Richard Gillam v Cumberland Council - [2021] NSWDC 538

District Court

New South Wales

Medium Neutral Citation: Richard Gillam v Cumberland Council [2021] NSWDC 538
Hearing dates: 24 and 25 February 2021
1, 2 and 3 March 2021
14 May 2021
Date of orders: 23 August 2021
Decision date: 23 August 2021
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Verdict for the Defendant

Catchwords:
PERSONAL INJURY –– Plaintiff sustained injury to his left wrist performing work for the Defendant as a general labourer using a high pressure hose – Where evidence of different versions recorded about how accident occurred – General caution to be exercised in considering such versions – Where Plaintiff had not established accident occurred in the manner contended – Court not satisfied that the relevant risk of harm materialised – Where the Plaintiff did not advance an alternate case
EVIDENCE –– Witness evidence – Where Plaintiff fails to question a witness it called in respect of circumstances surrounding injury – Where no inferences favourable drawn due to the Plaintiff’s failure to ask questions of a witness in chief or re-examination – Consideration of principles in Jones v Dunkel and Kuhl v Zurich Financial Services Australia Ltd
DAMAGES –– Non-economic loss – Past and Future out of Pocket Expenses – Future loss of earning capacity – Past and Future Domestic Assistance

Legislation Cited:
Civil Liability Act 2005 (NSW), ss 3, 5B, 5C, 5D, 5H, 13
Evidence Act 1995 (NSW), ss 36, 38
Workers Compensation Act 1987 (NSW), s 151Z

Cases Cited:
Alan Donald v Rail Corporation of New South Wales [2016] NSWSC 1897
Atkinson v Gameco(NSW) Pty Ltd [2005] NSWCA 338
Bassett v Cameron [2021] NSWSC 207
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Bourke v Victorian Work Cover Authority [1999] 1 VR 189
Commercial Union Assurance Company of Australia Ltd v Ferrcom (1991) 22 NSWLR 389
Davies v Whitehaven Coal Mining Limited (2020) 300 IR 76; [2020] NSWCA 219
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Fox v Wood (1981) 148 CLR 438
Jones v Dunkel (1959) 101 CLR 298.
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; (2011) 276 ALR 375
Mason v Demasi [2009] NSWCA 227
Payne v Parker [1976] 1 NSWLR 191
Pollard v BaulderstoneHornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99
Raimondo v State of South Australia (1979) 23 ALR 513
Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Shaw v Thomas [2010] NSWCA 169
Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 27
White v Benjamin [2015] NSWCA 75
Williams v Metcash Trading Ltd (2019) 286 IR 438; [2019] NSWCA 94

Category: Principal judgment
Parties: Richard Gillam (Plaintiff)
Cumberland Council (Defendant)
Representation:
Counsel:
J. Malouf (Plaintiff)
R. Gambi (Defendant
Solicitors:
Gerard Malouf & Partners (Plaintiff)
McCulloch & Buggy Lawyers (Defendant)

File Number(s): 2018/330912
Publication restriction: Nil

Judgment

By Amended Statement of Claim filed on 12 February 2020, the Plaintiff brings proceedings for personal injury damages following an accident on 22 June 2017 whilst he was employed by SCO Workforce Pty Ltd (SCO) performing work for the Defendant as a general labourer using a high pressure hose.

Agreed Facts

According to an agreed list of facts:

As at 22 June 2017, the Plaintiff was employed by SCO Workforce Pty Ltd.

As at 22 June 2017, the Plaintiff was sent by SCO Workforce Pty Ltd (SCO) to perform work for the Defendant on labour hire.

At all material times, the Defendant had the care, management and control of the system of work in which the Plaintiff worked.

On the evening of 22 June 2017, the Plaintiff injured his wrist whilst working for the Defendant.

An incident report book existed at the time of the Plaintiff’s injury.

It was usual practice for an injury suffered by an employee or labour hire worker to be recorded in the incident report book.

The hose used by the Plaintiff was replaced or was changed some time after the accident.

Dr. Fairfax and Mr. Cauduro (being experts qualified on behalf of the Defendant and Plaintiff respectively) did not inspect the exact hose used by the Plaintiff at the time of the alleged incident.

Neither the Defendant nor the Plaintiff is able to identify the actual trailer used by the Plaintiff on the night of his injury.

The Plaintiff received workers compensation for the injury he sustained whilst placed with the Defendant.

Prior to the Plaintiff’s injury, he was earning, on average, $1,100.00 net per week.

The Plaintiff’s past out of pocket expenses are agreed as follows $67,026.20. [1]

1. Exhibit A; T 15.46.

Witnesses

Apart from the Plaintiff himself evidence was also given in his case by Mr John Smith, Mr Jayden Mallin and Ms Loretta Moretti.
Mr Smith was a council worker performing general cleaning and labouring duties [2] with the Defendant and its predecessor (Auburn Council) for six years. It is not in issue that he was the person who had been left in charge on the work duties that the Plaintiff performed on the occasion that he had his accident.
2. T 170.14-.15.
Jayden Mallin also worked at Auburn Council in 2016 and early 2017 as a labourer doing driving and washing. At the time, he was employed by SCO who referred him to Auburn Council. [3] He gave evidence as to using a high pressure hose to clean bins, sidewalks and “what not”. [4]
3. T 158.36-.38.
4. T 158.26-.34.
The Defendant in its case called Jeff Roese (a former employee of Auburn Council) that was now retired. He had worked for the Defendant and its predecessor for 30 years and as at June 2017 was a waste and cleansing supervisor. [5] Mr Roese described his role as ensuring the staff had their schedules, their locations as to where they would go to at each time to do their work, make sure that their equipment was functional and well maintained, and ensured they undertook their work correctly. [6]
5. T 190.26-.30.
6. T 190.50-191.4.
For reasons that are elaborated below, I have reservations as to the reliability of the Plaintiff and Ms Moretti. It was also apparent that Mr Roese had a somewhat limited recollection of events in respect of which he was questioned. However, in assessing their evidence, I have declined to make global findings but instead considered their evidence consistent with what was said in Sangha v Baxter. [7]
7. (2009) 52 MVR 492; [2009] NSWCA 78, Basten JA at [155]-[156] p 526 (with whom Handley AJA agreed). See also SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56, Ward JA (with whom Macfarlan JA and Sackar J agreed) at [115].

Employment

The Plaintiff commenced employment with SCO in 2016, first carrying out work on behalf of Leichhardt Council that included whipper snippering, hedging and street cleaning. He subsequently commenced working with Auburn Council where his duties were basically cleaning of one description or another. [8] At some stage, he came to do some high pressure hose cleaning with Auburn Council. [9]
8. T 21.9-.35.
9. T 21.39-.43
In cross examination, the Plaintiff said when he was sent to work with Auburn Council he was told that he would be doing cleansing work but had no idea that it involved high pressure hosing. [10] He had never used a high pressure hose as part of his work duties. [11] He had however used a gurney or high pressure hose before and accepted that it worked on the same principle with pressure building up in the machine and a trigger being pulled to release high pressure water. [12] He stated that what he used in the past was “a little thing” and “a little toy.” [13] He said that he had received no instructions from his employer about using a high pressure hose. [14] Furthermore, when he went to Auburn Council he did not go with someone from his employer. [15] In short, he was simply sent to the Auburn depot and told that he was going to work there. [16]
10. T 61.40-62.14
11. T 62.16-.24.
12. T 62.35-.42.
13. T 62.45.
14. T 63.27-.29.
15. T 63.31-.35.
16. T 63.37-.39.
When the Plaintiff first arrived at the Auburn depot he stated that he was taken out and shown some of the places that he might have to work. This work was mostly at nights. [17]
17. T 64.1-.23.
In cross examination, the Plaintiff stated that when he first started working at the Auburn Depot he was not sure whether he was shown how to start up a heater. [18] The heater needed diesel fuel which he would have to check before he left to depot to make sure it was full and that it would last a shift. [19] He stated that whenever they went out he had to fill two red canisters of fuel. [20] He stated that a full water tank would probably not last the whole shift and it would have to be re-filled from designated places. [21]
18. T 67.14-.19
19. T 66.19-.36.
20. T 66.38-67.7.
21. T 66.4-.17.
Describing the high pressure hose cleaning that he performed, the Plaintiff stated that this involved two persons going into a vehicle and sometimes only one. [22] He stated that sometimes when they went to Lidcombe station they would take two vehicles (even though one would do) and they would concentrate on the lower end and then set up at the top end and they would park one of the vehicles and do the other side with just one vehicle. [23] When there were two persons he described that one would stay with the vehicle and one would use the hose and blow off the paving onto the road. The other person would keep an eye that everything was working and as to how much hose was left, checking the water in the fuel and whether there were any pedestrians that would be ushered through as well as providing signals such as “enough”, “pat” and “finish”. [24] He said the signals would be hand signals or yelling to signify “enough” and “we’ve run out of.” The Plaintiff stated that he was always looking back to see what the other person was doing and what was going on and if there were any pedestrians coming he would move to the side adding that “a lot of things could go wrong”. [25] He stated that he had to put out A frames stating “slippery when wet” and was instructed to do it where pedestrians are more likely to be. [26]
22. T 21.45-.50.
23. T 22.6-.9.
24. T 22.13-.22.
25. T 22.24-.29.
26. T 67.26-.43.
In further cross-examination, the Plaintiff stated that he could see a person untangling and fixing the hose if he was close enough otherwise the person would call or he would always be looking behind him and he would be aware of what was happening and if there was someone walking up. He said where he couldn’t see because the person was far away, the person would tell him to stop either verbally or by a hand signal. [27]
27. T 141.31-.49.
In re-examination, the Plaintiff stated that after he used the hose he walked depending on which direction he was in and if he was in the east end away from the vehicle he would bring the hose back to the western end and the second person would be winding it in. [28] The Plaintiff stated that he usually was with someone who would straighten the hose up so as to ensure that it was not messy. [29] He stated that he could see what they were doing down there and he was told to stop when they were sorting it out and then continued on. [30] The Plaintiff was asked whether he had ever told anyone at work that it was a trip hazard and he responded that he was always told to keep it off to the side so it’s not a trip hazard. [31]
28. T 137-35-.38.
29. T 140.1-.2.
30. T 140.7-.9.
31. T 140.37-.39.
The Plaintiff accepted that he did not need to be told on how to do his job and that it was a simple task. Nevertheless, he maintained that he needed a second person. It was put to him that the second person wasn’t there to be watching or supervising him but was there to keep an eye out for pedestrians so they wouldn’t slip or trip on the hose. He conceded that this was case adding that the second person was also there at night to prevent being exposed to an assault and to also let him know when the end of the hose is. [32]
32. T 73.49-74.7.
The Plaintiff acknowledged that in the period leading to 22 June 2017 he had been at the depot for several weeks doing high pressure hose work sufficient to understand what it entailed. [33]
33. T 63.44-.49.

Safe Work Method

The Safe Work Method Statement (SWMS) [34] relevant to the Plaintiff’s work was tendered in evidence and it noted the possible hazards in executing procedure as follows:
34. Exhibit J pp62- 74 (also MFI 4) and Exhibit 4 pp 17-29.

Slips/trips/fall

Strains/sprains

Cuts/abrasions, burns, eye injury

The key safety controls and associated procedures were noted as follows:

Use leather gloves, rubber gloves and wear goggles/face shield
Ensure hands are clear of pinch points/hot exhaust and high pressure water outlet
Unroll water hose, inspect cleaner and hose, start engine, depress lever on spray gun handle to activate water cleaner ensuring water sprayed away from people
Use correct manual handling techniques
The vehicles must not be driven onto the footpath to ensure the safety of all
ALL vehicles, (whilst operating high pressure washing unit) is to be PARKED and operations is to be carried out while the vehicle is STATIONARY
It is imperative that this is a 2 man operation whilst operating this unit at all times (emphasis added).

Position Description

The Plaintiff issued a subpoena seeking inter alia a copy of the contract relating to the Plaintiff’s performance of cleaning services on the date of accident. [35] Produced by the Defendant in answer to a subpoena served by the Plaintiff was a position description of an Operational Worker in the Cleansing Team position number SP ED-15. [36] The document noted as part of the essential criteria for the position was as follows:

Experience in street cleansing operations.
Experience in the safe operation of street cleaning plant and vehicles.
35. Exhibit J pp 38-45.
36. Exhibit J pp 46-51.

The principal responsibilities included:

Undertake all duties in such a manner that will enable the section to operate in a safe, efficient and effective manner.
Maintain a high standard of operational skill whilst operating any plant or equipment.

The schedule of duties included:

Ensure that the allocated items of plant are operated in a competent and safe manner at all times and that the requirements of the Motor Traffic Act are complied with.
To adhere to Council Policies and Procedures at all times.
Undertake all necessary training to fulfil the criteria of the position, both currently and in the future.

Worker WHS (work health and safety) responsibilities included:

Attend all relevant safety training and information sessions provided.

The document was meant to be signed by the Plaintiff as accurately reflecting his duties and responsibilities with a place for Mr Warwick Hay as Manager to sign. There is no evidence that he in fact did so. [37]

22 June 2017

37. Exhibit J p 51.

Instructions

Plaintiff

On 22 June 2017, the Plaintiff stated that he arrived in Auburn around 9:45pm and went up to the lunch room and discussed amongst other things what they would be doing for the night. He stated that he was told that he had to go out to Lidcombe with another worker, John Smith. He said that Mr Smith told him to go out and start the lower end of Lidcombe station as he was going to lock up. He said the duties that he was assigned was working with a high pressure hose which really involved just moving rubbish off the thick pavement. [38]
38. T 23.8-.17.
The Plaintiff stated that he knew where he had to go. [39] He described having done high pressure work previously about half a dozen times but only once at Lidcombe station. [40]
39. T 64.25-.28.
40. T 65.25-.43.
The Plaintiff stated that he also knew the vehicle that he had to take which depended on the availability of one of the two. [41] Before leaving the depot he knew that he had to ensure that the hose was fully wound up on the reel and that everything was fuelled and watered. [42] He said that he also checked the water [43] but didn’t check that the trigger of the nozzle was working properly. [44]
41. T 64.30-.35.
42. T 64.37-.42.
43. T 64.48-.49.
44. T 64.44-.46.
The Plaintiff conceded in cross-examination that when he was told by Mr Smith regarding the cleaning he knew it was supposed to be a two man job. [45] He stated that Mr Smith did not say words to the effect of “I’m just going to lock up, you go ahead and I’ll join you.” He stated that Mr Smith told him to start on the lower end and if he had time to do the eastern end. He conceded that he knew Mr Smith was coming and stated that he specifically wanted him to start on the western end if he had time (and Mr Smith was not there) to go to the eastern end. [46]

John Smith

45. T 68.13-.28.

46. T 68.42-.45.

On the day in question, Mr Smith stated that he received a call from his team leader (Sean Albon) stating that he was not coming in tonight and gave him instructions to give to the other workers. He told the Plaintiff that he was with him that night and that he was going to tell the other workers what they were doing. He then turned around and saw the Plaintiff was already driving out. [47] Mr Smith stated that he had told the Plaintiff that he was working at Lidcombe and they were going to “Gerni” the footpath at the train station. Although his hope was that the Plaintiff was to start at one end of the street and he was going to start at the other and they would work towards each other, [48] he did not tell the Plaintiff that. [49] Mr Smith conceded that they were going to take separate trailers. [50] Mr Smith marked the circle where he intended to park at the commencement of the night. [51] Exhibit G is reproduced below:
47. T 172.42-.46.
48. T 172.48-173.14.
49. T 178.11-.14
50. T 173.16-.17.
51. T 173.36-174.6. Exhibit G (red marking).
Mr Smith accepted that he did not tell the Plaintiff to “go off you’re on your own.” He admitted that he did not ask the Plaintiff to wait for him at all but he did say "I've just got to go tell the boys what they're doing.” [52] He accepted that he did not tell the Plaintiff to wait and did not say go either. [53] As far as he was concerned his expectation was that the Plaintiff would wait for him and the two of them would go together. [54]
52. T 177.33-.40.
53. T 178.13-.14.
54. T 177.50-178.7.

Arrival at Lidcombe Station

Plaintiff

The Plaintiff stated that he thereafter proceeded to Lidcombe station and parked the car down the western end where they always park. The vehicle that he drove was a trailer with a pressure cleaner and a large water container which was used to clean with and a heater and a compressor. [55] He parked at the station and he marked the location with an “X” on Exhibits D, E, F and G. [56] Exhibit D is reproduced below:
55. T 23.28-.31.
56. T 24.42-.50.
The Plaintiff said that he parked there because that’s where he was shown by Mr Smith. After he parked his car, he stated that he started the engine and did the western end heading the opposite way the vehicle was facing. [57] There he was hosing from the edge of the brickwork hosing out. He stated that the direction that he was working on Exhibit D was a distance approximately 15 to 20 metres away. He marked with an “S” and arrow on Exhibit D the direction that he started work. [58] He described it as not taking very long being approximately six to seven minutes as he was going downhill. [59] After he completed the western end, he stated that he went back to the vehicle pulled out the hosing and flapped it backwards over the side of the ute and went up the hill which he marked on Exhibit D with a pink arrow. He stated that he continued up the hill spraying off the walls as he was continually looking back to see if there were any pedestrians. At this stage, he indicated that he already had some signs out indicating that it was slippery when wet.
57. T 25.7-.17 also T 82.20-.31.
58. T 25.23-.32
59. T 25.34-.43.

In cross examination, the Plaintiff stated that when he was at the western end he considered that he was covering around 20 odd metres or so taking a portion to getting himself started and worked downwards until where he had to go and then walked back up the vehicle. Thereafter, he said that he took more hose of the reel because he knew he had to go up the eastern end. [60] He described the reel as free spooling and peeled off the hose that was there but thought there might be a little bit left on. He was not sure because it gets messy and it narrows.
60. T 69.25-.39.
Approaching the eastern end he stated that he peeled off more hose because he knew that he had a longer section up the other end. [61] He said that he knew he would need 50 metres in order to finish the job at the other end. [62] It was put to him that logically he would peel off all the hose off the reel in order to take it to where he had to finish his job. He responded stating “Well it all gets messy. It starts to twirl up and it becomes, it can become quite unmanageable and it’s also a trip hazard.” [63] He earlier stated that it was a fine line and he was worried about people’s safety as well as his own. [64] He accepted that he knew that he had to peel off the hose in such a way that it would not become a trip hazard [65] and accepted that’s what he did. [66] He reiterated that he pulled some hose off the reel and to his recollection there could have been a little bit left and then he started going up the hill towards the east. [67] The Plaintiff accepted that he would drop the tail gate of the trailer to make it easier for the hose to come off the reel and that generally when he would wind the hose back up he would do so in a clockwise direction. [68] He accepted that he would bring all the hose back down to the back of the ute and then wind it in. [69] By reference to Exhibit 1, the Plaintiff identified the setup of the equipment that was on the trailer that he took from the depot to Lidcombe station on the night of the accident as very similar. [70] He accepted that he flipped the hose over the reel and the trailer before he started going east so that it would have been on the left hand side of the trailer as depicted in Exhibit 1. [71] The Plaintiff replicated on Exhibit 2 where the hose was over the trailer and where he was pulling it out. [72] The intention was that he went east such that the hose would come from the coil section to allow him to finish the job. [73] Exhibit 2 is reproduced below:
61. T 70.32-.40.
62. T 70.42-.44.
63. T 70.46-.50.
64. T 70.4-.16.
65. T 70.21-.23.
66. T 70.25-.26.
67. T 83.29-84.10.
68. T 86.1-.8.
69. T 86.15-.16.
70. T 92.27-.32.
71. T 93.5-.24.
72. T 94.
73. T 94.37-95.6.

Accident

Plaintiff

The Plaintiff stated that he then went to the lift area and was aware that the hose goes another couple of metres. He proceeded to do the inside of the bins and blasted the area and he noticed that the hose was getting a little bit tight and he thought it was caught. He described pulling on the hose and was thrown forward on his left. He stated that he had the trigger gun in his right and took his hand off that and went straight over. [74]
74. T 26.41-.50.
In cross examination, the Plaintiff reiterated that he thought that there was still some hose left and he knew that the hose would go a bit further and pulled on it and it had taken him forward. [75] He conceded that he could not see the reel from where he was and made an assumption that there was more hose to come off the reel. [76]
75. T 74.9-.16.
76. . T 74.18-.40.
He described the hose as “a rubber hose” and “a blue one”. He stated that it has heat in it and he described it as acting like “a bit of bungy and its “pulled me forward and I have just landed on my left hand”. [77] He stated that when he was pulled forward he was facing the ute and was watching what was going on that way towards the ute. [78] Just prior to the injury, he stated that he felt that there was more to come and more slack to come. [79] At that point he stated he couldn’t see very much at all because of the distance described as well as there not being “huge lighting and good visuals”. However, he understood from his previous experience and knew that there was “more slack in it.” [80] He marked where he fell on Exhibit F being in a position close to where the bikes were and where the lift was. Exhibit F is reproduced below:
77. T 27.12-.15.
78. T 27.22-.24.
79. T 27.22-.33.
80. T 27.35-.40.
The Plaintiff described again that usually the hose would go for at least another two metres. [81]
81. T 28.4-.17.
The Plaintiff stated when he pulled back on the hose it was not very far however it was a quick thing and yanked on it and went forward and that’s why he described in his own mind he thought it was a recoil on it. [82] The Plaintiff stated that the accident happened the same way whether it was a recoil of one description or another as he was pulled forward. He accepted he asserted that it was a rather rubberised hose that had a degree of elasticity to it. [83] He denied making that up and denied that he tripped as stated in the other recorded histories discussed below. [84]
82. T 79.7-80.1.
83. T 80.18-.24.
84. T 80.30-.36.
The Plaintiff rejected the suggestion that he tripped on the hose that was on the ground. [85] He accepted that when he spoke to persons he might not have been “very specific”. [86]
85. T 71.1-.3.
86. T 71.10-.13.
The Plaintiff accepted that there was some lighting in the area where he was working [87] sufficient for him to be able to see where he was walking. [88] The Plaintiff stated that once he got to the end of the bike rack where the incident occurred, he did not have a particularly good view to see the hose all the way back at the trailer. [89] He was not sure if he was able to see the hose on the ground and whether it had been caught up or jammed on anything. [90] The Plaintiff conceded that he had prior to the accident had gone back to straighten some of the hosing because it gets kinks. He stated that he only went back once to untangle the hose. [91] He stated he wasn’t all that far away from it and he could see that there was a problem and it kinked and twisted. [92] He described that a person usually stays at the vehicle to keep an eye on the hose and that was that person’s purpose so he never really had that problem. [93] The Plaintiff stated that the second person would be pulling out the hose as he goes. [94]
87. T 95.15-.18.
88. T 95.20-.25.
89. T 95.27-.30.
90. T 95.32-.35.
91. T 96.4-.16.
92. T 96.21-.23.
93. T 97.1-.3.
94. T 97.15-.18.
The Plaintiff indicated that he had previously not encountered issues with the hose. When the second person was present there was possibly occasions where the other person had to tell him to stop or untangle the cord but he did not recall. [95] He acknowledged that on the particular occasion he untangled the hose he did not need anyone to tell him as he could see it visually. [96] He stated that he had not previously encountered issues with the hose although he never stayed at the vehicle. [97] When he went to untangle the hose on the occasion in question he said that he did not have a look to see how much hose was left as he was not thinking about it. [98] He rejected the suggestion that he went back to gauge how much hose was left about three times describing that as “ridiculous.” [99] To his knowledge it was only once where there was a little tangle that he could see and wasn’t far away and when there’s a lot in a group on the ground there would be a lot more issues. [100] It was accepted that he regularly looked behind to see how the hose was going and to check on pedestrians and anyone else coming along that might interfere with his work or himself. [101]
95. T 97.25-.30.
96. T 97.48-.49.
97. T 97.20-.23.
98. T 98.48-.50.
99. T 99.6-.7.
100. T 99.9-.12.
101. T 99.26-.40.
It was put to the Plaintiff that he was an experienced person using this equipment. He responded that he was experienced in blasting. [102] He said that he was not really experienced in removing the hose from the reel and it was always fed to him. [103]
102. T 99.48-.49.
103. T 100.1-.6.

Aftermath

Plaintiff

Following the accident, the Plaintiff said that he freaked out and then the pain started to increase as time went on. [104] He described then sitting on the benches near the bus terminal and calling Mr Smith. [105] The position was also marked with a square on Exhibit F. He described calling Mr Smith that he had an accident and dislocated his hand and he needed to be picked up and taken to the hospital. [106] He stated Mr Smith said that he would be there in 10 minutes. [107] At this point he understood that Mr Smith was still locking up the depot. [108] Thereafter, Mr Smith came to the location and packed up his equipment and the Plaintiff jumped in and was sitting in the car. Mr Smith grabbed the Plaintiff’s bag and ”stuff” that was in his ute and bought it up to him and then drove him to the hospital. He said that the ute that he was in was not the one which he had driven that day but was the one that Mr Smith was driving. [109]

John Smith

104. T 28.44-.46.

105. T 29.3-.8.

106. T 29.30-.35.

107. T 29.33-.38.

108. T 29.45-.48.

109. T 30.20-.24.

Mr Smith stated that after the Plaintiff took off from the depot he remembered seeing the other workers off to their jobs and then locking up the depot. [110] He said that he was in the middle of closing the gates when he got a phone call from the Plaintiff stating “I’ve fallen. I’ve broken my arm”. [111] At that point, he quickly locked the gates and went to see what was happening. He arrived, parked his vehicle and picked the Plaintiff up in his ute, packed up the Plaintiff’s ute and trailer, locked it up and took the Plaintiff to Auburn hospital. At the end of the night he stated that he told Mr Roese. [112]
110. T 174.12-.16.
111. T 174.18-.22.
112. T 174.24-.38.
Mr Smith stated that when he arrived to Lidcombe station the Plaintiff was on the ground and he had to pick him up from a location opposite the pub on the corner. With an arrow he marked on Exhibit G, the location to which the Plaintiff was positioned. [113] That was at a point to the west of where the Plaintiff marked with an X that the Plaintiff parked his vehicle. [114] At that point, he described that the hose was out but not fully out. [115] He stated that the hose was right up next to the Plaintiff at the location where he found him. [116] He conceded that he was still lying on the section of the pavement although he was expected to be working and then at that point he didn’t think he even started that section. The ground was not wet and he thought he was just starting to unpack the equipment. [117] At that point he said that the Plaintiff had not put any signs out and he could not remember any wet process or anything nor could he recall turning off the boiler. [118] He stated that he packed up the Plaintiff’s equipment recalling “mainly rolling up the hose” and locking up the utility before taking him to the hospital. [119]

Hose

113. T 183.27-.31.

114. T 24.33-.40.

115. T 183.37-.42.

116. T 183.44-.47.

117. T 183.37-184.11.

118. T 184.9-.20.

119. T 184.19-.34.

The Defendant produced evidence that the trailer registered number TC26KC was supplied and delivered in December 2016 together with a 50 metre hose. [120] The Plaintiff tendered evidence that the hose on TC26KC was replaced on 30 August 2017. [121] Photos of that trailer appear in Exhibits 1 and 2. By reference to the subpoena issued by the Plaintiff and the production by it appears acknowledged by the Defendant that the relevant trailer was that used by the Plaintiff at the time of the subject accident. [122] However, via Exhibit A, it was agreed between the parties that neither party is able to identify the actual trailer. Nonetheless, the Plaintiff’s evidence was that the trailer depicted could be the same one, looked very similar although he could not remember the registration number. [123]
120. Exhibit 4 p1-2.
121. Exhibit J p191-2.
122. Exhibit J p188.
123. T 92.17-.24 and T93.45-95.9.

Plaintiff’s Accounts

The Plaintiff conceded giving different versions about what had happened on the evening in question. [124] He acknowledged that up until recently his case has been that the hose reel was an automatic retractable one [125] as he thought that because it pulled him and that’s what had happened. [126]
124. T 71.14-.16.
125. T 71.18-.20.
126. T 71.32-.34.
The Plaintiff was questioned about his interactions with Mr Cauduro on 8 March 2019 and came to accept that they had what he described as a brief conversation. [127] It was put to the Plaintiff that he told Mr Cauduro that he was walking with a high-pressure hose around bends and up over stairs. The Plaintiff denied this stating “there were no stairs”. [128] The Plaintiff also maintained that there were no corners. [129]
127. T 81.13-.28.
128. T 81.30-.39.
129. T 81.41-.43.
The Plaintiff accepted that the description of the hose that he gave to Mr Cauduro was completely different to the hose that he in fact used on the night. [130] He accepted that he did not tell Mr Cauduro that it was a rubberised hose but rather it was “a blue stretchy hose.” He described the black hose that was on the trailer at the time of inspection on 14 October 2020 as a completely different hose which had no give in it. [131] He said that “these hoses were used like new hoses” and “they should have lasted for years”. [132] He accepted when he went out to look at the equipment with Mr Cauduro he told him that the pressure washer on view was different to the one that he had used in that the latter had a retractable hose reel (spring loaded) and not a wind hose reel. The Plaintiff stated that’s what he was thinking. [133] He said that he knew something pulled him back and pulled him forward and he was not an expert as he had only used it so many times and did not know a lot about it. [134]
130. T 71.36-.38.
131. T 71.40-.43
132. T 72.5-.22.
133. T 72.37-.50.
134. T 73.1-.7.
The discharge records of Auburn hospital following admission on 22 June 2017 recorded a history as follows:

“Works as pavement ?washer was setting up for work tonight when fell over onto hand”. [135]

When drawn to his attention, the Plaintiff denied this asserting that it was incorrectly recorded and that he was in a lot of pain. When put to him that was one explanation of what happened he described it as “complete and utter rubbish”. [136]

135. Exhibit J, p800 and T74.47-.49.

136. T 75.1-.3.

A Notification of Injury form in respect of the accident completed by Claire Nganmaya from SCO, recorded the history as follows:

“He stated he was pulling the water hos(e) when he got caught on it causing him to trip over and landing on his left side. He stated he put his left hand out to catch his fall. He reported immediate pain and noted his left hand was looking deformed.
He stated he was doing nightshift. The incident occurred on a road he was cleaning near Lidcombe train station. There was no witness to the incident. He stated he knew his supervisor was only 5 minutes away so he went and met him to get his injury looked at. ” [137] (Corrected)
137. Exhibit J, p35.

When drawn to his attention the Plaintiff stated that he does not remember saying that. He recalled being brief and did not go into the “whole thing” and was “never thinking about a Court case.” [138] The relevant Notification of Injury form notes that the employer was advised on 23 June 2017 at 8.30am. Shortly thereafter at 8.55am, the Plaintiff’s supervisor Mr Roese forwarded an email to “Wendy Adamson” at SCO stating:

“FYI, on Thursday night 22.6.2017 Richard Gillam slipped/tripped and injured his wrist, a crew member took Richard to Auburn Hospital for treatment (possibly broken) then he went home”. [139]
138. T 75.33-.40.
139. Exhibit J, p206.

On 23 June 2017, the Plaintiff saw his General Practitioner Dr Darshanee Mahaliyana. His clinical records recorded a history as follows:

“H/O (fall) in the railway station in Lidco(mbe)
Had a fall and landed on the left hand whe(n) he was pulling a hose
…”. [140] (Corrected)

A referral letter was written the same day to Dr David Stewart stating:

“Thank you for seeing Richard Gillam for an opinion and management. He sustained fracture of the left distal ulna when he had a fall yesterday at work. He missed a step when he was pulling a hose and landed on the left hand”. [141]

The Plaintiff denied giving this history to Dr Mahaliyana. He said that he was told that he had said that but there are no steps and he does not know where that came from. He denied missing a step. [142]

140. Exhibit J, p324.

141. Exhibit J, p446.

142. T 76.19-.25.

In a letter to Dr Mahaliyana dated 27 June 2017, Dr Stewart records the following history:

“Thanks for referring Richard a 52 year old right hand dominant council worker regarding the injury to his left wrist. He was using a hose last Thursday night when he turned and tripped and fell onto his outstretched left hand.
…”. [143]
143. Exhibit J, p580.

The Plaintiff stated that he was not exactly sure how it turned out or how it was interpreted that he was saying that, but he had no idea about the machinery he was talking about. He disagreed with the recorded statement as to how the accident occurred and said that he was using the hose and was pulled forward. [144] Dr Stewart’s clinical notes record a history and relevantly stated:

“Fall at work – Thursday night.
- while using hose.” [145]
144. T 75.6-.20.
145. Exhibit J, p810.

On 26 June 2017, Claire Nganmaya from SCO forwarded an email to GIO Workers Compensation Insurer stating:

“He is a co-worker of Jayden Mallin and does a similar job. He is also injured by similar equipment though he is unsure if he trips over the hose”. [146]
146. Exhibit J, p1212.

In cross-examination, the Plaintiff stated that he was not really sure what he said to her. [147]
147. T 76.27-.36.
On 17 October 2018, following a medico legal consultation with Dr Ronald Thomson (Musculoskeletal Medical Consultant) at the request of the Plaintiff’s solicitors, a history was recorded as follows:

“… He was using a gurney on the surface of a wall at the Lidcombe train station.
It seems as he approached the wall, the hose progressively lengthened from a spool on the rear of an adjacent vehicle and reached a point where the rubber hose became stretched and then rebounded and dragged the patient with it.
He then became entangled in the retracting hose and fell to the ground and sustained the injury noted”. [148]

The Plaintiff did not recall making these statements. He stated that he thought he mentioned the lift area as he does not clean walls and he was not sure what the doctor was talking about. [149]

148. Exhibit J, p210.

149. T 76.45-77.16.

On 11 December 2018, following a medico legal consultation with Mr Greg Anning (Consultant Psychologist) at the request of the Plaintiff’s solicitors a report dated 14 December 2018 was prepared. This recording a history as follows:

“Mr Gillam explained that the hose used for high-pressure clean is rubberised and therefore stretches. He stated that he reached the end of the hose and it pulled him back causing him to trip and come down heavily on his left hand”. [150]

The Plaintiff stated that he did not know whether he said that it was the end of the hose because if it was he would not be pulling on it so it did not make sense. [151]

150. Exhibit J, p215.

151. T 77.33-.48.

On 6 March 2019 following a medico legal consultation with Dr James Bodel (Orthopaedic Surgeon) who at the request of the Plaintiff’s solicitors, a history was recorded as follows:

“The accident occurred soon after starting. He had parked the vehicle and it was around a corner. He indicated that this really should have been a two-person task at that time but he pulled out the hose for the length that he needed and unfortunately the thing then recoiled on him, causing him to lose balance and fall. He tripped over the hose and fell on his outstretched left arm”. [152]

The Plaintiff accepted that he believed at the time that the hose recoiled believing that the hose was retractable as he got pulled forward. [153]

152. Exhibit J, p282.

153. T 78.1-79.5.

On 20 August 2019, the Plaintiff saw Ms Sanja Zeman (Occupational Therapist) qualified by the Defendant. In a report dated 24 September 2019 a history was recorded as follows:

Mr Richard Gillam discussed that at the time of the subject incident of 23.06.2012, his co-worker has not yet arrived at the work area. As such, he began to pull the hose independently. Whilst doing so the hose came to the end of its spool, overstretched, and pulled back (retracted) with force. [154]
154. Exhibit 4, p 431 at [6.4].

The Plaintiff rejected the suggestion that he had removed all the hose off the reel adding that he was not sure and thought that there was some left. [155]
155. T 100.39-.44.
It was put to the Plaintiff that he did not know if he tripped as he was looking at the hose or if he turned around and tripped because the hose was behind him or where he was on the pavement and hence he really did not know. The Plaintiff rejected this. [156] It was also put that the reason he had half a dozen different versions of the accident was because he did not know what happened. [157] He rejected this. It was put to him that this was an accident and it is no one’s fault except his own because he did not take care for his own safety. The Plaintiff rejected this stating that it was the Council’s fault for not having a second person there. [158]
156. T 104.27-.34.
157. T 104.36-.39.
158. T 104.49-105.1.

Other Incidents

John Smith

Mr Smith described his experience back with the Council in 2016-17 as not very good. [159] He stated that it was a very, very hard job to do as there was a lot of high pressure and the equipment was heavy. [160] When he was performing high pressure hose work, he described the pace as very fast because he had more than one town to do in a night. In the beginning, he said that they did one town and then it grew to three and then when the Council was merged they got nine more. [161]
159. T 170.17-.19.
160. T 170.21-.22.
161. T 172.19-.28.
He stated that he had been pulled back by the pressure hose before around about the beginning of the time when he started learning how to use it. [162]
162. T 170.25-.27.
At that point, he was a casual for five months and was placed straight on night shift full-time. [163] He stated that at the time he did not know, as most of them didn’t when they started using the hoses that “when the machine is running, there’s a lot of high-pressure built up in the hose such that when you get so far out the hose itself tightens on the reel and it just basically becomes like a bungee cord” and “retracts itself.” [164] He described it as moving backwards towards the machine. [165] He stated that it occurred five or six times before he “got the hint.” [166] He was not injured in the sense that he needed to get on the worker’s compensation but he did have a couple of falls which hurt him. [167] He described falling straight on his back. [168]
163. T 170.33-.34.
164. T 171.1-.8.
165. T 171.11-.12.
166. T 171.15-.19.
167. T 171.21-.23.
168. T 171.25-.26.
At the time, he stated that he told his boss Mr Roese and his team leader if he was on but other than that not really anyone else. [169] He stated that he was aware of others being injured in particular the Plaintiff and “Jayden”. [170] Following his injury, he stated that he would have to wait for his boss to come as he was illiterate and could not read and write. He described telling Mr Roese as far as he knows and then Mr Roese was the one that took care of the rest. He was aware that there was an incident book which was located in the medical room. [171]
169. T 171.31-.42.
170. T 171.47-172.2.
171. T 172.13-.17.
He stated that when he commenced working there no one gave him instructions about what work he would be doing as he was learning on the job. [172] He stated that he learnt from Sean Albon and Don Chang. [173] He said that they accompanied him on site to show him how to use the high pressure hose but he was also shown at the depot. [174]
172. T 175.33-.35.
173. T 175.37-.39.
174. T 176.4-.9.
He conceded that before the accident he had used a high pressure hose at Lidcombe station on the same side of where the accident happened. [175] Most of the time he said he was by himself and worked on nightshift but sometimes with somebody else. [176] He conceded that if time was a bit more of the essence there might be a second unit with a second worker. [177] On this occasion, he conceded from memory there were five workers on that shift. [178] He further conceded that the other workers went to different places for night time cleaning. [179] He stated that he had worked with the Plaintiff on night time shifts on previous occasions once or twice. [180] That was however at other places although he could not remember too well. [181]
175. T 176.11-.16.
176. T 176.16-.26.
177. T 176.28-.30.
178. T 176.32-.34.
179. T 176.43-177.11.
180. T 177.13-.15.
181. T 177.17-.24.
Mr Smith stated that he was familiar with the setup of the trailer containing the equipment to be used. He stated that on previous occasions when he performed high pressure hose cleaning at Lidcombe station on the southern end he would park the vehicle in a similar location to that where the Plaintiff had parked and indicated that he had parked his vehicle marked with an X on Exhibit D. [182] He said it was his usual practice to start towards the left of the vehicle as shown in that photograph peeling off as much as the hose as he needed to and then turn the engine on so the water pressure starts. [183] He stated that personally he always went as far as that hose could reach and then start walking up. When asked whether he would start at the top and effectively come down he stated that depended on who was with him on the night. [184] He was asked whether he could get the hose all the way to the lift and the bicycles if it was completely unwound and he stated he could get just past it if it was the full length but over the years because it keeps bursting the hose they would be dropped and connected with another connector. [185] He was not aware if this had been done as at 22 June 2017 and acknowledged that the hose had been changed from time to time. [186] He stated that he always remembered the hose was blue and it was a rigid hose not elastic and a solid unit. [187] He was asked whether it has any give when it’s extended and pulling on it. He stated that only when pressure is in it. [188] He accepted that the hose was cut reducing the length until they were ineffective and then they were replaced. [189]

Jayden Mallin

182. T 180.3-.49.

183. T 181.19-.20.

184. T 181.37-.38.

185. T 181.40-182.6.

186. T 182.10-.15.

187. T 182.20-.21.

188. T 182.23-.24.

189. T 182.26-.32.

Mr Mallin stated that when he was employed by SCO and before he was sent to Auburn Council he worked for Parramatta Council to do bin runs on day shifts but was not aware that he would be using a high pressure hose. Mr Mallin conceded that he had been working at Auburn for some time before occasioning injury and he initially was assigned labouring work and collecting bins. He said that SCO hired him to work for Auburn Council to do the bins and it wasn’t until his first day that Mr Roese told him that there was a night shift opportunity which involved working with a high pressure hose and he took him up on the offer.
Mr Mallin described the high pressure hose as being “pretty violent at times”. He stated that when you are unravelling it from the spool, if you give it any slack it will jerk on you. [190] He described that this happened to him “every time” and “many times”. He recalled on one occasion on 8 March 2017, it jerked on him and dislocated his shoulder. [191] He stated that it occurred in Berala in probably a sidewalk outside of the Woolworth’s. [192] At that point he called his team leader Sean who drove him to Auburn hospital. [193] He described needing surgery and a bolt in his shoulder followed by a couple months of rehab. [194] He remains with an 8cm scar on the right shoulder. [195]
190. T 158.43-.44.
191. T 159.1-.6.
192. T 159.8-.12.
193. T 159.14-.19.
194. T 159.21-.24.
195. T 159.35.
Subsequently, he stated that he was in contact with Jeff Roese about whether he could work on light duties or when he was better to come back to work. [196]
196. T 160.12-.16.
He stated that on the first occasion that he went out on night shift, Sean Albon accompanied him to show him what to do. [197] Mr Albon only came on one occasion but did on other occasions tell him what he had to do. [198] This included being shown how to use the high pressure hose and the equipment on the back of the trailer. [199]
197. T 162.12-.17.
198. T 162.19-.24.
199. T 162.26-.28.
Mr Mallin recalls doing cleaning duties at Lidcombe station maybe more than a dozen times. [200] Mr Mallin indicated that when he went to Lidcombe station it was his `practice to park as indicated by the marking of X on Exhibit D. [201] He described the vehicle that he took as one with a tray on it but did not always have a trailer so that the high pressure hose was directly mounted on the tray of the truck. [202] He stated that he didn’t believe that he ever took the trailer to Lidcombe. [203] He described the hose on the back of the reel as a manual wind up one [204] which was free spinning. [205] He stated that he would simply pull the hose off the back of the trailer in order to unwind the reel to get it to where you had to clean. [206] He described this as pretty easy to do. [207] He stated that whichever side of Lidcombe station he started on he would peel enough hose off the back of the reel. [208] He was asked when he had to go to the area where the lift and a bicycle rack was and whether he needed to peel off the back of the unit to get to where the bicycles were. He stated that he would have to move his truck to reach that area as the hose was not long enough. [209] He described moving the vehicle further to the right probably in the lane somewhere. He stated that he knew he had to wash the whole of the side walk all the way up and he would still have to move his truck to get to that part of the side walk but he did not know if he had to move it to get to the bikes. [210] He described this area as extending beyond the bicycle stand to where a person was sitting down on Exhibit F marked with a square. He stated that he did not remember what Sean told him and accepted that it was common sense to move the vehicle. [211]
200. T 162.30-.47.
201. T 162.49-163.5.
202. T 163.10-.15.
203. T 163.37-.40.
204. T 163.42-.46.
205. T 164.1-.2.
206. T 164.4-.6.
207. T 164.8-.9.
208. T 164.33-.35.
209. T 164.41-.47.
210. T 165.6-.11.
211. T 165.26-.43.
Mr Mallin stated that on occasions when he used the high pressure hose he was on his own and accepted that it was a difficult task to remove the hose off the reel as it can be pretty heavy. [212] He described a rigid high pressure hose that was not elasticised and it was not easy to take off the spool. [213] He accepted that it was not a garden variety hose but something that was pretty solid. [214] He accepted that as you pull it was heavy and it does not come off completely but you have to use your hands and pull it off the reel. [215] He stated that as he moved from one section of the pavement to another he could take all the hose off before he started moving or just carry the hose and let it peel off as he moved. [216] He accepted it was sometimes easier to unravel first before moving it but other times not so much. [217] So far as the hose jerking on him, he stated that it would pull itself back towards the spool. He stated that he didn’t know specifically why it happened however if you gave it any kind of slack and you didn’t keep it taut the whole way then it would pull itself back towards the truck. He described it as moving him and pulling him along with it. [218] He didn’t mention any of the incidents to SCO. [219] He accepted that when he was sent to Auburn Council he was basically left on his own as he understood it. [220] He did however report the incident of 8 March 2017 and claimed workers compensation but did not return to Auburn Council following the incident. [221]

Jeff Roese

212. T 165.45-.50.

213. T 166.1-.11.

214. T 166.18-.19.

215. T 166.21-.24.

216. T 166.26-.30.

217. T 166.32-.34.

218. T 167.10-.11.

219. T 167.16-.18.

220. T 167.20-.22.

221. T 167.24-.32.

Mr Roese could not recall the Plaintiff as a person from whom he had responsibility. [222]
222. T 190.43-.50.
However, with respect to workers under his supervision he stated that he would conduct meetings to make them aware of what he wanted and what he didn’t want and basically supervise their works. [223] Although he worked during the day time he accepted that there was a night time cleansing team that used to go out in the evenings. [224] He stated that he communicated with the night time workers early in the morning when they were coming back to the depot and he would tell them and the team leader what he wanted. Alternatively, he would send the team leader a text message throughout the day so that he was aware of what he would get done that particular evening. [225] Mr Roese stated that on the occasions that he would meet up with the team leader or some workers at 5.30 in the morning he did not recall discussions about any issues relating to high pressure hoses that were on the back of trailers used for cleaning. [226]
223. T 190.47-191.4.
224. T 191.6-.11.
225. T 191.13-.25.
226. T 191.33-.37.
Mr Roese said that he was familiar with high pressure hoses over the years. [227] He recalled that they had a grey blue colour but sometimes got it from a supplier and it could be a little different and it could be grey or blue. [228] He stated that he used both types of hoses and in his view there was no difference in their performance. He stated that he had never had any issue with them. The hose was quite easy to move around and roll on and off the reel. [229]
227. T 191.33-.43.
228. T 191.45-.47.
229. T 192.10.15.
Mr Roese said that he was not aware about an incident involving Mr Jayden Mallin and could not recall him. [230] He did not recall being told by someone about an incident involving a person who had fallen and injured their wrist during the course employment. [231] Mr Roese could not recall the document referred to at [51] that he sent on 23 June 2017 relating to the Plaintiff. [232]
230. T 192.24.25.
231. T 192.27-.29.
232. Exhibit J, p206 and T 192.33-.34.
Mr Roese accepted that the trailer shown in Exhibit 1 was one of the two that was used by the Defendant in relation to high pressure cleaning. [233] It was also stated that there were two other vehicles used much larger ones that had the high pressure on the back of the tray itself rather than on a trailer. [234] He stated that he had used the equipment shown in Exhibit 1 prior to June 2017 from time to time and never encountered anything about the hose pulling back when he pulled on it. [235] He described the vehicle shown in Exhibit 3 as a side on view of that in Exhibit 1. [236]
233. T 194.11-.13.
234. T 194.15-.17.
235. T 195.1-.3.
236. T 195.5-.23.
Mr Roese stated that he left Cumberland Council in November 2017 and did not recall when the Council purchased the two trailers nor whether there had been any changes made to the equipment on the back of the trailers for use of the high pressure hosing. [237] He stated that the system of work for the time that the trailers were purchased up until the time he left was relatively the same. [238]
237. T 195.28-.35.
238. T 195.37-.40.
In cross examination, Mr Roese conceded that in addition to the function he earlier described, he also had responsibility to consider the health safety and wellbeing of his workers at the time. [239] He acknowledged that included not only employees but also labour hire workers working at the Council. [240] He accepted the Council considered the health safety and wellbeing of workers to be of prime importance. [241] He also accepted that ensuring a safe system and place of work would be to record incidents and injuries that occurred in the workplace. [242] He accepted that as at June 2017 and March 2017 workers were required to report any injuries that they suffered and once reported there was an obligation on supervisors to take further steps. [243] He accepted to his understanding in March and in June 2017 there would have been an incident or injury book. [244] He accepted that he would have been incumbent on supervisors to share the outcome of the investigation with other people including managers to ensure everyone knew that the issue had been resolved. [245]
239. T 198.1-.8.
240. T 198.10-.12.
241. T 198.14-.16.
242. T 198.22-.25.
243. T 198.27-.42.
244. T 199.1-.15.
245. T 199.17-.30.
The Defendant in the course of cross examination conceded that there were no documents possessed by the Defendant as to the nature of an incident report statement or investigation report relating to the injury to Mr Jayden Mallin. [246]
246. T 197.5-.15.
Specifically, Mr Roese maintained having no recollection of Mr Jayden Mallin or memory of his injury. [247] He stated that he does not recall discussing with him his return to work after his injury. [248] Nor did he recall whether any incident report or investigation report was done although he accepted that it should have been based on what was said earlier. [249]
247. T 199.38-.46.
248. T 199.48-.50.
249. T 200.5-.13.
He also could not recall whether any injury report was made in relation to the Plaintiff. [250] Although he accepted that it should have been. [251] Mr Roese stated that he was sure that an investigation would have been conducted as it was a part of his job that he had to do. Nevertheless, he could not remember doing any reports in relation to either Mr Mallin or the Plaintiff.
250. T 200.19-.22.
251. T 200.24-.25.
The only complaint that he recalled prior to 22 June 2017 was when he was told there was a hole that needed repairing or something with a machine that wouldn’t start or wouldn’t run. [252] He accepted that was one of the methods of repairing a damaged part of the hose was to cut it and then re-join it depending on the quality of the hose. [253]
252. T 202.21-.25.
253. T 202.27-.35.
It was put to him that if Mr Smith complained to him prior to June 2017 that the hose used to jerk or pull people back towards the trailer, would he have taken urgent steps to remedy the problem and not let anyone use it until the issue was fixed. [254] He accepted this would be so.
254. T 202.37-.50.
Mr Roese’s attention was drawn to the SWMS. He accepted that it is imperative that two men be involved in operating the cleansing unit at all times due to the nature of the work. When asked what he meant by this, he responded:

A. Well, I mean, some of this equipment is used at different hours of the day. So, basically, there's other things in there, like people and there's pubs and clubs and stations and things like that. So there's other people around. Apart from that, just basically to assist and also to give a hand to - so the one person is not doing the cleaning all the time and they rotate their duties. [255]
255. T 204.45-.49.

It was put to him that one of them could watch the hose whilst the other person was actually using the gun. Mr Roese responded that it depended upon where they were actually at and the person wouldn’t be necessarily watching the hose. He stated that they could be watching the people or they could be moving signage or anything like that. He conceded however that watching of the hose was one of the things that could be done. [256] It was put to him that often it was the case in 2017 workers were often sent out alone to use the high pressure hose and he responded that was not his understanding as his understanding was that the two were together. [257] He accepted that if a person did work alone they would not be in compliance with the policies and procedures in place by the Council. [258]
256. T 205.1-.7.
257. T 205.10-.13.
258. T 205.15-.17.

Mr Roese conceded that he used the hose prior to retirement when there had been a spill of some and the other workers had finished and it was possible that it was not long before he retired being within a year. He stated that he did not recall the high pressure hose having a tendency to pull or jerk back and it had not happened to him and it had not happened to a lot of other people. He surmised that this was probably a bit of a human factor. [259]
259. T 205.33-.40.

Liability –Consideration

Relying on Alan Donald v Rail Corporation of New South Wales [260] (which in turn referred to TNT Australia Pty Ltd v Christie [261] ) and noting the relationship between the parties, the Plaintiff characterised the duty of care owed to him by the Defendant as analogous to that owed by an employer to an employee. [262] The Defendant did not dispute this. I am satisfied that this is so.
260. [2016] NSWSC 1897 at [80]
261. (2003) 65 NSWLR1; [2003] NSWCA 47 at [143].
262. Plaintiff’s written submissions at [6]-[8].
In opening, the Plaintiff’s case was described in the following terms:

,,,, that the defendant failed to provide him a safe system of work, which they were required to do. They sent the plaintiff out to perform work alone in an area where he wouldn't be able to see the hose reel. They failed to provide a two-man team to perform high-pressure hose cleaning - despite their own systems mandating that requirement. They also failed to do anything about the problematic high-pressure hose, about which they were on notice, that it had a capacity to retract and pull workers with it. [263]
263. T 12.41-.47.

The risk of harm identified by the Plaintiff was pleaded as “the risk of workers being injured as a result of being required to operate a hose which had insufficient reach was not within sight, without proper training or proper supervision and that may have been faulty or not properly maintained.”[264]
264. Amended Statement of Claim at [22].
However the breach of duty asserted by the Plaintiff was premised on an acceptance that during cleaning whilst seeking to extend the reach of the hose he pulled on it whilst it was charged resulting in it forcibly retracting. [265] The particulars of breach and the asserted precautions that a reasonable person in the Defendant’s position ought to have taken, were based on this account of the mechanism of the injury.
265. Plaintiff’s written submissions at [53].
In order to establish reasonable foreseeability it is not necessary to for the precise manner in which injuries were said to have been sustained to be reasonably foreseen. [266] Overall, while the Defendant argued otherwise I am prepared to accept that the risk of harm as identified by the Plaintiff was reasonably foreseeable for the purposes of s 5B(1)(a) of the Civil Liability Act 2002 (NSW) (the 2002 Act). I would do so accepting the evidence of Mr Mallin and Mr Smith as to their experiences operating high pressure hoses which I am satisfied were communicated to the Defendant as both indicated. That evidence was not challenged. Whatever Mr Roese’s personal experience was when questioned about the potential for the high pressure hose to pull up or jerk on the operator, he appeared to recognise the potential stating “we’re probably dealing with a bit of a human factor there.”^[267] At its highest, his evidence was as to an inability to recall the earlier reported incidents. The injury report book in respect of Mr Mallin’s accident was not produced. The Plaintiff sought an inference that any documents would not have assisted the Defendant’s case and I would proceed on this basis. The SWMS identified risk of injury and required inter alia two persons to operate the hose. The positon description a required an operator to have experience and undertake training.
266. Chapman v Hearse (1961) 106 CLR 112 at p120-121.
267. T 205.38-.39.
The Plaintiff also sought a Jones v Dunkel inference in relation to the failure of the Defendant to call Sean Albon and Warwick Hay. In respect to Mr Hay, there is no evidence as to his role in the events that followed beyond the matter referred to at [22]. In relation to Mr Albon, whilst he may well have been able to called by either party, the evidence indicates that he stood higher in the confidence of the Defendant and it would have been natural for it to call him. [268] Again, the inference sought by the Plaintiff is that he would not have assisted the Defendant’s case. In any event, Mr Mallin’s unchallenged evidence which I have accepted was that he reported the matter to Mr Albon who took him to hospital.
268. Payne v Parker [1976] 1 NSWLR 191 per Glass JA at p201-2.
Accepting that the risk of harm was foreseeable I am further satisfied that the specified risk of injury was not insignificant for the purposes of s 5B (1) (b) of the 2002 Act. Whilst s 5B(1)(b) imposes a more demanding standard than the common law it has been held to be as not by much. [269]
269. Shaw v Thomas [2010] NSWCA 169 at [44].
The Plaintiff is further required to establish that the risk of harm materialised such that within the terms of s 5B(c) of the 2002 Act “in the circumstances, a reasonable person in the Defendant’s positon would have taken those precautions.” Those precautions were specified by the Plaintiff as:
Trained, inducted and warned the Plaintiff;
Fixed the fault; and /or
Would have prevented workers from using the faulty equipment; and /or
Would have ensured there were two people performing the task of high pressure hose cleaning. [270]
270. Plaintiff’s written submissions at [70].
Any finding to this effect must be premised on an acceptance of the Plaintiff’s evidence as to the mechanism of his injury. So much appeared to be accepted by both parties. [271]
271. Plaintiff’s written submissions at [52]-[58] and Defendant’s written submissions at [7]-[44].
The Plaintiff’s evidence was clearly in conflict with that of Mr Smith. I did not find the Plaintiff to be a reliable witness. His evidence as to the mechanism of the injury was variable and appeared to be a reconstruction. This was particularly evident when he was cross examined as to the description of the pressure hose and reel recorded by Mr Cauduro following a discussion with him. The Plaintiff acknowledged that in referring to the hose he used on 22 July 2017 he indicated that that hose was different to the one viewed on inspection. Specifically, he told Mr Cauduro that he used a retractable spring loaded reel and a blue stretchy hose. He recanted from the description of a retractable reel admitting that he knew something pulled him and he was not an expert as he had only used it so many times. He acknowledged not knowing a lot about it. I am unable to accept the Plaintiff’s description as being reliable in the circumstances. In any event, whether the hose was rigid or elastic was not a distinction in respect of which the Plaintiff sought to make specific submissions.
I am conscious of the need for caution to be exercised in relying on accounts recorded in medical records highlighted in cases such as Mason v Demasi [272] and Davis v Council of the City of Wagga Wagga. [273] The contents of the Auburn Hospital report, the Notification of Injury form, Dr Mahaliyana’s notes, Dr Stewart’s reports and Ms Nganmaya from SCO as earlier referred were recorded proximate to the accident yet none of them record an account of the incident occurring by the high pressure hose forcibly pulling the Plaintiff back causing him to pull back and fall. A number of the records refer to tripping which is something the Plaintiff denies. The account at Auburn Hospital refers to the accident occurring as the Plaintiff was setting up. Each of these records were relatively brief, obtained in a treatment/ work context and in case of treatment in circumstances where at least initially it may be accepted that the Plaintiff was in pain.
272. [2009] NSWCA 227, Basten JA at [2].
273. [2004] NSWCA 34, per Mason P.
As outlined earlier there were also a number of other reports prepared for legal purposes. Dr Thomson and Mr Anning obtained histories in 2018. Neither report makes reference to pulling on the hose and refer instead to the hose being made of rubber and stretching. Dr Bodel referred to the accident occurring soon after starting and the Plaintiff tripping after the hose recoiled causing him to loose balance.
Of greater consequence however is the evidence of Mr Smith. He conceded that he was currently on worker’s compensation. Whilst he was not exactly happy with how things went down he stated that the Defendant was his only means of employment. He acknowledged telling the Council depot the week prior to giving evidence that he was coming to Court to give evidence against the Defendant. [274] The Defendant highlighted that he had no interest in the outcome of the trial and that he gave his evidence in a straight forward manner. Despite calling him it was the Plaintiff who sought to qualify acceptance of Mr Smith’s evidence.
274. T 174.42-175.17.
Mr Smith’s stated that he had to pick the Plaintiff up from an area that he marked on Exhibit G with an arrow. That was an area to the west of where the Plaintiff parked his vehicle. Whilst the Plaintiff submitted that Mr Smith’s evidence of location does not change the mechanism of the injury, the location is consistent with Mr Smith’s evidence of the Plaintiff having commenced to unpack and not clean in the area the Plaintiff asserts that his injury occurred. Mr Smith’s account was that he did not believe that the Plaintiff had started the relevant section but was in the process of unpacking. This was supported by observations that the hose was not fully out and corresponded with the notation in Auburn Hospital’s clinical notes. Moreover, Mr Smith did not recall turning off the boiler, he did not observe the ground to be wet or signs to be placed out and remarked that the hose was not fully out. The Plaintiff submitted that it was not put to Mr Smith that the engine of the Jet wave was not on or there was no pressure in the hose. These are matters which if necessary the Plaintiff could have sought to elucidate but did not. There were other questions that could have been asked. The Plaintiff neither in chief nor in re-examination asked any questions of Mr Smith relating to his observations when he arrived at Lidcombe after the accident. To the extent that unfavourable evidence emerged in cross examination no direction and leave were sought under ss 38(1) and (4) of the Evidence Act 1995 (NSW) (the 1995 Act).
Referring to the principles in Jones v Dunkel,[275] Handley JA stated in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Anor:

There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates “as the most natural inference that the party fears to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to the party”: see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions. [276]
275. (1959) 101 CLR 298 at 320.
276. (1991) 22 NSWLR 389 at p418 (Kirby P agreeing).

In Kuhl v Zurich Financial Services Australia Ltd, Heydon, Crennan and Bell JJ referred to Jones v Dunkel adding:

These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. [277]
277. (2011) 243 CLR 361; (2011) 276 ALR 375 at p393-4.

In this instance, I am unable to draw any inferences favourable to the Plaintiff arising from the questioning of Mr Smith.
The Plaintiff sought to cast aside the inconsistencies with Mr Smith pointing to Mr Smith’s concession that the main thing after so many years was rolling up the hose asserting that this indicates an awareness that his memory of other issues may be incorrect given the passage of time. In my view, Mr Smith’s concession did not discount the otherwise unchallenged account which was consistent and plausible. Mr Smith impressed as a credible and reliable witness who genuinely sought to give an accurate account of his recollection. I again accept his evidence.
The Plaintiff issued a Notice to Produce [278] documents relevant to the Plaintiff’s injury which was the subject of limited production and a claim for privilege. [279] Ultimately, a call under s 36 of the 1995 Act was still made for the production of the book variously described as an incident/injury/report book in the first aid room. [280] The Defendant stated without objection that this could not be located. [281] A similar call was made in respect of reports related to Mr Mallin’s injury. [282] The Defendant advised that inquiries and searches undertaken in respect of incident reports, statements or investigation reports concerning Mr Mallin’s injury had been exhausted and there are no documents to produce. [283] The Plaintiff accepted this statement. It was in these circumstances that the Plaintiff’s sought an inference that these documents would not have assisted the Defendant’s case. [284] It did not seek an inference that it should be inferred that the documents would have been positively damaging. [285] In light of the other evidence relating to the events of 22 June 2017, I do not see the Plaintiff’s case as being assisted by the inference sought.
278. Exhibit J, p203-5.
279. T 188.5-.37.
280. T 188.39-.43.
281. T 189.7-.10.
282. T 196.8-197.1.
283. T 197.5-.15.
284. Plaintiff’s written submissions at [18]-[22].
285. See Bassett v Cameron [2021] NSWSC 207 at [349]. See Plaintiff’s written submission at [22].
It follows that I am not satisfied that the accident occurred in the manner the Plaintiff described. The Defendant submitted that the most likely cause was that the Plaintiff simply tripped or stumbled on the hose and that it had nothing to do with the alleged recoiling of the hose. The Plaintiff did not advance an alternative on the basis of him tripping over the hose maintaining that he did not trip. [286] This was reiterated in closing submissions[287] and highlighted by the Defendant. [288]
286. T 260.44-261.10.
287. Plaintiff’s written submissions at [57].
288. Defendant’s written submissions in reply at [37].
In deference to the submissions of the parties I would also make the following observations.
The Plaintiff contended that the hose was of insufficient reach. The evidence of the length of the hose was that it was approximately 50 metres in length at the time of installation. There is nothing in the evidence to support that in any relevant sense that the hose was other than its 50 metre length. However, once again, I am not satisfied that this was of any consequence.
Whilst the Plaintiff stated that “crucially” the hose was changed since the accident, it did not explain what factor made it so. [289] There is no evidence that this had anything to do with the Plaintiff’s injury and no questions were asked of Mr Roese relating to the matter.
289. Plaintiff’s written submissions at [35].
So far as the hose being faulty and not properly maintained as best, I understand this was premised on the hose retracting on the operator when he sought to pull it. The Defendant submitted that there was no evidence of fault in the strict sense but rather this could be the product of the equipment itself that once under pressure the rigid hose became heavy in the sense that if it was not kept tight or taut inertia could cause the reel to turn in the opposite direction as it was a free spinning wheel. Having not accepted the Plaintiff’s evidence, I cannot be satisfied that this had anything to do with the accident and that the precautions would have prevented it.
It is unnecessary to consider the matter further and in particular the Defence under s 5H of the 2002 Act.
It follows that as the Plaintiff has failed to establish that the risk of harm materialised and breach and causation have not been established. Accordingly there must be a verdict in the Defendant’s favour. The question of apportionment under section 151Z of the Workers’ Compensation Act 1987 (the 1987 Act) does not arise. In the event I am wrong in my conclusion, I proceed to consider the damages I would have awarded had the Plaintiff succeeded.

DAMAGES

Lay Evidence

Plaintiff

Pre Accident

The Plaintiff was born on 1 June 1965 and is 56 years of age. [290] He described that prior to the accident he was very healthy and walked over 15kms a day. He stated that his left wrist was his best hand before the accident. He had broken his right hand when he was ten years old. [291] Psychologically he stated that he had suffered previously from anxiety and depression as he had been very active and worked a lot of hours. [292] Prior to the accident, he acknowledged taking medication for anxiety and depression. [293]
290. Exhibit B.
291. T 19.18-.25.
292. T 19.27-.42.
293. T 19.40-.49.
In cross examination, the Plaintiff could not recall seeing Dr Andrew Li (a GP) in 2007. Nor could he recall having loss of concentration at that time. He thought perhaps he had difficulty sleeping back then. He accepted however that he had been prescribed Zoloft an anti-depressant. [294] The Plaintiff also could not recall seeing Dr Li a month later complaining of feeling low, poor concentration, feeling tired or difficulty sleeping. [295] The Plaintiff could not recall increasing the dose of Zoloft from 50 mg to 100mg in 2008 but thought it might have had something to do with breaking his ankle that year stating “it was giving me hell.” [296] The Plaintiff accepted that he was taking Zoloft for many years prior to June 2017 and that the dose would possibly go up when he was feeling particularly bad. [297]
294. T 51.14-40.
295. T 51.42-52.2.
296. T 52.4-.20.
297. T 52.48-52.3.
In cross examination, the Plaintiff conceded that in the 12 months prior to the accident, he had anxiety and depression and was suffering from alcohol withdrawals before 22 June 2017. [298] He conceded that he may not have turned up to work in his previous employment because he was suffering from alcohol withdrawal problems. [299] In seeing Dr Paula Cameron (Psychiatrist) in March 2014, he conceded stating that that he had become more withdrawn from work and socially [300] and that his anxiety gets exacerbated when he is around a lot of people. [301] He indicated a preference for working on his own or in small groups. [302] He conceded having an overwhelming anxiety problem in March 2014 and when he was not working it would get him down. [303] He accepted that he would get panic disorders and would avoid people socially sometimes it’s worse than others depending on what’s going on his life. [304] He acknowledged that he told Dr Cameron that he had symptoms of social isolation [305] although it was not every day or every week but generally, a matter that affected him all of his life. [306]
298. T 47.10-.20.
299. T 48.1-.3.
300. T 48.9-.28.
301. T 48.30-.36.
302. T 48.38-.39.
303. T 48.45-49.2.
304. T 49.4-.9.
305. T 49.21-.22.
306. T 49.24-.30.

From 24 June 2017 to 30 June 2018 (53 weeks) loss of $58,300.00 less $4,174.00 (being earnings during that period) being a loss of $54,126.00.

From 1 July 2018 to 30 June 2019, $57,200.00 less $8,147.00 being a loss of $49,053.00.

From 1 July 2019 to 30 June 2020 (52 weeks at $624.04) equals $32,450.08.

From 1 July 2020 to (adjusted to present) (59 weeks at a loss of $624.04 per week) equals $19,118.36.

The Plaintiff also claims superannuation

The Defendant submitted that on 18 October 2017, the Plaintiff’s treating psychologist noted that the Plaintiff was almost back to full duties and litter-picking with no heavy lifting although he had some anxiety about having to drive a sweeper. By 31 October 2018, the Plaintiff was certified fit for some type of employment for normal hours and normal days per week with no restrictions. By 28 November 2018, Dr Wong certified the Plaintiff fit for pre-injury duties with no restrictions.
The Defendant submitted that the Plaintiff was essentially totally incapacitated for work from time to time but had some capacity to 22 September 2018 being a period of 65 weeks allowing a loss of $1,100 net per week totalling $65,000. Noting that the Plaintiff did work during that period, an allowance should be made for that.
The Defendant contended that thereafter, the Plaintiff was either fit to return to normal duties, or if not, he was fit for a wide range of jobs so that his loss, if any, would be minimal. It drew attention to the following:

The plaintiff agreed that since August 2018, he has been fit for work, and for normal hours, Monday to Friday.

He thought by about the end of May 2018 he could work as a street cleaner.

He agreed he could work as a Railway Protection Officer by May 2018.

He could work picking up litter and rubbish if he was provided with a bin with wheels.

He could do light commercial cleaning.

He could probably clean offices and could work as a cleaner in a hospital or in a school.

He could work in a job that did not require particularly heavy use of his left wrist and hand.

He could do process work.

He could work as a sales assistant.

He supposed he could work as a clerk.

It was noted that the Plaintiff had put his name down at different cleaning jobs and worked intensely with his network provider.
Beyond that, the Defendant drew attention to the Plaintiff’s chronic back lower back pain and chronic left ankle pain, the Plaintiff’s heart problems and the Plaintiff’s ongoing alcohol intake. Accordingly, the Defendant submitted that the Plaintiff either had no ongoing loss of earning capacity causally related to the subject incident, or else any reduced earning capacity is fairly minimal and no more than $100 net per week from 23 September 2018 allowing a loss of $100 net per week. According to the Defendant’s calculations, past economic loss would comprise of $65,000 plus $100 for 152 weeks making a total of $80,200. From this, it submitted that the total of $12,321 of earnings should be deducted making a figure of $67,879.
To this figure, an allowance of 11% for past loss of superannuation should be allowed.

Consideration

Dr Wong certified the Plaintiff fit for preinjury duties without restrictions from 28 November 2018. I would accept that the Plaintiff was incapacitated from time to time before that date subject to his demonstrated capacity to earn.
On this basis, I would allow from 75 weeks from 24 June 2017 to 30 November 2018 being an amount of $82,500 less the amounts earned by the Plaintiff totalling $12,321 making a past loss to that point of $70,129.
In respect of the period thereafter, it appears the Plaintiff accepted that there are a variety of jobs that he considered he could perform. I do not accept the report of Ms Bevan which sought to assess the Plaintiff’s loss on the basis of him retraining to perform clerical work part time. In my view, that conclusion constrained the available consideration of tasks and hours that the Plaintiff could undertake. The range of positons that the Defendant’s experts made reference to were broader however it is acknowledged that not all jobs in the identified categories would be suitable and the Plaintiff’s ability to access the open labour market is to that extent reduced. The physical assessment of Mr Bryden-Brown was also at a time more proximate to when Dr Wong assessed the Plaintiff as having chronic lower back pains and chronic left ankle pains secondary to severe osteoarthritis. Even so Mr Bryden-Brown concluded amongst other things there was a functional range of movement and strength in the bilateral lower limb peripheral joints and a symmetrical stance with normal spinal curves, hips and shoulder level. I acknowledge that he also found a fair level of cardiovascular fitness which preceded the Plaintiff’s first heart attack and there was also no reference to pancreatitis.
Putting aside the Plaintiff’s other co-morbidities, I would assess the Plaintiff’s loss of capacity to work arising from the subject injury from 30 November 2018 to date in so far as is referable to the accident at an average $300 a week for 142 weeks being an amount of $42,600. In coming to the figure I have been guided by the Job Match report subject to the qualifications referred to.
That makes a total loss of past income as $112,729. As this represents a net figure, I would allow loss of superannuation at 11% [584] of the past income loss being an amount of $12,400.19. This makes a total past loss of earning capacity of $125,129.19.
584. Accepted by both parties. See Plaintiff’s written submissions at [146] and Defendant’s written submissions at [118].

Future Loss of Earning Capacity

The Plaintiff was educated to year 10. He obtained a certificate III in Fitness and in Applied Electrics. Between 1981 and 2000 his work history included hospitality, labouring, landscaping and as a geology field assistant. Thereafter, he worked with travel lodge in hospitality between 2000 and 2003, as a removalist between 2005 and 2015, and with Council cleansing departments between 2015 and 2017. In December 2016, he commenced work with SCO recruitment. Other than the brief periods of work referred to in respect of past loss of earning capacity he has not worked since the accident.
In 2018, he applied for a number of positions as follows: a cleaner, operations assistant, worksite cleaner, catering, cleaning and laundry assistant, and a member of event site crew. [585] At one stage he sought to commence a business although he did not come to pursue it. He gave evidence that notwithstanding his back and ankle he would plod on and work with his left wrist and would like to do a certificate 2 in horticulture which commenced in July.
585. Exhibit 4, p337-342.

Submissions

The Plaintiff submitted based on Ms Bevans report suffered a loss of $624.04 which allowing for CPI adjustments would come to $650 net per week for the remainder of his working career. The Plaintiff used a multiplier of 473.9 after allowing 15% reduction for vicissitudes claimed future economic loss of $261,829.75 plus 14% of loss of superannuation coming to $36,656.17. In the alternative, the Plaintiff argued that it was entitled to a buffer as he was disadvantaged in the open labour market noting his age, education and work experience around $200,000.00.
The Defendant submitted that the Plaintiff had no ongoing loss of earning capacity attributable to the subject accident and moreover his unrelated co-morbidities would be sufficient to preclude him from being gainfully employed to retirement age in any event
In the event that the Court were to find to the contrary, the Defendant submitted that the Plaintiff should only be allowed $100 per week until retirement age which the 5% multiplier for 11 years would come to 44.1 after allowing 15% for vicissitudes; the figure would come to $37,749 together with the loss of superannuation at 14% an initial $5,285.

Consideration

Section 13 (1) of the 2002 Act provides:

13 FUTURE ECONOMIC LOSS--CLAIMANT'S PROSPECTS AND ADJUSTMENTS
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

For reasons earlier provided, I am satisfied that the Plaintiff has ongoing incapacity arising from the subject accident. Whilst I would accept that the Plaintiff’s co-morbidities do have an impact on his work capacity, I remain of the view that so does the subject injury. I accept that the Plaintiff is well motivated. Following the conclusion of this matter, he would ordinarily be relieved of the associated stress and anxiety and some improvement in his psychological condition could be expected following treatment. He would most probably pursue retraining and potential self-employment opportunities. He has previously been self-employed for an extended period and according to his evidence, successfully.
The Plaintiff gave evidence that but for the accident he would have remained with SCO for 12 to 18 months before seeking to return to removalist work. Whilst the Plaintiff gave no thought as to how long he would work for, the Defendant’s calculations appear to accept a period of 11 years. I will proceed on this basis. Consistent with the agreement of the parties and making some adjustment for inflation, I would accept that but for the accident, the Plaintiff’s earning capacity would now be around $1200 net.
Having regard to my findings as to the most likely future circumstances, and potential earnings referred to in the Job Match Report subject to the qualifications mentioned I would allow an average sum of $280 net per week for 11 years less 15% for vicissitudes. Using the 5% multiplier (444.1) this would come to an amount of $105,695.80. I would add 14% for loss of superannuation being an amount of $14,797.41 making a total for loss of future earnings of $120,493.21

Past Domestic Assistance

The Plaintiff

The Plaintiff gave evidence that prior to his accident he resided in a two bedroom compact apartment with a bathroom, small kitchen, laundry, living room and garage. Prior to the accident he described that he did most of the cooking, cleaning up outside and some laundry and vacuuming. His house companion (Ms Moretti) would predominantly do shopping.
He stated after the accident Ms Moretti would assist drying him, cooking and doing the house work. He estimated that this would be perhaps 10 to 12 hours a week. Around mid-2018 he stated that he was back to cooking, washing up and would just go about things differently. He stated that Ms Moretti would assist with drying and dressing him. [586]
586. T 39.49-40.48.
For a year following his last surgery, the Plaintiff described that he would not do a lot in domestic tasks. He said he would carry with the right hand. He stated that he would do cleaning and some outdoor work.
In cross examination, the Plaintiff conceded that he could use a blower, rake leaves outside the unit and place them in a bin. This required him to bend down to fill the bin. He conceded that whilst it was difficult to do, it had nothing to do with his wrist. He stated that whilst he may have stated that a person helped him move the bin a couple of times, neighbours come and go and his neighbour does not help him move the silo bin. [587]
587. T 123.-25.
The Plaintiff conceded that he was able to cook but didn’t shop. He stated that he could clean and look after his own room whilst Ms Moretti does the shopping as she did before the accident. Whenever he needs something that Ms Moretti can’t do would then attend to it. He accepted that he could change the sheets on his bed. The Plaintiff stated that he still has difficulties dressing, showering and drying his back. [588]

Lorretta Moretti

588. T 125.11-.48.

Prior to the accident, Ms Moretti described that the domestic chores were shared equally between them with the Plaintiff doing cooking and washing up. She would do the shopping and the vacuuming and laundry would be shared. In cross examination, Ms Moretti conceded that apart from the cooking each basically did things separately but lived under the same roof.
Following the accident, Ms Moretti stated that she took over nearly all of the Plaintiff’s chores and estimated that this comprised around 12 hours a week. Following the Plaintiff’s final surgery, she estimated that that the number of hours she spent doing things that the Plaintiff use to do had fallen a little to 10 hours a week. She described the Plaintiff as a good friend who she would help as long as she could. In cross examination, Ms Moretti conceded that the Plaintiff is now home most days and had done some cleaning and vacuuming. To the extent that she had picked up the slack this had been for both their benefit.

Wendy Bevan

Ms Bevan gave evidence following a physical and functional assessment of the Plaintiff and opined following impairments:

Maximum standing tolerance is 30 minutes and then needs to support the wrist to relieve sensory disturbance and rising pain;

Walking tolerance is 30 minutes maximum and then needs to support the arm and the left wrist. Running and jogging is to be avoided. Walking with carrying a load should be avoided;

Unable to assume the positions of 4 point kneeling and crawling due to pain in the left wrist;

Maximum driving tolerance recommended was 45 minutes due to pain in the left wrist and then has a break for around 10 minutes;

Only capable of lifting and carrying weights under 5 kg in the left hand. Not capable of carrying weights in the left hand for more than 3 minutes. Main problem is pain in the left wrist;

Impaired hand/power grip in the left hand compared to the right hand strength;

Keyboard and writing skills is restricted to around 1 hour due to rising left wrist pain in keyboard work. [589]
589. Exhibit J, p257-8 at [3.2].

Based on her assessment the total past care weekly hours would be:

From 29/6/2017 [590] to 29/4/2018 – 3. 5 hours for personal care;

From 29/6/2017 to 29/12/2017 – 7 hours for meal preparation and 2 hours for transportation totalling 9 hours;

From 29/6/2017 to 31/5/2018 – 2 hrs for cleaning, 0.75 hour laundry and 1.5 hours for gardening totalling 4.25 hours

From 29/6/2017 to 15/1/2019 – 1 hour a week for shopping.
590. Date of discharge from hospital.

In relation to gardening and lawns, Ms Bevan noted that the area surrounding the ground floor of the unit is very thick with leaves that can pile to a height that overflows onto the veranda. Further, the leaves can pile to a height that overflows into the veranda and the drains for the waterholes come out form the veranda area and get blocked regularly by these leaves. Ms Bevan noted that following the accident he needed help with the raking, sweeping and picking up of the leaves and debris dropped on a regular basis onto the ground to keep the drains clear before resuming this role after 4 months. That assistance was said to be provided by his friend and flatmate Ms Morretti. [591]
591. Exhibit J, p271-2 at [8.6.1].
In relation to transport, Ms Bevan reported that following the accident he was unable to drive due to his injury for around 6 months post discharge. Further, Ms Moretti is recorded as having driven him to all local destinations including medical and physiotherapy appointment. [592]

Sanja Zeman

592. Exhibit J, p274 at [8.8.1].

The Defendant qualified Ms Sanja Zeman to prepare a functional capacity report dated 24 September 2019. [593] Ms Zeman reported that despite extensive hand therapy, the Plaintiff has been left with residual pain and marked weakness of the left hand impacting on his function notably that relating to tasks requiring internal rotation of the left wrist with radial deviation in task performance.
593. Exhibit 4 p426.
Ms Zeman carried out a functional analysis which noted the following impairments:

Reduced range of movement of the left elbow on pronation and supination with reported pain through the ulnar aspect of the left wrist;

A dominant grip strength of 25kg which is 70% of the normative for gender and age and a non-dominant grip strength of 9kg which is 19% of the normative data for gender and age;

A pronounced thoracic kyphosis during testing over the overhead reach position reporting increased left wrist pain (3/10) at 1 minute of testing. Shoulder fatigue was reported at 2.20 minutes of testing and at the completion of tensing shoulder pain was reported as 5/10 and left wrist pain 4/10;

An ability to assume a deep squat however unstable in this position associated with left ankle issues;

Manual handling safe maximum load bench 8.58kg with an ability to carry a weighted backpack for exercise weighing 15 kg. [594]
594. Exhibit 4, p438-441 at [13.2.4].

Based on instructions from the Plaintiff, Ms Zeman noted that prior to the accident the Plaintiff was primarily responsible for the outdoor maintenance including the enclosed garden area, his bedroom, doing his own laundry, shopping for himself and cooking for himself (or both he and Ms Moretti).
Following the accident, Ms Zeman was advised that the Plaintiff shares meal preparation more than previously and was independent with self-care. Ms Moretti continues to assume primary role responsibility for vacuuming and bathroom cleaning. The Plaintiff cleans his own bedroom and maintains the yard sometimes with a neighbour’s assistance.
Ms Zeman found that the Plaintiff was adapted well to compensate for his residual weakness and functional impairment and has regained the ability to undertake all of his previous roles and responsibilities in the context of his living arrangements. However, for the past she made the following assumptions:

Period of Assistance

Care Needs / Total Duration

1. 23.06.2017 – 15.08.2017 (7.7 weeks)

Mr Richard Gillam sustained a left wrist fracture on 23.06.17. He proceeded to internal fixation on 28.06.2017, and during this period had limited function of the left hand. By 15.08.2017, he was noted to have reasonable flexion, extension, pronation and supination of the wrist, and was cleared to resume work duties.

2. 16.08.2017 – 05.12.2017 (16 weeks)

Mr Richard Gillam returned to work during this period, despite persistent symptom presentation. He continued it present with non-union of the fractures of his left wrist, impacting on function and pain presentation.

3. 06.12.2017 – 23.01.2018 (7 weeks)

Mr Richard Gillam proceeded to further surgery on 06.12.2017, undertaken as a day only procedure. He resumed hand therapy one week post operatively, and by 23.01.2018, was approved to come out of the splint.

4. 24.01.2018 – 25.04.2018 (13 weeks)

Mr Richard Gillam continued to present with pain and persistent weakness within the left hand over this period. As of 20.02.2018, he was still is unable to do any heavy manual work and cannot lift more than one kg with the left hand.

5. 26.04.2018 – 07.06.2018 (6 weeks)

Mr Richard Gillam proceeded to further day surgery on 26.04.2018. During his post-operative recovery period he made further functional gains to strength and hand function.

6. 08.06.2018 – current (64 weeks)

Current function maintained.

Thereafter Ms Zeman proposed gratuitous care as follows:

Period

Dates

Weeks in Period

Functional Status

1

23.06.2017 – 15.08.2017

7.7 WEEKS

Bathing / Showering

1 hour p/w

Personal Grooming

0.125 hours p/w

Dressing

0.5 hours p/w

Meal Preparation

3.5 hours p/w

Laundry

1 hour p/w

Bed making / Linen change

0.5 hours p/w

Shopping

1 hour p/w

Total assistance per week: 7.625 hours per week

2

16.08.2017 – 05.12.2017

16 WEEKS

Total assistance per week: Nil – some tasks neglected

3

06.12.2017 – 23.01.2018

7 WEEKS

Bathing / Showering

1 hour p/w

Personal Grooming

0.125 hours p/w

Dressing

0.5 hours p/w

Meal Preparation

3.5 hours p/w

Laundry

1 hour p/w

Bed making / Linen change

0.5 hours p/w

Shopping

1 hour p/w

Total assistance per week: 7.625 hours per week

4

24.01.2018 – 25.04.2018

13 WEEKS

Total assistance per week: Nil – some tasks neglected

5

26.04.2018 – 07.06.2018

6 WEEKS

Bathing / Showering

1 hour p/w

Personal Grooming

0.125 hours p/w

Dressing

0.5 hours p/w

Meal Preparation

3.5 hours p/w

Laundry

1 hour p/w

Bed making / Linen change

0.5 hours p/w

Shopping

1 hour p/w

Total assistance per week: 7.625 hours per week

6

08.06.2018 – current

64 WEEKS

Total assistance per week: Nil

In relation to past gardening, Ms Zeman noted that the Plaintiff maintains the outdoor balcony and the front yard which is part of common property. He was not provided with any specific gratuitous assistance following the accident and tasks were neglected. On resumption he gained assistance from neighbours in relation to pulling a heavy wheelie bin after he collected leaf litter and plant material if it became too heavy. He is recorded as advising that he is able to manage the bin if it is not overly full and has the option of pacing the work or gain assistance from a neighbour as it is an area that is common property and not related to a role responsibility. Ms Zeman noted that the Plaintiff was not provided with any specific gratuitous assistance following the subject accident. [595]
595. Exhibit 4, p451 at [14.6.5].
So far as transport was concerned, Ms Zeman recorded that he was not driving following the subject accident and during each period of post-operative recovery. He relied on Ubers twice weekly to access hand therapy and was otherwise housebound and his flatmate provided occasional assistance only. [596]

Joint Report

596. Exhibit 4, p452 at [14.6.7].

A joint report was also tendered following a conclave. [597]
597. Exhibit K5 pp34-87.
In that report Ms Zeman maintained the opinion earlier expressed with little elaboration. Ms Bevan by contrast noted a greater level of disability than Ms Zeman associated with the injury.
In relation to personal care, Ms Bevan observed that to have good care it was necessary to have good fine motor skill manually, bilaterally and unilaterally with an ability to undertake wrist flexions and extension, deviation and pronation/supination of dressing and undressing and drying after a shower and adjusting clothing after toileting. It was noted that hand therapy was undertaken for a six month period on a weekly basis. Ms Bevan noted that it was reasonable and necessary for past gratuitous care assistance to be continued from the date of discharge for a ten month period due to wrist pain and immobilisation of the left wrist and attempts to undertake thee jobs to try and sustain employment with resultant pain and to undertake extensive has therapy to try to endeavour to recover function.
In relation to cleaning, Ms Bevan opined that to do heavier tasks in cleaning around the home, both upper limbs need to be used under force of pressure or weight /load and to have the capacity to lift carry, push and pull to significant levels, have bilateral power grip and be able to sustain the grip and to be dexterous at the wrist under load and pressure in order to push and pull and manipulate mops and brooms including wrist flexions and extension as well as deviation supination and pronation. She noted that wrist movement would exacerbate pain and recorded that the Plaintiff did not achieve reasonable independence until around four months after his final operation in January 2018. Ms Bevan allowed 2 hours a week form 29 June to 31 May 2019 in respect of these tasks.
In respect of meal preparation, Ms Bevan stated that in order to carry out meal preparation the Plaintiff would have had to be able to lift and carry weights repetitively using both hands to lift and carry saucepans and dishes with hot fluid, to apply power grip bilaterally and to have good manual dexterity bilaterally to utilise implements in a dexterous way including slicing and chopping and cutting and serving and these requirements include the need for relative flexions and extension deviation, supination and pronation all of which aggravate the Plaintiff’s wrist pain. Ms Bevan opined that she allowed for assistance for six months during recovery from surgery and attempting his three jobs.
In respect of transportation, Ms Bevan recorded that the Plaintiff would have difficulty driving and noted that he kept driving to 45 minutes before taking a break to relieve the pain and discomfort. She noted that he had to attend regular therapy sessions as well as regular medical appointments and to attend also for hospitalisation visits and hence it was reasonable and necessary that he be provided with assistance from Ms Moretti.
In respect of laundry, Ms Bevan reported that the Plaintiff would undertake all laundry tasks but not ironing. There was evidence following the accident that these tasks were performed by Ms Moretti following the accident in light of the Plaintiff’s restriction and ongoing therapy although both the Plaintiff and Ms

Submissions

The Plaintiff claims as a result of his injuries and disabilities he has been unable to attend to numerous domestic duties and has been relying on his friend Loretta Moretti. Based on a report Wendy Bevan (occupational therapist dated 28 January 2019) the Plaintiff claimed compensation for gratuitous domestic care and assistance provided by Loretta Moretti as follows:

From 23 June 2017 to 29 December 2017, 17.75 hours per week for 27 weeks at $30.00 an hour = $14,377.50

From 30 December 2017 to 29 April 2018, 8.75 hours per week for 17 weeks at $30.00 an hour = $4,462.50

From 29 April 2018 to present, the Plaintiff conceded that it did not meet the statute requirements.

Accordingly, the claim made was for gratuitous care totalling at $18,840.00.
The Defendant asserted that whilst both parties had qualified occupational therapists, the Court should disregard both opinions and consider the evidence given by the Plaintiff and Loretta Moretti which is submitted evidenced that the Plaintiff would not meet the minimum threshold test in s 15 of the 2002 Act namely at least six hours a week for a minimum of six months or that the need has arisen solely because of the subject injury. Therefore, it was submitted that no allowance should be made for past or future care.

Consideration

I do not accept the Defendant’s submission as to the evidence of the Plaintiff and Ms Moretti being such that no allowance should be made for past domestic care.
Whilst both reports are based on what was viewed as reasonable and necessary including the Plaintiff’s instructions, Ms Zeman’s report excluded periods when the Plaintiff resumed working despite acknowledging that he continued to present with symptoms impacting on his function.
Ms Bevan’s assessment was conducted on 15 January 2019 when the Plaintiff was experiencing difficulties with his wrist after resuming work. Ms Zeman’s report was based on an assessment on 20 August 2019. This was at a time that the Plaintiff had a recurrence of symptoms from which he appears at least to have recovered to the point of not requiring analgesics when he saw Dr Wong on 22 October 2019. Prior to the assessment Dr Wong recorded on 12 April 2019 that he felt well. The Plaintiff’s claim however relates to a period that preceded both functional assessments.
Generally, I would prefer the evidence of Ms Bevan which appears to give better estimates of the task requirements and the corresponding explanations. In particular, I would accept the estimates for personal care and meal preparation and provision.
Ms Zeman made no allowance for domestic cleaning being something that Ms Bevan allowed 2 hours a week for a period up to 4 months following the last surgery. Ms Zeman stated that prior to the accident, Ms Moretti undertook the internal home maintenance other than the Plaintiff’s room. However, Ms Bevan recorded that this was previously carried out on a 50/50 shared basis. That accords with the oral evidence particularly of Ms Moretti. In any event, accepting that this task could not be performed by the Plaintiff, it is appropriate to make an allowance in accordance with Teuma v CP & PK Judd Pty Ltd. [598]
598. [2007] NSWCA 166 at [51]-[65] per Ipp JA (Hodgson and Basten and JJA agreeing).
Ms Bevan noted the need for gardening work to have been carried out and the Plaintiff’s difficulty in doing so. According to Ms Bevan, such services were required during the four month period following the Plaintiff’s injury and Ms Moretti carried out this work. Neither the Plaintiff nor Ms Moretti gave oral evidence of occurring at any point. Ms Zeman’s report indicated that when the Plaintiff could not do the work it was neglected. Beyond that, Ms Zeman indicated that when the Plaintiff resumed that task the Plaintiff gained assistance from his neighbour to pull or push the silo bin. The Plaintiff’s oral evidence was that that this happened a couple of times and whilst it was difficult to do, it has nothing to do with his wrist. In the circumstances, I am not satisfied that there was any specific prior gratuitous assistance in this respect and would make no allowance in this regard.
Whether there was a need for transportation assistance or not there was no oral evidence either from the Plaintiff or Ms Moretti that the latter provided such care. Ms Bevan reported that the Plaintiff advised that Ms Moretti would drive him to all local destinations including medical and physiotherapy appointments. Ms Zeman recorded that she was advised that only occasional assistance was provided by Ms Moretti and the Plaintiff either used Ubers or was housebound when unable to drive. In the absence of any further evidence, I am not satisfied that any allowance should be provided in this regard.
In respect of shopping, Ms Bevan listed the tasks required which included lifting and carrying weights beyond 5-6 kgs, pushing and pulling a loaded trolley, manoeuvring it and carrying shopping for transportation. She noted that the Plaintiff reported to her that he shared this task with Ms Moretti. Ms Bevan recorded that the Plaintiff relied on Ms Moretti during periods that he was unable to drive. The evidence before me was that shopping was a task that Mr Moretti generally performed both before and after the accident as part of the overall sharing of responsibilities to which the Plaintiff still was able to make contribution as evidenced by his cooking and cleaning. Nevertheless, in accordance with Teuma v CP & PK Judd Pty Ltd, I would accept the need for the service is compensable.
On these figures, the total allowance would be 14.25 hours from 29 June 2017 to 29 December 2017 being 6 months (26 weeks) and thereafter 7.25 hours to 29 April 2018 (17 Weeks). Thereafter, the requirements of s 15 of the 2002 Act would not be met. The amount claimed by the Plaintiff of $30 per hour does not exceed a rate of provided for in s 15(4) of the 2002 Act. Accordingly, I would allow $30 per hour from 29 June 2017 to 29 December 2018 (26 weeks) for 14.25 hours per week this would amount to $11,115. Accepting the same rate hour from 30 December 2017 to 29 April 2018 (17 weeks) for 7.25 hours per week this would amount to a figure of $3697.50. The total for past domestic assistance would be $14,812.50.

Future Domestic Assistance

Submissions

The Plaintiff claimed that costs of future care and assistance on a commercial basis as it was not reasonable to expect Ms Moretti to provide care and assistance in the future.
The Plaintiff’s claim was based on 1.5 hours recommended by Ms Bevan for removal of what were described as a prolific amount of leaves and branches and debris from the balcony in order to keep the water drains clear and prevent flooding to the unit. Ms Bevan stated that the Plaintiff’s functional limitations would be too severe to meet these physical demands. Accordingly, provision should be made for commercial care assistance of 1.5 hours a week for collecting such rubbish and placing it in the green bins.
Further, it was submitted that as the Plaintiff could not contribute to any of the manual tasks required for the completion of grocery shopping he should be given financial assistance by way of $10 per week to access delivery services.
Accordingly, a claim was made of the following:

1.5 x $56.33 x 10 years (412.9) = $34,887.99

$10.00 per week grocery delivery for 10 years (412.9) = $4,129.00

Making a total future claim of $39,016.99.

The Defendant submitted that there is nothing to suggest that the current living arrangements will be likely to change in the future and there was no basis upon which to award future attendant care services on a commercial basis in accordance with Miller v Galderisi. [599]
599. [2009] NSWCA 353 at [18], [20]-[21].

Consideration

In White v Benjamin [600] Basten JA at [78] stated:

The second basis of the challenge to the assessment of domestic care was the rejection of the claim for services of commercial providers in the future. The temporal limits did not apply to such a claim. However, the acceptance of such a claim must rest on a finding that such services would at some point be availed of in place of the gratuitous services. (This element of damages is unusual because it refers not to the plaintiff’s tortiously caused disability or incapacity, but the means by which she will address it: this factor follows from the differential approach required by statute to an assessment of a claim for gratuitous services.)
600. [2015] NSWCA 75.

I accept that Basten JA held at [87] that it would be wrong to place too much weight on the existence or absence of direct evidence of intention. Further, it was held that the absence of evidence that if funds were available commercial services would be used, was also not determinative.
Nevertheless, some analysis of the evidence to support such an allowance is required. The Plaintiff submitted that Ms Moretti has a full time job and is very much affected by the Plaintiff’s injuries and it was not reasonable to expect her to provide extra hours of care and assistance.
As noted earlier, the evidence of the Plaintiff is that he presently carries out the gardening work. According to Ms Bevan, when the Plaintiff resumed doing so, the lifting, carrying and using the implements led him to suffer severe wrist pain and struggle to undertake this task. [601] The Plaintiff gave no oral evidence to this effect otherwise accepting that he could use a blower, rake leaves outside the unit and place them in a bin. Moreover, in May 2019, he proposed to set up a business registering the MowBlowGo to do gardening. Whilst he said that this did not proceed, it was not suggested that raking and blowing were amongst the activities he could not perform. In all the circumstances, I am not satisfied that the gardening tasks he performs are outside his functional capacity such that an allowance for commercial care in the future should be made. In any event some of the gardening he performs according to Ms Zeman is work on common property that is not related to a role responsibility that he has to undertake.
601. Exhibit J, p273 at [8.6.1(d)].
So far as the cost of grocery delivery service was concerned, that appears more in the nature of future out of pocket expenses. In any event, the evidence was that both before and after the accident this was a task that Ms Moretti performed as part of the shared living arrangements between them. Ms Moretti described the Plaintiff as a good friend who she would help as long as she could. The evidence of Ms Zeman is that this is a task that the Plaintiff has been able to resume. The evidence of Ms Bevan is that due to the forces involved, the Plaintiff is unable to carry out that task. I accept that this is so. Whilst the present shared arrangements are likely to continue for the immediate future, an allowance should be made for the possibility that they change requiring him to avail commercial services. I would allow $250.

Summary

Accordingly for the reasons stated had the Plaintiff succeeded I would have awarded damages as follows:

Non-economic loss          $ 96,000

Past out of pocket expenses:      $ 67,026.20

Future out of pocket expenses:      $ 10,000

Past loss of earning capacity:      $125,129.19

Future loss of earning capacity:      $120,493.21

Past loss of domestic assistance:      $ 14,812.50

Future loss of domestic assistance:   $ 250

TOTAL:               $433,711.10

To that figure, I would need to add the Fox v Wood [602] component and make the relevant deduction pursuant to s151Z of the 1987 Act. I would have heard further from the parties in relation to both matters consistent with my reasons noting also that neither party submitted in relation to the s 151H threshold in the 1987 Act.
602. (1981) 148 CLR 438.
However, in light of my earlier findings, the Orders will be:

Verdict for the Defendant.

Subject to any application to be made to my Associate to relist the matter within 14 days for any further or other order as to costs. The Plaintiff is to pay the Defendant’s cost.

Exhibits to be retained for 28 days.

Endnotes

Decision last updated: 09 October 2021

Medium Neutral Citation:	Richard Gillam v Cumberland Council [2021] NSWDC 538
Hearing dates:	24 and 25 February 2021 1, 2 and 3 March 2021 14 May 2021
Date of orders:	23 August 2021
Decision date:	23 August 2021
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict for the Defendant
Catchwords:	PERSONAL INJURY –– Plaintiff sustained injury to his left wrist performing work for the Defendant as a general labourer using a high pressure hose – Where evidence of different versions recorded about how accident occurred – General caution to be exercised in considering such versions – Where Plaintiff had not established accident occurred in the manner contended – Court not satisfied that the relevant risk of harm materialised – Where the Plaintiff did not advance an alternate case EVIDENCE –– Witness evidence – Where Plaintiff fails to question a witness it called in respect of circumstances surrounding injury – Where no inferences favourable drawn due to the Plaintiff’s failure to ask questions of a witness in chief or re-examination – Consideration of principles in Jones v Dunkel and Kuhl v Zurich Financial Services Australia Ltd DAMAGES –– Non-economic loss – Past and Future out of Pocket Expenses – Future loss of earning capacity – Past and Future Domestic Assistance
Legislation Cited:	Civil Liability Act 2005 (NSW), ss 3, 5B, 5C, 5D, 5H, 13 Evidence Act 1995 (NSW), ss 36, 38 Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited:	Alan Donald v Rail Corporation of New South Wales [2016] NSWSC 1897 Atkinson v Gameco(NSW) Pty Ltd [2005] NSWCA 338 Bassett v Cameron [2021] NSWSC 207 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Bourke v Victorian Work Cover Authority [1999] 1 VR 189 Commercial Union Assurance Company of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 Davies v Whitehaven Coal Mining Limited (2020) 300 IR 76; [2020] NSWCA 219 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Fox v Wood (1981) 148 CLR 438 Jones v Dunkel (1959) 101 CLR 298. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; (2011) 276 ALR 375 Mason v Demasi [2009] NSWCA 227 Payne v Parker [1976] 1 NSWLR 191 Pollard v BaulderstoneHornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 Raimondo v State of South Australia (1979) 23 ALR 513 Sangha v Baxter (2009) 52 MVR 492; [2009] NSWCA 78 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 Shaw v Thomas [2010] NSWCA 169 Teuma v CP & PK Judd Pty Ltd [2007] NSWCA 166 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 27 White v Benjamin [2015] NSWCA 75 Williams v Metcash Trading Ltd (2019) 286 IR 438; [2019] NSWCA 94
Category:	Principal judgment
Parties:	Richard Gillam (Plaintiff) Cumberland Council (Defendant)
Representation:	Counsel: J. Malouf (Plaintiff) R. Gambi (Defendant Solicitors: Gerard Malouf & Partners (Plaintiff) McCulloch & Buggy Lawyers (Defendant)
File Number(s):	2018/330912
Publication restriction:	Nil

Period of Assistance	Care Needs / Total Duration
1. 23.06.2017 – 15.08.2017 (7.7 weeks)	Mr Richard Gillam sustained a left wrist fracture on 23.06.17. He proceeded to internal fixation on 28.06.2017, and during this period had limited function of the left hand. By 15.08.2017, he was noted to have reasonable flexion, extension, pronation and supination of the wrist, and was cleared to resume work duties.
2. 16.08.2017 – 05.12.2017 (16 weeks)	Mr Richard Gillam returned to work during this period, despite persistent symptom presentation. He continued it present with non-union of the fractures of his left wrist, impacting on function and pain presentation.
3. 06.12.2017 – 23.01.2018 (7 weeks)	Mr Richard Gillam proceeded to further surgery on 06.12.2017, undertaken as a day only procedure. He resumed hand therapy one week post operatively, and by 23.01.2018, was approved to come out of the splint.
4. 24.01.2018 – 25.04.2018 (13 weeks)	Mr Richard Gillam continued to present with pain and persistent weakness within the left hand over this period. As of 20.02.2018, he was still is unable to do any heavy manual work and cannot lift more than one kg with the left hand.
5. 26.04.2018 – 07.06.2018 (6 weeks)	Mr Richard Gillam proceeded to further day surgery on 26.04.2018. During his post-operative recovery period he made further functional gains to strength and hand function.
6. 08.06.2018 – current (64 weeks)	Current function maintained.

Period	Dates	Weeks in Period	Functional Status
1	23.06.2017 – 15.08.2017	7.7 WEEKS	Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week
2	16.08.2017 – 05.12.2017	16 WEEKS	Total assistance per week: Nil – some tasks neglected
3	06.12.2017 – 23.01.2018	7 WEEKS	Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week
4	24.01.2018 – 25.04.2018	13 WEEKS	Total assistance per week: Nil – some tasks neglected
5	26.04.2018 – 07.06.2018	6 WEEKS	Bathing / Showering 1 hour p/w Personal Grooming 0.125 hours p/w Dressing 0.5 hours p/w Meal Preparation 3.5 hours p/w Laundry 1 hour p/w Bed making / Linen change 0.5 hours p/w Shopping 1 hour p/w Total assistance per week: 7.625 hours per week
6	08.06.2018 – current	64 WEEKS	Total assistance per week: Nil