiff’s evidence. In his understated way the plaintiff did acknowledge the problems which he had prior to his employment with Bonojero. He agreed that work on a front end loader in 1981 had caused him to have good and bad days with pain, as did bulldozer work in 1986; in 1983 driving a bobcat was very hard on his back; when working as a car detailer in 1985, standing on cement floors, and bending low down to work on the cars, and to wash them, that caused him pain; driving a scraper in 1988 would make his back pretty sore on “bad days”. In 1991 when he was driving semi trailers for TMTS, mostly between Millicent and Melbourne - and about 20 weeks per year driving to and from Sydney - he was taking pain relief medication such as Codral Forte, Valium and Brufen on prescription. He agreed that he had told Dr Jarasius in December 1991 that he was having trouble putting his socks on in the morning, and was experiencing leg cramps and other significant symptoms of a serious back injury. He agreed that interstate driving knocked him around a bit and was in pain on occasions when driving.

It is inevitable that he was experiencing pain and limitation of movement in his back before 1993. Mr Kierce agreed that there had been significant deterioration of the lumbo-sacral space between 1983 and 1988 and that the employment as a driver of vibrating plant contributed to that. The general surgeon, Mr Maling, also agreed that there had been evidence of disc degeneration at L5-S1 before August 1993, in addition to the other disc degeneration which had been caused by previous injuries.

Thus, before his injuries with Bonojero the plaintiff must have already suffered pain and restrictions on his enjoyment of life. He was, however, able to continue to work, and engaged in activities such as shooting and camping. He painted his own house, worked in his garden, performed maintenance on his own vehicle and his truck, and was capable of cutting wood. By way of contrast, his present situation is of a man crippled with back and leg pain and restrictions of movement.

The plaintiff has undergone painful treatment and procedures, including four caudal injections, numerous spinal injections, and a lumbar discography. The pain and limitations of movement experienced by the plaintiff is obvious to the observer. Soon after his injury in August 1993 he was admitted to the local hospital at Heywood and treated with morphine injections and that drug has become a constant part of his treatment. All medical practitioners agree that his complaints are not exaggerated. Whilst regular morphine injections assist in the relief of pain that medication carries its own adverse consequences. The plaintiff has become addicted to morphine, which led to his admission on one occasion to a drug and alcohol rehabilitation centre in Portland. The morphine injections remain a last choice option for him to relieve pain. Morphine causes him to vomit, on occasions, and makes him dizzy. He is embarrassed to be taking such a drug. He attempted, to wean himself from that drug by replacing it with others, but did not achieve the desired level of pain relief.

The plaintiff is unable to sleep easily, and takes rohypnol. He frequently is forced at night to walk in the streets nearby because of pain, but if no relief is obtained by that exercise he will ask his wife to inject him with morphine. Although his sexual relationship with his wife was undoubtedly affected to some extent by his back condition prior to his employment with Bonojero, I am satisfied that his present level of pain and discomfit has very substantially reduced his capacity for sexual intercourse, a matter which causes him distress both for himself and for the effect his injuries have had on his wife’s lifestyle. The plaintiff attends field shooting, duck shooting and pistol club activities both for himself and to follow the progress of his children. I am satisfied that he does so with great difficulty, being helped around the course by his son or friends and usually being in so much pain thereafter that he requires morphine injections. I accept the opinion of the general practitioner, Dr Jones, that despite the pain, that exercise and those activities are of importance for his overall morale.

His relationship with his children, and the extent to which he could interact with them before this accident, has been adversely affected. Whereas he had been a gentle, calm, man before this injury (his employer at TMTS described him as having been one of the happiest drivers in his fleet) he is now inclined to lose his temper and his wife said he sometimes gets depressed.

The consequences of his injuries for the plaintiff’s lifestyle are immense. He is restricted, to a considerable degree, in all activities requiring bending or lifting. He needs assistance, for example, to towel himself and to dress. His back causes him the greatest pain and difficulty but also his right leg and left leg are painful and his right leg has wasted significantly in a short period since the 1993 injury and operations. The wasting is a product of the nerve and muscle damage in his lower back. He now has pain in his knees as a consequence of his back injury. He walks with difficulty, using a stick, and occasionally falls. Observing him in court, it is obvious that he is in considerable and constant pain.

There is no doubt that before his employment with the defendant the plaintiff’s back was causing him pain and difficulty and he was at risk of a further major deterioration at any time, but I am satisfied that his present extent of debilitating pain and limitation of movement is primarily the outcome of the fall injury and the treatment that followed it. His condition causes him acute distress, for which he has sought psychological counselling.

Although counsel for the defendant submitted that the plaintiff deliberately understated his pre-1993 pain and disability, and overstated the extent to which his present level pain and disability followed the injuries with Bonojero, I consider that the plaintiff’s assessment of the relative contribution of the pre and post 1993 injuries to his levels of pain and discomfit is reliable. In my view, the fact that the plaintiff tended to downplay what must have been the pain and discomfit which he experienced before 1993 is a tribute to the fact that he is a stoic individual, in my view. Indeed, he also tended to understate the acute pain and discomfit which he must have experienced after the 1993 injury. Mr Curtain placed great reliance on the fact that many of the complaints he now makes were made by him also to Dr Jarasius in 1991, but I agree with Professor Fraser, whose assessment was that the similarity of complaints was more superficial than might appear. The seriousness of the injury in 1993 makes it inevitable that the degree of the incapacity and pain of those activities after 1993 would be very much more profound, as the plaintiff asserted.

The opinions as to the severity of the plaintiff’s injury in 1993, and its sequelae, as stated by the medical witnesses called on his behalf, were generally shared by two doctors who examined him for the defendant, and whose reports were tendered. Orthopaedic surgeon Mr Brian Davie, in his report of February 1999, described the plaintiff as being “very severely disabled”, and neurosurgeon Mr Geoffrey Klug, in his report of March 1999, noted very marked wasting of the right leg and minimal wasting to the right thigh with significant weakness on flexion of the right foot and toes. He described the injury of August 1993 as “serious”. Neither doctor expressed any reservations as to the sincerity and honesty of the plaintiff’s account of his disabilities. Mr Klug said he did not doubt that the plaintiff “continues to suffer from severe pain in his back and right lower limb” and had genuine restriction in movement in the spine and right lower leg. He said his prognosis was poor and he would continue to suffer a chronic pain disorder.

In my view, whilst due allowance must be made for the fact that the plaintiff must inevitably have experienced increasing pain and discomfit in his back and right leg even if he had not been injured with Bonojero, the damages for pain and suffering and loss of enjoyment of life with respect to the fall injury must be substantial, so as to reflect the severity of the consequences of his injury with the defendant. He has lived with those severe consequences for seven years and is now only 40 years old.

I assess damages under this heading, for the fall injury, at $150,000.

(B) Griffiths v Kerkemeyer damages

The plaintiff gains the undoubted support of his wife and also his mother in performing many activities of his normal life. The value of those services is claimed to date and for the future. The plaintiff is entitled to an award of damages representing the notional cost of gratuitously provided services: Van Gervan v Fenton[22].
[22](1992) 175 CLR 327.

The claim for past attendant care is $37,380, representing an hour per day at $15 per hour, from 4 August 1993 to the date of final submissions on 7 June 2000.

It is not disputed by the defendant that some services of this kind are properly allowable, but the quantum of the claim is challenged. Mr Curtain submitted that, on the evidence, there has not been an hour per day of attendant care to date, and that the claim for attendant care should be calculated on the net cost of provision of services. Both sides agree that the appropriate gross sum is $15 per hour. Counsel for the plaintiff submit that the plaintiff should recover the notional cost to himself if he was to pay for the services, and that would be the gross sum.

In my opinion, it is appropriate to use the gross figure of $15 per hour. As was held by the majority in Van Gervan v Fenton, it is the need for the services which gives rise to the plaintiff’s loss, and the market cost is ordinarily the reasonable basis for valuing the need for those services and the damages which should be paid. Mason CJ, Toohey and McHugh JJ concluded, at 339-340, that the market cost was what an agency would charge for the service, and that, in my opinion, would equate with the gross sum of $15 per hour, rather than the net sum of $10 per hour.

Counsel for the plaintiff submitted that the total sum for the period from 4 August 1993 to date of submissions, which he said was 2492 days, amounted to the sum of $37,380 for attendant care, at $15 per hour. That assumes that the need was constant at an hour per day in that period. Mr Tobin, junior counsel for the plaintiff, submitted that this claim was not overstated, because for periods of up to four weeks (in one instance) the need for attendant care was almost constant. Thus, an allowance of an hour a day is not unreasonable for the whole period, he submitted. I agree with that contention, save to the extent that since the current need is accepted to average only twenty minutes per day (as the plaintiff’s wife estimated it) then the services of an average of an hour a day must have reduced at some time in the past. I will make a discount for that fact, too.

I will allow $34,000 for past attendant care.

As to the future, it is accepted on both sides that a period of 20 minutes per day is the maximum that could be allowed. I consider that it is most unlikely that that level of need will reduce; it is far more likely to increase (although I make no allowance for any increase in that regard). In applying the multiplier of 1150.1 which is the multiplier to time of death the loss at $5 per day/$35 per week totals $40,253.50. Mr Curtain submitted that the multiplier for age 65 was more appropriate, but that does not seem to me to be so, given that there is no reasons why the plaintiff’s injuries should reduce his life expectancy, however, the total sum does need to be discounted for contingencies, such as the prospect that the plaintiff’s pre-existing back condition causing him to need attendant care in the future, in any event. I would allow a reduction of 15% for such contingencies and, accordingly, allow the claim for future services at $34,215.

(C) Other past expenses

There were a number of items that were agreed, but some matters were the subject of dispute. The plaintiff claimed the costs of treatment by Jenny Craig for weight loss. Counsel for the defendant submitted that this should be disallowed, because the plaintiff had been overweight long before he was employed by the defendant and also, he noted, Mr Kierce was of the opinion that Jenny Craig was an inappropriate, and, in the long term, ultimately ineffective, means of weight loss.

Although opinions were not unanimous among medical practitioners as to the value of weight loss (Professor Fraser being of opinion that being overweight did not increase the risk of disc damage) the consensus seemed to be that it would assist in alleviating symptoms, and Mr Kierce had himself advised the plaintiff as early as 1983 to lose weight. The fact that the plaintiff did not act on the advice until he did does not detract from the fact that it was reasonable to lose weight. His local doctor, Dr Jones, urged him to lose weight and the Jenny Craig course required a considerable commitment on the part of the plaintiff, involving a painful journey to Warrnambool for each session. The course worked for him.

The quantum of this claim was stated by Mr Tobin be $3000 to $4000. I will allow the sum of $3000.

The plaintiff is no longer able to cut wood for his own use. There is little doubt that adequate heating is of importance for the plaintiff’s condition, and I accept that an allowance should be made under this heading, but quantification of the claim was somewhat vague. Originally $600 per annum was claimed, but in their evidence Mr and Mrs Porter advanced a higher sum, being 20 metres per year at $60 per metre (it was not clear to me whether it was tons or metres which was the appropriate measure; both expressions were used in evidence). Mr Tobin advanced a claim at $45 per metre, ie. $900 per annum. Over six years and nine months to date that is approximately $6000, he said. Mrs Porter, however, said that they now also get wood delivered by the truck load, at a cost of $45 per metre. Whether those loads mean that less than 20 metres are purchased now from the more expensive source was not stated, but I will presume that to be the case.

Doing the best I can from the evidence, I will allow $5000 for past firewood.

The claim for future firewood had added to it a claim for maintenance, generally - for example, to allow for the fact that the plaintiff can no longer service his own vehicle.

Counsel for the defendant quantified the future loss for the firewood (alone) at $8,000 (being a 25% discount from the sum of $10,659 which had been calculated using the multiplier tables); the plaintiff’s counsel claimed $13,801 under these headings. The defendant’s figure made no allowance for other maintenance work, and assumed that the need for firewood stopped at age 65, which I consider an unreasonable assumption. I will allow a total of $11,500, and then, allowing for contingencies under this heading, apply a further reduction of 10%. The final figure, then, is $10,350.

(D) Future medical and like expenses

I was advised that the plaintiff would be required to meet all of his future medical and treatment expenses. In the last 12 months the WorkCover Corporation of South Australia has paid $6204 in medical and like expenses and $519 in reimbursement of travelling expenses. Counsel for the plaintiff submit that I should assume that the future rate of such expenses would remain constant. That sum is an average of $130 per week, and a claim is made for $149,513, being that average weekly sum by a multiplier of 1150.1 for whole of life. Dr Jones said that the present level of treatment and medication will remain much the same in the future.

The defendant’s counsel submit that a figure of $4000 per year would be reasonable under this heading, given that many of the items claimed in the past year are unlikely to recur. For example, the future role of Mr Maling was queried, but in my opinion he has played an important role with respect to monitoring the plaintiff’s morphine treatment and in providing procaine injections, and I expect his to be an ongoing role with the plaintiff. One category of claim, totalling $528, relates to four consultations with a psychologist. The plaintiff derived some benefit from those consultations but the evidence does not suggest that he is likely to have as many attendances in each succeeding year. Nonetheless, the possibility of depression was alluded to by Dr Jones and the possibility of psychological stress and the need for counselling or treatment could not be discounted.

The plaintiff over many years now has needed to maintain a very high level of medication and attendances on medical practitioners. It has not been shown that those attendances and costs of medication, or the extent of consultations, were unreasonable. Although the claim is high, and some of these items can not be shown to be recurring items (and a discount must be made with respect to them), a significant allowance must be made under this heading. I will allow $110 per week.

Applying that figure of $110 per week with a whole of life multiplier (which is appropriate, in my view) of 1150.1 the total under this heading is $126,511. Only a small reduction for contingencies would be appropriate here. I will allow a discount of 10%, producing a figure of $113,859, rounded up to $114,000.

(E) Past loss of earning capacity

The assessment of loss of earning capacity requires an assessment of the probable working life which was available to the plaintiff but for the fall injury on 4 August 1993.

The defendant submits that the plaintiff’s working life was inevitably going to be severely curtailed even if he had not had the accident with the defendant. Mr Curtain submitted that, on the evidence, he was at risk of producing just such an injury as arose on 4 August 1993 by simple mechanisms of twisting or lifting. There was every prospect that he would have been totally incapacitated very soon in his working life, in any event. Even if there was not such a dramatic event, the gradual degeneration of his back would have continued to such an extent that the most he might have been expected to continue working was a further 10 years from 1993, Mr Curtain submitted.

There is no doubt that the plaintiff was at great risk of suffering a severe crippling injury to his back at any time. On the other hand, notwithstanding the obvious pain that truck driving must have caused him at times, especially interstate truck driving, he had managed to keep working. When he accepted the job with Bonojero he was already employed as a driver, by one Brian Smith, with whom he had been working for some seven weeks. Before that he had worked for 128 weeks with TMTS. Both jobs, especially the long distance interstate work with TMTS, caused him difficulty. He had already decided to leave Bonojero when he was injured. Mr Curtain submitted that he had decided to abandon truck driving altogether, but I reject that. I accept the plaintiff’s evidence that he had spoken to Mr Dohnt and had been told that a job would be coming up in a few weeks. Whilst working with Dohnt would have involved, once again, carting wood chips to Portland, the Dohnt trucks were in good condition, and he had occasionally used one of those trucks when working for Bonojero and had appreciated the difference the good vehicle made to his back condition. The plaintiff believed that work with the transport company, Kulari, was also open to him, and that would not have involved long hauls or driving on bush roads.

In a report written in January 1992, after examining the plaintiff, Mr Kierce opined that he could keep driving trucks indefinitely, but should not return to driving with Wimmera Mallee Bailers where he had been injured in 1989 and which involved heavy work and interstate long haul driving. He said that in 1992 he would not have recommended that the plaintiff did off-road driving, because of the effect of vibrations, but said that he could have managed as a truck driver on good roads. Furthermore, if the off-road work was minimal and he had a good seat then Mr Kierce said that there would not have been as much of a problem for him to do that driving. Mr Maling said that in his opinion at the time of his injury with Bonojero the plaintiff could have gone on driving a well-sprung truck, with a good seat, for reasonable hours and into the reasonably long term. He said the plaintiff could have worked eight hours a day for five days a week and said that truck driving was an acceptable job for the plaintiff’s condition. Professor Fraser also said that, but for this injury, in his opinion the plaintiff would have been able to continue work as a truck driver. He said that whilst the plaintiff was at risk of having developed the same symptoms even without the full injury he had a reasonable chance of working into the long term had he maintained a good level of fitness and exercised care.

In my opinion, the medical evidence all points to the fact that, with care, the plaintiff could have worked for the reasonably long term. I consider it unlikely that he would have still been able to drive trucks until the age of 65, but it is likely that he would have continued work until age 60. The plaintiff impressed me as a person who wanted to work, and who saw that as an important validation of his life. He would have put up with increasing pain. He may well have begun to miss work due to pain, in later years but he would have retained his jobs, in my opinion.

At the time of his injury I am satisfied that the base gross pay of the plaintiff was $580 per week, notwithstanding the contentions that the gross rate was less than that amount. Furthermore, I am satisfied that he regularly was paid overtime in cash payments. The quantification of overtime is difficult. The plaintiff suggested that he would earn between $100 and $200 per week in overtime, but he also agreed that when he had not actually worked his 40 hour week in one week then he would not be paid overtime for work done in the following week until he had first applied the hours of overtime towards the previous week’s work, so as to increase it to a notional 40 hours. The plaintiff did not pay tax on this income from overtime work, but I do not accept the contention of Mr Curtain that I should conclude that he would have come under the notice of the taxation authorities and would have lost the benefit of the payments that he had received. He does, however, have to suffer the consequence that his fraud on the revenue means that he is now unable to accurately quantify the overtime that he received.

The claim for overtime is far too vague to conclude that he would have earned overtime, week in and week out, over the past six and a half years, to even the minimum figure he suggested. Furthermore, the medical evidence suggests that whilst he could have continued truck driving had he not suffered the 1993 injury, those opinions assumed that he should have worked only a 40 hour week. Thus, whilst he may have continued to perform some overtime to date, and to have attempted to do so in the future, the combination of all the factors which I have identified suggests to me that the allowance, both for past and future overtime, should be modest.

I will allow $20 per week, gross, as overtime, bringing his total gross earnings at 4 August 1993 to $600 per week, a net of $454 per week until 15 November 1993, and then $461 after that date when the tax scales changed. The loss of earning capacity between 4 August 1993 and the date of judgement (which I will take to be 30 June 2000, as the parties have made calculations based on that date) should be assessed at that rate (and its net equivalent).

Mr Tobin submitted that I should assume that the plaintiff would have received increases in his wage as a truck driver over the past seven years, but no evidence was called as to any such likely increase in earnings. Mr Tobin submitted that I should use the figures applied under the South Australian WorkCover legislation, which provided that weekly payments were to be indexed against CPI increases. I have no evidence that those CPI increases reflect the wage increases that the plaintiff would have received. This is a question which should have been addressed by evidence, and it was not. I will not make allowance for any wage increase.

It is agreed between the parties that the period between 5 August 1993 to 30 June 2000 is 360 weeks. For the period 5 August 1993 to 14 November 1993, the period of 15 weeks, the net loss is $454 per week, a total of $6810. For the remaining 345 weeks the net loss is $461 per week, a total of $159,045. The total for the whole period amounts to $165,855.

(E) Loss of future earning capacity

The tax scales are to change on 1 July 2000, and although I will deliver my judgment a few days before that date I will apply the new rates. The weekly gross sum which I will apply is $600. That allows $20 per week gross for overtime which, for reasons earlier discussed, seems to me to also be the appropriate allowance for future overtime. The tax on $600 will be $120, producing a net of $480 per week.

Allowing the plaintiff $480 net per week until age 60, with a multiplier of 768.3, produces a figure of $368,784. That sum must be heavily discounted in the present case, making allowances not only for the usual contingencies, but having regard, also, for the particular vulnerability of the plaintiff’s back and the risks that posed for his uninterrupted working life. Had he not suffered the injury with Bonojero, then in his normal working life the plaintiff would have had to contend with the fact that should an employer have become aware of the condition of his back he may well have lost his job or been refused employment. He had experienced such a response as early as June 1980 when he worked for Softwoods Dartmoor Pty Ltd after he told them he had hurt his back. The company dismissed him. Thereafter he resolved to keep his back condition a secret.

Mr Curtain submitted that, as to the work future now, I should have regard for the prospects of the plaintiff obtaining work as a gunsmith. That is a remote prospect, in my view.

In my view it would be reasonable to reduce the above figure by one third to allow for contingencies, producing a sum of $245,856.

SUMMARY AS TO DAMAGES
The seat injury
Damages in the sum of $5000, there being no reduction for contributory negligence.
The fall injury
(a) Past losses:

Agreed medical and like expenses $104,356.16

Agreed items (bed etc) 7,073.00

Wood 5,000.00

Jenny Craig 3,000.00

Attendant Care 34,000.00

Loss of earnings to date 165,855.00

Fox v Wood component 37,473.67

Total $356,757.83 $356,757
(b) Future Losses

Medical and like expenses 114,000

Attendant Care 34,215

Provision of wood and maintenance 10,350

Loss of earning capacity 245,856

Pain and suffering 150,000

Total: 554,421 $554,421

Total: $911,178

Having concluded that the claim with respect to the fall injury should be reduced by 10% by virtue of the plaintiff’s contributory negligence, that sum reduces to $820,060.

I conclude, therefore that the total award of damages (omitting the cents) for both the fall and the seat injuries should be the sum of $825,060.

Counsel advised me that before judgment was entered they would agree as to the sum which should be deducted from the award with respect to sums owing to the WorkCover Corporation of South Australia, and I will seek the advice of counsel as to the appropriate sum that should be recorded in the judgment. I will also hear from counsel as to costs and any other consequential orders.

---

Agreed medical and like expenses	$104,356.16
Agreed items (bed etc)	7,073.00
Wood	5,000.00
Jenny Craig	3,000.00
Attendant Care	34,000.00
Loss of earnings to date	165,855.00
Fox v Wood component	37,473.67
Total	$356,757.83	$356,757

Medical and like expenses	114,000
Attendant Care	34,215
Provision of wood and maintenance	10,350
Loss of earning capacity	245,856
Pain and suffering	150,000
Total:	554,421	$554,421
Total:	$911,178

[2000] VSC 265

27 June 2000