Shahid v Alpha Trading Engineering Pty Ltd - [2021] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 00527

MUHAMMED SALMAN SHAHID (BY HIS ADMINISTRATOR STATE TRUSTEES LTD)	Plaintiff
v
ALPHA TRADING ENGINEERING PTY LTD	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 3, 4, 5 & 9 August 2021
DATE OF JUDGMENT:	9 September 2021
CASE MAY BE CITED AS:	Shahid v Alpha Trading Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 551

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PERSONAL INJURIES – Carbon monoxide inhalation — Duty of care — Reasonable foreseeability —Breach of duty — Implied term of bailment agreement — Whether plaintiff employee — Assessment of damages — Wyong Shire Council v Shirt (1980) 146 CLR 40 considered — Occupational Health and Safety Regulations2007.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	ADB Ingram QC with A Hill	Maurice Blackburn
For the Defendant	Dr IRL Freckelton QC with S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

A Background

The plaintiff was born in Pakistan on 5 February 1987 is now 34 years of age. He completed school in Pakistan and also completed some tertiary studies in that country, particularly a Diploma in Electrical Engineering and a Bachelor of Arts.

The plaintiff came to Australia in 2012 on a student visa which permitted him to work for 20 hours per week. He completed a Certificate IV in Front-line Management. For a period of 7 or 8 months he was earning about $500 per week working part-time in a restaurant in Carlton operated by family friends.

In mid-2013 the plaintiff commenced a Certificate III in Automotive Technology. If he had completed that certificate, and a certificate and diploma beyond, he would have been guaranteed permanent residency in Australia. If that had occurred, he would have been unrestricted in the work he could undertake in Australia.

The plaintiff had studied English in Pakistan and came to Australia with reasonable but not perfect English. Since suffering injury in 2013 he has tried to improve his English, including as a further route to obtaining permanent residency, but has not been able to. He is presently in Australia on a temporary protection visa and works casually as a static security guard.

In mid-2013 the plaintiff investigated becoming a taxi driver in taxis owned by the defendant or the parent company of the defendant, Capital City Taxis. For present purposes the entities were treated as one and the same.[1] It seems that the plaintiff intended to work night shifts.
[1]Transcript (‘T’) 27.

The plaintiff met with Mr Choudhary of the defendant and entered into a ‘bailment agreement’ dated 26 August 2013[2] (the ‘bailment agreement’). The relevant terms of the bailment agreement are reproduced later in these reasons.
[2]Exhibit A, Joint Court Book (‘JCB’) 400-402.

On 2 September 2013, another taxi driver, Sandeep Brar, was found dead in taxi M2081 owned and maintained by the defendant. Prior to his death, Mr Brar was in his 30s and apparently in good health. It was later determined that Mr Brar had died of carbon monoxide poisoning. That was not known on 2 or 3 September 2013.

The evidence concerning the events on the evening of 2 September 2013 will be referred to in greater detail later. For present purposes it is sufficient to note that at about 7pm that evening Mr Brar’s body was found in taxi M2081 which was parked in Box Hill. The police attended and later that evening released the vehicle into the possession of the defendant. The vehicle was then driven from the scene to the defendant’s depot in North Coburg.

From about 4am the following morning, 3 September 2013, taxi M2081 was driven during the day shift performed by another driver, Jeshandeep Singh.

The shift subsequent to that was undertaken by the plaintiff, commencing on the afternoon of 3 September 2013. That evening, the plaintiff was found unresponsive in taxi M2081 parked outside Crown Casino (the ‘incident’). It was later determined that he had ingested carbon monoxide. He suffered a heart attack, hypoxia and an acquired brain injury.

As I have indicated, it was later discovered that there were various deficiencies in taxi M2081, particularly a complete severance or rupture of the tailpipe from the rear muffler of the vehicle – shown in a photograph attached to these reasons as Annexure A.[3] It was ultimately uncontentious that, primarily from that rupture, significant quantities of carbon monoxide had seeped into the vehicle killing Mr Brar on 2 September 2013 and severely injuring the plaintiff on 3 September 2013.
[3]Photograph 8 within Exhibit B (JCB72).

The major issues in the proceeding were –

(a) the nature of any duty of care owed by the defendant to the plaintiff;[4]
[4]There was a related issue concerning any ‘duty’ arising in the nature of a term implied into the bailment agreement. However, the parties essentially treated the two issues as one. There was no argument separately directed to the issue of the implied ‘duty’ or its content.

(b) whether the Occupational Health and Safety Regulations 2007 applied as between the plaintiff and defendant;

(c) whether any such duties or statutory duty had been breached by the defendant; and

(d) the assessment of any damages.

In respect of the issue of duty, the plaintiff contended –

(a) primarily, that the nature of the duty owed as between the plaintiff and defendant amounted to a duty owed by an employer to an employee;

(b) if that were not so, then the duty was to be viewed as one as between either bailor and bailee or principal and independent contractor.

In an amended defence filed at the commencement of the trial, the defendant stated that it –

(a)admits it owed a duty to the plaintiff to provide him with a vehicle that passed compulsory annual roadworthy inspections as required by the Victorian Taxi Directorate.
(b)admits that it owed a duty to the plaintiff to provide him with a vehicle that was serviced and maintained at reasonable intervals and to a reasonable standard so as to avoid reasonably foreseeable risks of injury through its operation and use.
(c)admits that it owed a duty to the plaintiff to provide him with a vehicle that was repaired as required in a timely manner and to a reasonable standard so as to avoid reasonably foreseeable risks of injury through its operation and use.

As matters emerged, the central contention of the defendant was that no such duty had been breached because no risk of injury had been reasonably foreseeable,[5] and the defendant had otherwise provided the plaintiff with a vehicle that, it contended, was reasonably and properly inspected, serviced and maintained.
[5]Wyong Shire Council v Shirt (1980) 146 CLR 40 (‘Shirt’), 47.

The defendant also denied the application of the Occupational Health and Safety Regulations 2007.

B Witnesses

The plaintiff

The plaintiff gave evidence without the assistance of an interpreter. He tried his best to give evidence in English. His level of proficiency in English made his evidence a little difficult to follow at times. More significant, however, were the plainly apparent impacts of the plaintiff’s injuries. His sentences were sometimes incomplete and he was often lost for ideas or words. He was a very vague historian and witness generally. That said, he had a pleasant manner and he impressed me as a witness of truth who made every effort to give evidence without in any way embroidering his account.

The plaintiff gave evidence concerning his education in Pakistan and early period in Australia, which I have referred to above. He confirmed that prior to injury he socialised with friends and played social cricket and badminton. I did not get the impression that he had any pre-existing disabilities or illnesses.

The plaintiff gave evidence of meeting Mr Choudhary and entering into the bailment agreement. He was required to and did sign the bailment agreement in order to be able to drive the taxis.

The bailment agreement stated, relevantly, as follows –

This AGREEMENT (i.e. Bailment) made the 26^th day of August 2012 between Bailer (sic) (i.e. Owner of the Taxi) being _ _ _ _ _ _ _ of _ _ _ _ _ _ _ (Hereinafter referred as “Owner”) of the one part AND Baillie (sic) (i.e. The Taxi Driver) being M Salman Shahid of [REDACTED] (Hereinafter referred as “Driver”).
WHEREAS the said Owner consents to Driver to taking control and possession of the taxi. WHEREAS both the owner and the driver hereby wish to clarify that they agree on one of the following option as rental money for the Taxi shift (Day/Night) Driver will drive.
1) I the Driver agree on paying 50% + $5 (including GST) of the total taking per shift to the Owner I will drive. R
2) I the driver confirm that whether I will need safety screen during my shift I will drive. (Please select Yes Or No)Ā Yes/No
Also the Owner and Driver hereby wish to clarify the insurance excess payable in the event of an accident. Now this Agreement witnessed as follows:-
That it is hereby agreed that in the event of an accident when driver is determined at fault, Driver will pay the sum of $1000 (When the driver aged 25 years or more) to the owner as a part of excess contribution payable to the insurance company. WHEREAS if driver is less than 25 years of age, in the event of an accident when driver is determined at fault, Driver will pay the sum of $1250 to the owner as a part of excess contribution payable to the insurance company.
IT agreed that the will inform the owner about accident immediately and in case of driver at fault, Driver must have to pay his part of excess in 48 hours or as agreed and/or driver will delay/fail to pay his excess to the owner he will be responsible for any loss/damage (or claim of any kind arising) to the property or vehicle of third party and the taxi he is driving at the time of accident. Also in case when Driver will give false information about how Accident happened he will responsible for all expenses related to that accident including court cost if there is any.
IT is also agreed that driver will inform the owner immediately in case of license suspension from Vic Roads (VIC Driver’s License) of VTD (Driver’s certificate) or any other authority that can do so. In case if driver will continue driving with informing where legally he is not allowed, he himself will responsible for all the consequences arising because of such situation.

The agreement was signed by Mr Choudhary as ‘Owner of the Taxi’ and by the plaintiff as ‘Driver of the Taxi’. At that time the plaintiff had a driver card issued by the Victorian Taxi Directorate.

The plaintiff gave evidence of the substance of the arrangement. He was to be given a vehicle when he drove, it would be fully maintained by the defendant and he would need to return it with a full tank of petrol. He had to wear a uniform, which he bought.

The plaintiff worked the evening shift on 3 September 2013. No one told him that another driver had passed away in the vehicle the previous evening. The plaintiff was found unconscious in the vehicle outside Crown Casino. In respect to those events, he gave evidence that ‘I forget everything’.[6] He spent 14 days in the Alfred Hospital and then was in residential rehabilitation in Caulfield for eight months. He had to learn to speak and drive again. He lived in a transitional arrangement for a further two and a half months. He now lives with a friend in Glenroy.
[6]T56.

The plaintiff now takes blood pressure medication, occasional Panadol, Lipitor every evening and Micardis every morning for his heart. He is presently only obtaining treatment from his general practitioner in Coburg.

He gave evidence that before the incident his English was ‘perfect’. Since the incident he cannot now remember ’10 words’.[7] He finds it difficult to socialise. He has lost friends. Many of his old friends were taxi drivers. The incident was eight years ago and he needs a friend to assist him when ordering in a restaurant.
[7]T62.

The plaintiff gave evidence that he had participated in a potential arranged marriage in Pakistan in 2019. He gave evidence that the family of the bride talked with him and the marriage did not proceed.

He gave evidence concerning his memory, sleep, ability to read and energy levels. As I have indicated, the deficiencies in the plaintiff’s memory were quite apparent in the manner in which he gave his evidence. He said that prior to injury his memory was ‘perfect’.[8]
[8]T210.

The plaintiff gave evidence that he can currently work as much as he likes on the form of visa that he presently holds. He earns $21 per hour in security work. How much he works ‘depends on the work and depends on me’.[9] He said that without the automotive qualification that would have led to permanent residency it is ‘all useless’.[10] His friends that he came to Australia with are citizens now, but his own life is ‘all useless now’.[11]
[9]T212.
[10]T213.
[11]T214.

In cross-examination, the plaintiff was questioned concerning his sequence of visas and the basis upon which he was or would be proposing to remain in Australia. He agreed that when he was on student visas he could work for only 20 hours per week. He was on student visas until 2019.[12]
[12]T216.

It was put to him that he only drove as a taxi driver on two occasions, to which he answered ‘I don’t know’.[13] He had previously worked in the restaurant in Carlton for seven or eight months part time. He has been working in part-time security work since 2017. He said that he was not trying to get as much work as he could because he was tired.
[13]T217.

It became apparent in his evidence that since injury he had completed certain certificates and a Diploma in Automotive Technology. About all of that, however, he was quite vague. It was apparent that he completed the qualifications with some assistance from others and using Google.

He confirmed various aspects of the arrangement by reference to which he worked as a taxi driver. He did not receive superannuation, holiday pay or long service leave. He bought his own uniform and badge. He had to tell the company if he was involved in an accident or if something was wrong with the car. He worked as many hours as he wanted. He could take as many breaks or stop for meals as he wanted. It was up to him which passengers he took. He acceded to the suggestion that he had ‘a lot of freedom’ in the manner in which he did his work.[14]
[14]T231.

He confirmed that on the occasions on which he worked as a taxi driver he drove ‘any taxi’ and not a particular vehicle. He did not have a ‘boss’ or a supervisor. He was just told that there was a shift available. He said that he had a taxi, ‘that’s it’.[15] He said that he worked night shifts, although he could not remember how many. The depot of the company was in Coburg. He could pick up passengers who hailed him or get jobs via the GPS provided by Silver Top, which is a separate company.
[15]T232.

He was cross-examined in relation to working in security. He had worked in security work on one day for 10 hours. He thought that he would be able to work for 30 hours per week if the work involved was like the that which he was doing at the airport where he could sit. He had not worked in the previous three weeks. He gave some very vague evidence about having worked 20 to 25 hours per week in June, May and April. He did not think he could do more because he would get tired. In the course of this evidence he referred to pains in his lower back, although they were not related to his injury in the incident in 2013.

Various other employments or what in other contexts are sometimes called ‘suitable employments’ were put to him. To some he answered that he thought he could do them and to others he thought that he could not because they were ‘hard’ and he would be ‘tired’. In this section of his evidence the plaintiff appeared largely uncomprehending what was being put to him. I could not conclude on the strength of his evidence that he would be able to work any of these putatively ‘suitable employments’.

In re-examination, the extent of the plaintiff’s activity was clarified in that he said that he was ‘always at home’ and ‘sitting in the couch downstairs’.[16] He referred to headaches. He said that he could work in security because he did not have to ‘speak too much’.[17]
[16]T240.
[17]T241.

In respect of the frequency of his security work, he confirmed that he might work 20 or 25 or 30 hours per week once a month or perhaps twice a month. On the other hand, this week and last week he had not obtained any work at all: it was all ‘up to availability’.[18]
[18]T241-242.

He referred again to his difficulties with memory and his need to write things down.

Glen Dower

Glen Dower is a forensic officer employed by the Victoria Police Forensic Services Centre. He has been attached to the vehicle examination unit since 1993.

Mr Dower examined taxi M2081 on 7 October 2013 and took an extensive series of photographs. He prepared two reports.[19] The first was prepared for investigating police and the second at the request of the Coroner.
[19]Exhibit B.

Mr Dower gave detailed evidence by reference to his series of photographs. He explained the presence of various parts of the exhaust system of the vehicle, including the exhaust manifold and associated flanges.[20] At various points in his evidence he explained, by reference to the photographs, that the exhaust system of the vehicle had at some point been adjusted and worked upon. He was unable to say precisely when that had occurred, although it was somewhere between weeks and months prior to the incident.
[20]T78.

He conducted tests on the vehicle and was able to identify that there were various leaks in parts of the exhaust system. The leaks towards the front and middle of the vehicle were not regarded by him as contributory to the incident, as that part of the exhaust system was well under the vehicle and it was likely that any carbon monoxide would dissipate rather than access the vehicle.

Mr Dower’s sequence of photographs showed a point in the exhaust system towards the rear of the vehicle where the tailpipe had separated from the muffler: as depicted in the photograph attached hereto as Annexure A. By reference to that and other photographs, Mr Dower gave evidence that approximately two-thirds of the circumference of the tailpipe had cracked prior to the ultimate rupture and breakaway of the tailpipe from the rear muffler. There was also a crack at the point of connection with the middle muffler. That point was only a crack rather than a breakage. Between the broken tailpipe and rear muffler was a gap which Mr Dower estimated at about 80 millimetres or 8cm. The end of the tailpipe was out of place and not coming out of the bumper bar in the manner that it should. The tailpipe had been up against the bumper and worn and melted part of it away.[21]
[21]T94-100.

Mr Dower also examined the body of the vehicle. He identified various points at which there had been works conducted upon the vehicle and rubber ‘plugs’ or ‘grommets’ removed leaving holes from the part of the body behind the bumper and right rear tail light into the boot area. His tests showed that the most likely contributory source of carbon monoxide in the incident involving the plaintiff was from the point at which the tailpipe had broken away from the rear muffler which had caused carbon monoxide to accumulate in the cavities of the bumper and from there pass through the holes which he identified and into the boot from which it could then spread into the passenger cabin of the vehicle.

Mr Dower identified a point at which there had been poor welding at the rear of the first muffler. He considered the exhaust system of the vehicle to have been ‘in poor repair with poor state of service along with it’s had some very poor repairs in the past’.[22] He could see no recent repairs in the exhaust system.
[22]T89-90.

Mr Dower explained the difference between a book service and a roadworthy inspection. A book service may not necessarily include an examination of the exhaust system, but a roadworthy inspection should include a full exhaust inspection. A roadworthy certificate is supposed to last for 40 days. An exhaust in an older vehicle is at risk of cracking because, as the exhaust system gets hot and cold, cracking can develop as a result of fatigue. In Mr Dower’s opinion a crack should have been picked up if it was apparent, and the exhaust system in the vehicle rendered it unroadworthy.

Mr Dower gave evidence that normally the cabin is sealed from the operation of the exhaust system in the undercarriage of the vehicle. With a sealed cabin an exhaust leak ‘shouldn’t be a problem’.[23] Mr Dower examined the areas in which missing plugs or grommets appeared and noted that his smoke tests had identified that these were the likely points of ingress for carbon monoxide from the broken exhaust system.
[23]T97.

Mr Dower gave evidence concerning the broken tailpipe and the damage which that tailpipe had effected to the plastic part of the bumper. In his view, the damage to the bumper from the tailpipe must have occurred over a period of time. He was unable to say exactly how long, although he considered it to have occurred over ‘some time’ and ‘longer than two weeks’.[24]
[24]T101.

Mr Dower gave evidence concerning the crack in the tailpipe which had broken away from the rear muffler. As I have noted, there was an evident crack in approximately two-thirds of the circumference of that broken tailpipe and then a jagged section from which it was apparent that the tailpipe had ultimately broken away from the rear muffler. He considered that it must have been broken for ‘at least a couple of drives’.[25]
[25]T104.

Ordinarily, the various holes in the bodywork of the rear part of the vehicle are sealed. The predominant reason for doing so seems to be to prevent the entry of moisture into the vehicle, although Mr Dower gave evidence that such sealing was also to prevent the entry of fumes.

Mr Dower gave evidence by reference to the photographs showing a complex of holes together with a curled rubber vent through which, in his opinion, it was likely that carbon monoxide has passed. In his opinion, the flexible rubber of the vent had curled after the vent had been painted yellow and then the paint had dried and contracted causing the rubber to warp outwards. Ordinarily, as he explained, the vent which passes into the boot area of the vehicle should seal.

In cross-examination, Mr Dower confirmed his training and some aspects of the circumstances by which he came to prepare his reports. There was no challenge to his expertise. He confirmed that he endeavoured to be ‘objective’ in approaching his tasks.[26]
[26]T144.

Mr Dower was cross-examined by reference to some of the photographs to which he had been taken in examination-in-chief, and one or two to which he had not been taken. He confirmed that the tailpipe could not be seen in photograph 2.[27] Photograph 8 – which is Annexure A to these reasons – showed that the tailpipe had been ‘tucked up and hidden’. The only way to have seen the tailpipe ‘would be to put it [the vehicle] up in the air or to get down and have a look’.[28]
[27]T145. See, JCB66.
[28]T146.

He was asked questions about roadworthy testing. He is no longer a licensed roadworthy tester, but had conducted roadworthy tests in the past. At various points in his evidence in the course of cross-examination he referred to the conduct of ‘dodgy’ roadworthies.[29]
[29]For example, T160.

He confirmed that in the course of a roadworthy test it would be usual to check the exhaust system including by grasping it and by listening to it carefully. He said that if the exhaust system looked ‘shabby’ the examiner might put the vehicle on a hoist to look at all points of the system.

He was asked questions about the ‘crack’ and ‘rupture’ or ‘fracture’ of the tailpipe from the rear muffler of the vehicle. The crack ultimately caused the fracture. Mr Dower gave evidence that the fracture had occurred ‘fairly close’ to 2 September,[30] but that the crack had likely been there for ‘some time’.[31]
[30]T164-165.
[31]T168-169.

Mr Dower later confirmed that that was so because of the nature of the crack and the soot appearing on the edges of it. In respect of that evidence, later in re-examination, Mr Dower confirmed that the crack could have been there at the time at which a roadworthy inspection of the vehicle was performed in July 2013, but that it also may not have been there at that time.[32]
[32]T201.

Mr Dower was otherwise cross-examined in relation to various matters which arose out of the examination-in-chief, including welding to the front muffler, the insignificant leaks at other points in the exhaust system, the fracture of the tailpipe, the ingress of fumes into the bumper area and the passage of fumes from the bumper area into the boot via the holes and vents. Mr Dower confirmed that the passage of carbon monoxide that had evidently led to the injuries suffered by the plaintiff had come about by reason of a ‘combination of factors’.[33]
[33]T180 & 185.

In the course of cross-examination, Mr Dower confirmed that he had conducted a careful examination of the vehicle and that his examination was likely more than that conducted by a roadworthy certificate examiner. On the other hand, he gave evidence that the purpose of a roadworthy examination is to evaluate flaws and faults in a vehicle and to determine whether it is not safe to be on the road. Mr Dower gave further evidence concerning the general manner in which a roadworthy examination should be undertaken. In the course of that evidence, he confirmed that the cracking and fracture of the exhaust system was common in Ford Falcon vehicles such as this one.[34] He confirmed in re-examination that he had himself owned a Ford Falcon and that it had happened with his car, although he had also seen it in other Ford Falcons.
[34]T159 & 187.

He confirmed by reference to photograph 37[35] that the tailpipe had been repositioned by him; it earlier having been hidden behind the bumper. The photograph shows the bumper bar and the appearance of the tailpipe in a position that could then be seen. Prior to that, it would not have been able to be seen.[36]
[35]Exhibit B (JCB101).
[36]T145-146 & 190-191.

In re-examination, Mr Dower gave evidence he had seen broken tailpipes in other cars.[37] He said that if the tailpipe had been fractured at the time of the roadworthy inspection in July 2013, he would expect that it would have been repositioned and that it would have been spotted ‘pretty quickly … doing your walk around’ and particularly if the vehicle had been on a hoist.[38]
[37]T196.
[38]T199.

Mr Dower also confirmed that the condition of the vent flaps and holes, if detected in the course of the roadworthy examination (and they would not usually be so detected), would be sufficient to have rendered the car unroadworthy.[39]
[39]T202.

Enzo Alfonsetti

Mr Alfonsetti confirmed that he was in management at Energy Safe Victoria and had been for several years. He holds various qualifications including a Bachelor of Engineering (Mechanical). His expertise as a witness was not challenged and his statement and its attachments were received into evidence.[40]
[40]Exhibit C.

Mr Alfonsetti had conducted or supervised the conduct of tests upon taxi M2081, particularly upon the exhaust system in order to determine the levels of carbon monoxide that might have been present in the cabin of the vehicle at the time of the incident. His reports include various tables showing the concentrations revealed on testing.

Carbon monoxide is potentially extremely dangerous and can cause serious injury or even death. As a result of the testing, after about 10 minutes or so, they were seeing readings of about 400 parts per million of carbon monoxide in the taxi.[41] Mr Alfonsetti stated that prolonged exposure at that kind of level ‘will potentially result in fatality’ and, at ‘the very least, irreversible injury’.[42]
[41]T223-224.
[42]T224.

Mr Alfonsetti gave evidence concerning the publicity undertaken by Energy Safe Victoria in order to seek to educate the public concerning the dangers presented by the ‘silent killer’ that is carbon monoxide.[43]
[43]T226.

There was no cross-examination.

Professor Stephen Davis

Professor Davis is a neurologist in practice at Royal Melbourne Hospital. He saw the plaintiff for medico-legal purposes and prepared reports dated 20 October 2020 and 8 July 2021.[44]
[44]Exhibit D.

In evidence, he confirmed that the plaintiff had suffered major oxygen deprivation to the brain as a consequence of ingestion of carbon monoxide. He suffered a cardiac arrest following falling into a ‘deep coma’. It was a ‘life-threatening situation’.[45] The plaintiff’s cardiac circulation was restored but ‘he’d had major oxygen deprivation to the brain’.[46] The plaintiff suffered ‘hypoxic brain injury’ later confirmed on MRI.[47] Professor Davis gave evidence concerning Glasgow Coma Scores. After the incident the plaintiff’s score was 3, which Professor Davis described as ‘absolutely non-responsive neurologically, so nothing’.[48]
[45]T247.
[46]Ibid.
[47]T249.
[48]Ibid.

In short, the plaintiff had suffered a primary brain injury confirmed on investigation. Subsequent to such an event there is ‘always’ a psychological element, but his presentation now is mostly due to the brain injury rather than any psychiatric basis.

From rehabilitation Professor Davis thought that the plaintiff had done ‘reasonably well’. He said that ‘you see some patients … with this level of injury who end up in a nursing home even at this age … unable to do anything’.

Professor Davis identified ‘organic fatigue’ as one of the consequences of such an injury. He said that it was ‘very typical of hypoxic brain injury’.

Professor Davis said that ‘there’s no doubt that he’s had a severe brain injury and been left with significant deficits’.[49]
[49]T258.

In respect of capacity for work, Professor Davis was referred to the plaintiff’s ‘limited security work’ and Professor Davis thought that the plaintiff’s capacity for work was ‘incredibly limited’. He did not think that the plaintiff could return to work in a taxi or that he was able to be trained to perform any skilled work. He said that ‘most people in this context would be virtually unemployable’.[50]
[50]T259.

Professor Davis did not anticipate much in the way of either deterioration or improvement. He thought that the plaintiff would remain stable cognitively and would have a normal lifespan.

In cross-examination, Professor Davis confirmed that the fact that the plaintiff had regained his driver’s licence showed that he had made ‘significant progress’.[51] Reference was also made to the certificates and diploma which the plaintiff had obtained subsequent to injury, with assistance.
[51]T261.

Reference was also made to the plaintiff’s casual work over four years as a security guard. Professor Davis was of the view that the plaintiff was physically impaired, but that he had had a positive response to a very serious brain injury. However, he also said that the plaintiff ‘has been left with very significant deficits which are absolutely undoubted’.[52]
[52]T264.

In re-examination, Professor Davis confirmed that the presentation of the plaintiff with ‘cognitive fatigue’ and an almost ‘apathetic’ state was consistent with ‘brain fatigue’ which is consistent with the injury.[53]
[53]T264-265.

In his first report, Professor Davis made the following observations concerning the plaintiff –

He was found to be pleasant and cooperative during the interview and he had significantly slowed information processing speed, great difficulty with idea generation, moderate difficulties with immediate recall of visual or verbal information.

Albeit in medical language, Professor Davis’s observations were consistent with my lay observations of the plaintiff giving evidence.

I asked Professor Davis about the likely presentation of the plaintiff prior to injury and he confirmed that there was nothing to suggest that the plaintiff had suffered cognitive impairment prior to injury. He confirmed that the vagueness of the plaintiff in evidence was consistent with his brain injury.[54]
[54]T266.

Dr James Rowe

Dr James Rowe is a specialist occupational physician. He saw the plaintiff for medico-legal purposes and prepared a report dated 10 November 2020.[55] In evidence, Dr Rowe confirmed that he had been in practice for at least 50 years.
[55]Exhibit J.

In respect to the presentation of the plaintiff, Dr Rowe considered him to be ‘straight up’, meaning that he had no reason to doubt the plaintiff’s reported symptoms.[56]
[56]T269.

In respect to the presentation of the plaintiff more broadly, Dr Rowe stated that he did not have a ‘good brain’. In his opinion, the plaintiff had suffered a ‘serious head injury’.

In his report, Dr Rowe had expressed the opinion that the plaintiff had no capacity for employment. That opinion was based in a history of him working for a ‘brief amount of time as a security officer’.

Dr Rowe was informed of the evidence concerning the plaintiff’s casual but passive security work over four years and essentially adjusted his opinion. The gravamen of his evidence was that the plaintiff had capacity to perform the work that he was and has been performing but no other work. He considered the plaintiff to be permanently disabled.[57]
[57]T271-272.

In cross-examination, Dr Rowe confirmed that he had not been aware that the plaintiff had regained his driver’s licence, which he described as a ‘pretty good effort’.[58] He had been aware of the plaintiff’s studies since the incident, albeit conducted with ‘special assistance’. He confirmed that his opinion now was that the plaintiff had ‘some residual capacity for basic employment’.[59]
[58]T273.
[59]T274.

In re-examination, Dr Rowe confirmed his opinion that the plaintiff did not have capacity for any other form of work beyond, in effect, that of a ‘static security guard undertaking no active surveillance’ that he has been performing over the last four years.[60]
[60]Ibid.

Dr Benjamin Harris

Dr Harris is a neuropsychologist. He saw the plaintiff for medico-legal purposes and prepared a report dated 15 June 2021.[61]
[61]Exhibit H.

In evidence, Dr Harris confirmed that the plaintiff had presented in a friendly and cooperative manner and was not ‘obfuscating’. Dr Harris considered that the plaintiff had evident difficulty and was ‘quite mentally slowed’. He was also asked to give evidence with reference to the Glasgow Coma Score of 3. He confirmed that it is ‘as low as it gets’. A score of that kind is very likely to be indicative of a ‘severe brain injury’.[62]
[62]T277-278.

Dr Harris outlined the tests which he had performed. He referred to the fact that the plaintiff had completed year 12 at school in Pakistan and proceeded to tertiary study which he had also completed. He estimated that the plaintiff had had at least an average normal intelligence. The fact that the plaintiff was not native in English might affect some of the testing performed, but even taking that into account Dr Harris considered the plaintiff to have been in at least the ‘upper end of the low average range’ prior to injury.[63]
[63]T279.

Prior to injury, Dr Harris took a conservative estimate of the plaintiff’s IQ at 89, based upon the impact of English not being his first language. Not adjusting for English language skills, Dr Harris predicted a pre-injury IQ of 108. [64] It seemed to Dr Harris that prior to injury the plaintiff had been ‘a well-functioning individual’.[65]
[64]T282.
[65]T284.

On testing, Dr Harris determined that the plaintiff’s present IQ score was 60, which is below the first percentile and ‘well below a university educated person’.[66] Dr Harris confirmed that intellectual disability is an IQ of less than 70, and a score of 60 is ‘significantly below’ that. He said that someone with an IQ of 108 was ‘roughly performing better on measures of intellect compared to sort of 60-odd per cent of the population’. He confirmed that ‘there’s a huge difference there’. An IQ of 60 is ‘well below 99 per cent of the population’.[67]
[66]T281.
[67]T288-289.

Dr Harris considered that the plaintiff was not likely to change neurologically. Dr Harris considered that the plaintiff had suffered a significant impairment in his cognitive function with multiple areas of cognition reduced. It would affect him in ‘many ways’. He has suffered severe fatigue as a consequence of his injuries. He had suffered two car accidents also related to his injuries.[68]
[68]T285.

In cross-examination, Dr Harris confirmed that he was aware of the plaintiff completing certificates and a diploma with assistance since he had suffered his injury. He was also aware that the plaintiff had returned to driving, albeit that he had been involved in two car accidents that he had caused. Dr Harris did not know that the plaintiff drove regularly. Dr Harris did know that the plaintiff had performed casual security work over a period of about four years. He confirmed that the plaintiff had a basic work capacity involving ‘very cognitively undemanding’ tasks.[69] This was quite different to his prior capacity. He had at least average premorbid abilities but has suffered ‘severe deficits’ as a consequence of the injury.[70]
[69]T288.
[70]T290.

Nasir Choudhary

Mr Choudhary trained as a pharmacist in Pakistan. He came to Australia in 1998 and has been operating taxis since 2001. He has been the owner of Capital City Taxis and related corporate entities since 2010. That business presently has three other employees but at the time of the incident in 2013 had seven. At that time it had a fleet manager, Imran Siddique, and owned 55 to 57 taxis.

Mr Choudhary gave evidence concerning the bailment agreement made with the plaintiff in August 2013. The agreement was the same for all drivers. Mr Choudhary said that the plaintiff was not an employee; he was ‘self-employed’.[71] The defendant did not pay for superannuation, worker’s compensation, long service leave or sick leave. He did not direct the drivers how to drive; where they did their work was ‘up to them’.[72]
[71]T297.
[72]T298.

The plaintiff had only undertaken two shifts for Mr Choudhary prior to his injury. The work for drivers came from Silver Top or from the street. It seems that Silver Top Taxis installed the radio system and safety equipment. There was a commercial arrangement between the defendant and Silver Top. The plaintiff had to pay for his clothes and badge.

A roadworthy certificate was obtained every year for each of the taxis. The certificates were issued by Mr Espositos who was nearby. Mr Choudhary said that Mr Espositos was ‘very good’ and that he checked vehicles thoroughly inside and out. Mr Choudhary said that Mr Espositos ‘never let go anything’.[73]
[73]T300.

Mr Choudhary was taken to the roadworthy certificate with respect to taxi M2081 issued by Mr Espositos in July 2013.[74]
[74]Exhibit 3.

Mr Choudhary confirmed that at that time he employed two mechanics to fix mechanical defects, Shivan Dovski and Mahmoud Aboud. The mechanics were at the Capital City Taxis depot in North Coburg. They had a workshop. Each taxi was serviced every 22 days, as in that period each taxi would usually cover about 10,000 kilometres.

Mr Choudhary also gave evidence concerning an employee spray painter or panel beater named Walid Taleb. At one point it seemed that that employee was working with Capital City Taxis at the time of the plaintiff’s injury. Later in Mr Choudhary’s evidence it appeared that the spray painter or panel beater had ceased working with Capital City Taxis in 2012. Mr Taleb did only minor repairs. If ‘big’ repairs were required, the vehicle would be sent to Barakat Motors which was nearby.

Mr Choudhary was taken to a significant bundle of invoices relating to service work conducted on taxi M2081 during 2012 and 2013.[75] The work was done by the employee mechanics at Capital City Taxis, albeit that the invoices were issued from ‘Alpha Trading Engineering Pty Ltd’ to ‘Alpha Trading Engineering Pty Ltd’. When asked why there were so many repairs to taxi M2081 in 2013, Mr Choudhary said –

It could be the reason that we’re experiencing problems or driver is telling us or during the service we see the problem. That’s why we have so many repairs.[76]

[75]Exhibit 1.

[76]T305.

Mr Choudhary said that it was normal for such work to be required on the taxis and that, in effect, every taxi was like that. He said –

When driver complains something, we just bring it in, call it in and check whatever it need to do we just straight away pick up and do some additional things when we can see and try to make it roadworthy.[77]

[77]T306.

In respect of more extensive panel beating work, that would be done by a Mr El Ahmed who, it seems, was the brother-in-law of Mr Taleb. Mr El Ahmed was not employed by the defendant.

Mr Choudhary was taken to forms relating to panel work performed on taxi M2081 in March 2013 by Mr El Ahmed.[78] The report form itemised the work. Items 1, 2 and 3 were performed by Mr El Ahmed. Item 4 was done by ‘our mechanics’. Mr Choudhary said that he was ‘100% confident’ that the work was properly done by Mr El Ahmed, albeit that in cross-examination it emerged that he did not know what repairs had been undertaken on that occasion other than a repair to the right hand quarter panel.[79]
[78]Exhibit 2.
[79]T310 & 335.

This is an instance of several aspects of Mr Choudhary’s evidence that caused me to have concerns about his reliability as a witness. He had a tendency to answer in absolute terms that very likely amounted to overstatement. I gained the impression that significant parts of Mr Choudhary’s evidence amounted to a reconstruction or rationalisation of what he had come to think he would have thought, said or done in particular circumstances. In truth, I gained the impression that he had little true memory of critical events.

Mr Choudhary gave evidence that what became taxi M2081 was a 2009 Ford Falcon purchased by him second-hand in 2011 and then painted yellow.

Mr Choudhary confirmed that Mr Brar was one of the drivers for Capital City Taxis in 2013. He had driven at an earlier time, left and then come back and started driving taxis again.

On 2 September 2013, Mr Brar died while sitting in taxi M2081. Mr Choudhary and Mr Siddique attended the scene in Box Hill at about 8 or 9pm. Mr Choudhary said that Mr Brar had been in his 30s and ‘quite healthy and quite normal’.[80]
[80]T314.

Mr Choudhary was told by a ‘lady police constable’ that the CCTV footage internal to the taxi showed that Mr Brar was talking to someone on the telephone when he died. He said that the police had said of Mr Brar that ‘most probably it’s a heart attack’ and that it had not been suicide.[81]
[81]T314.

A short time later in his evidence, Mr Choudhary said: ‘I was clearly told by the police that it might have heart attack’. It did not occur to him that there might be anything wrong with the vehicle. He said the police had said ‘it looks like it’s a heart attack, so didn’t come in my mind anything about the car’.[82]
[82]T315.

Mr Choudhary gave evidence that the body was removed from the vehicle and the ‘lady constable’ released it to him.[83] That was late in the evening.
[83]Ibid.

Mr Siddique drove the vehicle from Box Hill to the defendant’s depot in North Coburg. Mr Siddique did not report any problem with it. If he had, the vehicle would have been reported and fixed. Mr Choudhary said –

We were just thinking that he [Mr Brar] was very young person and we were very sad that he died of heart attack and we were just keep on thinking what went wrong and just he has some underlying cause how heart attack happened. All those questions were in our minds.[84]

[84]T316.

Mr Choudhary also said –

Next day it [the vehicle] was driven, because Imran Siddique did not report anything and the problem was because of the heart attack, he died of heart attack, so we thought everything is all right, so we give car to the day driver.[85]

[85]Ibid.

That evidence is an example of the tendency to reconstruction and rationalisation referred to earlier. I did not get the impression that Mr Choudhary and Mr Siddique actually conducted a conversation in which they had done much beyond wonder what had happened to Mr Brar.

That tendency was again evident when, later, Mr Choudhary was asked whether he had examined the vehicle after the death of Mr Brar and said ‘no’. When asked why, he said: ‘because we were quite convinced that the death is because of the heart attack’.[86]
[86]T318-319.

Mr Choudhary did not know what had happened with the body of Mr Brar, save that it was taken by ambulance. No one spoke to him about the involvement of the Coroner.

The next morning the vehicle was driven by a ‘day driver’ named Jeshandeep Singh. Normally the day shift would start at 4am. As to whether Mr Singh reported any issue or problem, Mr Choudhary said ‘not that in my knowledge, no’.[87]
[87]T317.

Mr Choudhary said that at about 7pm on 3 September 2013 he was again called by Mr Siddique and told that ‘the night driver’ had been found unconscious parked in the Crown Casino rank.[88]
[88]Ibid.

Mr Choudhary said that he was ‘unable to understand what has happened’. Some while later he was told that ‘it might have carbon monoxide inhalation’. That had not occurred to him before.[89] Mr Choudhry said that it was ‘beyond my thinking’ that Mr Brar or the plaintiff could have died or been injured by reason of carbon monoxide in the vehicle.[90]
[89]T318.
[90]T319-320.

In cross-examination, Mr Choudhary was asked many questions concerning the painting of taxi M2081 from white to yellow. At one point he said that he not aware of the rear rubber vents behind the tail-lights.[91] At another point, he said that he was aware of the vents.[92] He then said that he did not know that ‘at that time’. When asked about when he first knew of the vents he said ‘I don’t remember’.[93]
[91]T321.
[92]T322.
[93]T323.

When asked whether the vents had been painted over by his employee, Mr Choudhary said ‘maybe’.[94] Mr Choudhary said that Mr Taleb had painted the whole car yellow. When then asked about the vents being yellow, he said ‘it’s not in my knowledge’ and he was not sure whether they had been painted by Mr Taleb.[95]
[94]T323.
[95]T324-325.

He was asked whether he had instructed that the ventilation flaps behind the rear tail-light be painted and said that he did not instruct that and that he did not know that it had been done. He said that he left it up to the original painter or repairer.

Mr Choudhary was shown photograph 50 depicting holes in the bodywork of taxi M2081 behind the tail-light.[96] He gave evidence that in that position there was normally a bracket fitted to fit the rear bumper bar. He was asked whether there were normally rubber devices in the holes to seal them and he said that he was not a panel beater and ‘not sure’.[97]
[96]Exhibit B (JCB114).
[97]T328.

He was asked about the bodywork performed on the vehicle in March 2013. He confirmed that there was a repair to the rear quarter panel but that the rear bumper and tail-light were replaced. He confirmed that the fourth element of the work at that time had been done by his mechanic at the depot. There was in the course of this part of the cross-examination quite a lot of confusing questions and unresponsive answers.

Mr Choudhary was asked if he knew whether Mr El Ahmed was qualified either in Lebanon or in Australia and he said he did not know. He said that he had seen him working and that was why he had called him.

He was cross-examined by reference to a statement made by Mr El Ahmed that referred to the purchase of clips.[98] He said that purchasing was Mr Siddique’s job and that the references to Mr Choudhary in the statement were maybe a reference to his business rather than himself personally. This led to queries about his records which led to a call for production.
[98]Exhibit M.

Mr Choudhary was asked questions about the sequence of invoices relating to work on taxi M2081. He confirmed that he had internal staff that he employed to work on vehicles. Their names were Dovski and Aboud. There was also a Mr Taleb who worked as a panel beater but Mr Choudhary believed that he ceased in 2012 because of his own injury claim. After he left, Mr Choudhary used external panel beaters.

He was asked about the use of Mr El Ahmed as a panel beater in March 2013. He said that he worked as a ‘contractor’.[99] Mr El Ahmed came and worked at Mr Choudhary’s premises and used his equipment in order to perform the repair. Mr Choudhary did not think it was necessary for Mr El Ahmed to have used the hoist.
[99]T355.

Mr Choudhary was asked about the death of Mr Brar on 2 September 2013. He did not remember whether he had investigated the vehicle. He did not ascertain whether a medical practitioner had assessed how Mr Brar had died.

When asked about Mr Brar’s health prior to death, Mr Choudhary said ‘I’m not a doctor, so I cannot say on this’. I then asked him about aspects of his evidence, including in the passage that follows –

So when you’ve said today that you’re not a doctor, and you can’t say, you’re not trying to qualify the evidence that you gave yesterday, are you? - - - Sir, I’m just saying that he – I’m thinking that he’s trying to get my opinion that he might – he can be suffered by heart attack or not. So that’s what I’m trying to provide into the thing. By normal looking he was looking all right. He never discussed any of this health thing. He was quite healthy.

Okay. And you said that you didn’t investigate the vehicle. Why was that so? - - - Because at the time when this incident happened police told us it could be heart attack. So it was not in my mind that something happened because of the vehicle to him. That’s why we did not investigate the vehicle at all.

You didn’t know what had happened to him, did you, for sure? - - - All we understood at that time, sir, police told us that might have heart attack.

Might? - - - Yes, sir.

The police aren’t doctors, are they? - - - But they were thinking it might have had heart attack. That’s what they said.[100]

[100]T358.

Mr Choudhary then said ‘we thought he has heart attack so it’s nothing to do with the car’.[101] He agreed that he had accepted as a fact what the police told him about the reason for the death.
[101]T359.

Mr Choudhary was then asked further questions concerning the repairs undertaken by Mr El Ahmed in March 2013, specifically with reference to the holes appearing behind the tail-light. Mr Choudhary confirmed that ‘we’ would have supplied the parts. He said again that he did not know that the holes were there or that the flaps of the vent had been painted.

He was asked about the roadworthy certificate completed by Mr Espositos in July 2013.[102] He did not personally know whether measures had been taken to inspect the exhaust system of the vehicle. Mr Choudhary said that if an exhaust has a crack you can clearly hear noise.
[102]Exhibit 3.

As to the mechanics in the depot, Mr Choudhary said –

So mechanic – it is the responsibility of the mechanic, once car comes into the shop, when they lift up, they always go through everything, they check everything, underneath, inside, outside, and whatever needed to repair they do it.[103]

[103]T363.

Mr Choudhary also said that the roadworthy inspector would ‘definitely’ pick a crack up and ask for it to be repaired.

In re-examination, Mr Choudhary gave further evidence about the repairs performed by Mr El Ahmed in March 2013. He described the work undertaken by him as a ‘very easy job’.[104] He said that he believed that Mr El Ahmed could do the work and had done it in the past. He did not know whether Mr El Ahmed had formal qualifications but, in his view, it was not necessary for him to use a qualified person.
[104]T367.

He gave further evidence concerning the ordering of parts and he said that all of his fleet was of the same Ford type and he normally requested brand new parts from Ford.

He was asked by me about the night on which Mr Brar’s body had been found, and gave the following further evidence –

So can you just tell me in your own words why it was you didn’t look at the vehicle? - - - Because I’ve been told that it might be a heart attack. So did not come into my mind that anything happened to him because of the vehicle. And, secondly, Mr Imran Siddique drove from Box Hill to our depot, he did not mention any problem or anything, otherwise he will let me know that the vehicle has some problem, we need to fix that.

But isn’t that after? Mr Imran is driving it after it’s been out at Box Hill or from Box Hill, isn’t he? - - - Sir, from Box Hill to my depot.

Okay. So did you think about looking at it at your depot? - - - No.

Did you go back to the depot that night? - - - I came with him and then I – we park car in the depot and I drop him at home.

And is the position that the car was back on the road at 4 o’clock that next morning? - - - I think so, yes, sir.

Can you think of any reason why it couldn’t have been looked at, the vehicle? - - - Because the reason of his death was his medical condition. That’s why it did not come into my mind that something – could be something wrong in the car and that can have some problem.[105]

[105]T369.

Mr Choudhary thereafter stated that no-one had raised anything with him about the vehicle and that if they had he would ‘obviously’ fix it and ‘make sure it is safe’.[106]
[106]T370.

There were aspects of these passages of evidence that, again, presented as something of a reconstruction and rationalisation of the events concerned rather than as true memory.

James Espositos

Mr Espositos is a qualified motor vehicle mechanic and licensed to conduct roadworthy inspections since 1994. He estimated that he had conducted thousands of roadworthy inspections.

Mr Espositos was taken to his roadworthy certificate from July 2013.[107] He explained the process by which there was a first test in which defects were listed. It did not mean anything that he had not marked all of the boxes in respect to that test. He wrote down a list of what the defects were and what needed to be done. He explained that in the second test each of the identified items would be checked and ticked. He said that the vehicle would be in a roadworthy condition when it left his premises.
[107]Exhibit 3.

He said that in the first test there would be an initial check of the boot, door seals, seatbelt, heater, air conditioner, decals, tariff light, engine mounts and a brake test. He said that the vehicle would be driven to see if there were noises. He said that the vehicle would be lifted up on a hoist and checked underneath in respect to oil, tyres, brakes, suspension, steering and exhaust. It was a visual check, although he would check some things with his hands. Generally, the vehicle would not be running on the hoist as that could be risky, although he did have to do it sometimes.

In respect of exhaust leaks, he said that you can hear it when driving. He said that there would be an abnormal ‘puffing noise’, but qualified his evidence to say that it could depend upon where the leak is in the exhaust system.[108] He was taken to the photograph of the underside of the vehicle in question, namely Annexure A to these reasons.[109] Mr Espositos said that it was very common in this kind of vehicle for there to be cracks behind the first muffler, or what he described as the resonator. He said that these were the most audible cracks. If there were carbon on the exhaust you would be able to see the leak.
[108]T378-379.
[109]JCB72.

He was asked about the third muffler near the tailpipe and whether a leak at that part could be audible and he said ‘not necessarily’ because of the second large muffler between the front and rear mufflers.[110]
[110]T380.

He confirmed that there were two ways in which he goes about checking a vehicle, namely what he hears and what he sees. He confirmed that sometimes he runs his hand around the exhaust system looking for cracks. In respect of the photograph showing the broken tailpipe, he said that he had ‘never seen anything like it’.[111]
[111]T381.

If there were a crack between the first and second mufflers, it would definitely be a defect. He confirmed that that was part of the VicRoads guidelines.

He was asked questions relating to other photographs. He did not consider other photographs of the exhaust system to be ‘abnormal’.[112] In respect to an exhaust, he confirmed that he was looking for any leaks and usually a ‘hole’ or ‘major crack’.[113]
[112]JCB90, 91.
[113]T383.

He was asked how long it would take for a crack to develop into a fracture and he said that he had ‘no idea’. He said that he could detect a leak when he could hear it and see it.[114]
[114]T384-385.

He was taken back to the roadworthy certificate. He said that where the exhaust and emission system had been ticked, that meant that everything was ‘roadworthy’. He said that ‘if there are no leaks, I don’t defect the vehicle’.[115]
[115]T385.

There was no cross-examination.

Shivan Dovski

Mr Dovski gave evidence that he is a qualified mechanic and has been employed by Capital City Taxis since 2007. He works at the depot at 88 Bakers Road, Coburg North. In 2013 he also worked with ‘Mahmoud’. Sometimes there were apprentices and ‘Job Ready’ people.[116]
[116]T392.

He was asked about the system for servicing and gave evidence that a taxi fault report form would be completed and given to the mechanics and that they would attend to the items. He said ‘we check other things thoroughly’.[117] He said that he would target whatever was on the form. If there was something that was not on the form he would notify the office and ‘take it from there’.[118] He said that in a service he would thoroughly check the car, do whatever needed to be done on the list and add problems the car might have.
[117]T395.
[118]T396.

He confirmed that the system was that taxis would be serviced every 22 days which was roughly every 10,000 kilometres. After the service of a taxi was complete, then an invoice would be generated. He confirmed that during a service the vehicle would be put on the hoist.[119]
[119]T398.

He was taken to Annexure A, showing the underneath of the vehicle and broken tailpipe. He confirmed that various other parts of the car would be checked in the course of a service, including the exhaust. In respect to the broken tailpipe, he said ‘it’s completely visible; it’s broken’. He said that it would be able to be heard without lifting the car as it would ‘make noise’. He said he would ‘totally fix it, yeah’. [120]
[120]T400.

Mr Dovski was thereafter taken to various invoices and, ultimately, to the roadworthy certificate. In general terms he was unable to remember the particular works performed.

In cross-examination he was asked some questions about the statement that he had given to police. He said that they would target the problems listed in the taxi report form. He would not remember the taxi numbers. He does not remember anything about this particular taxi.[121]
[121]T406.

Further evidence

In respect of the issues of injury and damage, the plaintiff also tendered into evidence an outpatient neuropsychological report[122] and the reports of Associate Professor Yan[123], Drs Chow and Audehm[124], Dr Strauss[125], Dr Gibbs[126] and Associate Professor Stark.[127] I have read and considered that further material. It is unnecessary to set out the substance of it.

C The parties’ submissions

[122]Exhibit E.

[123]Exhibit F.

[124]Exhibit G.

[125]Exhibit I.

[126]Exhibit K.

[127]Exhibit L.

The defendant

Senior counsel for the defendant submitted that the evidence did not disclose that the plaintiff was an employee of the defendant. He pointed to those authorities concerning the indicia of employment and emphasised the need for a right to control.[128]
[128]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Hollis v Vabu (2001) 207 CLR 21, Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2020] VSCA 154.

Senior counsel submitted that it was a question of fact and degree involving an analysis of the indicia of control. He said that the fact of the bailment agreement was important and he pointed to the evidence of the witnesses, particularly Mr Choudhary, concerning both the agreement and the circumstances in which the plaintiff performed the task of taxi driver on only two occasions. Senior counsel submitted that it was, in reality, a sub-contracting arrangement such that the plaintiff should properly be regarded as in the position of an independent contractor.

In the course of submissions, senior counsel for the defendant acknowledged that in respect to an independent contractor it could be concluded that the defendant had a duty to take reasonable care to avoid reasonably foreseeable and real risk of injury.[129] In that, senior counsel for the defendant came to emphasise that risk of injury was not reasonably foreseeable to the defendant at what he identified as being four critical ‘junctures’, namely –
[129]T414. See also, T25 & 435.

(a) when the vehicle was the subject of panel work by Mr El Ahmed in March 2013;

(b) when the roadworthiness of the vehicle was assessed and certified by Mr Espositos in and ultimately on 22 July 2013;

(c) when the vehicle was serviced by the mechanics employed by the defendant on various dates in 2013, but more particularly in and on 20 August 2013; and

(d) on the evening of 2 September 2013 after the discovery of the body of Mr Brar.

In this, senior counsel emphasised the importance of formulating the duty owed with some precision and in appropriate terms.[130] In the course of that analysis, senior counsel for the defendant emphasised the importance of the Court considering any such duty prospectively rather than with the benefit of hindsight. He emphasised that in light of what he described as the ‘emotive’ nature of the facts and circumstances. In the course of this aspect of his address, senior counsel did not distinguish between any duty that might be said to arise in tort and a duty arising from an implied term of the agreement.
[130]Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361, Roads and Traffic Authority v Dederer (2007) 234 CLR 330, Kondis v State Transport Authority (1984) 154 CLR 672, Tame v New South Wales (2002) 211 CLR 317 and Wyong Shire Council v Shirt (1980) 146 CLR 40.

As to the relevant Occupational Health and Safety Regulations, senior counsel for the defendant submitted that they did not apply because of reg 3.5.1(4), which provides as follows:

Division 5 applies to a vehicle designed to be used primarily as a means of transport on public roads or rail, if that vehicle is being used in a workplace other than a public road or rail.

Senior counsel submitted that in the present instance taxi M2081 was a vehicle designed to be used as a means of transport on ‘public roads’, but in the present instance was being driven on a public road as a consequence of which Division 5 did not apply.

More generally, senior counsel submitted that even if Division 5 of the regulations applied, there would be no breach as, in substance, an employer was obliged only to take such steps as were ‘reasonably practicable’. In this, senior counsel conceded that the regulations ought be taken to apply to a sub-contracting arrangement as entered into here as between the defendant and plaintiff.

Senior counsel for the defendant was thereafter critical of various of the particulars of negligence pleaded by the plaintiff. He submitted that several of the particulars were ‘problematic’.[131] In the course of this aspect of his address, senior counsel indicated that the defendant was somewhat mystified by the particular of negligence directed to regulation 13 of the Transport (Taxi Cabs) Regulations 2005. He speculated that the allegation might be directed towards the replacement of the bumper bar on the vehicle in March 2013, although he was not sure.
[131]T429.

As to the ‘essence’ of the case, senior counsel addressed the issue of breach of duty as essentially co-extensive with the issue of reasonable foreseeability.[132] In that regard, senior counsel addressed the evidence concerning the system for repairing, servicing and roadworthiness followed by the defendant. He submitted that it was a system suggestive of an attentive defendant that was responsive to issues that arose in the taxi fleet.
[132]T431.

As to the system of roadworthies, senior counsel referred to Mr Espositos as having been described as ‘very strict’. He submitted that Mr Choudhary had relied upon the roadworthy certificate provided by Mr Espositos in July 2013. He said that Mr Espositos was competent and highly experienced.

In the course of this aspect of his address, senior counsel also referred to the system of servicing and repair described in evidence by Mr Dovski, the mechanic. He submitted that the system had been shown by the evidence to be appropriate and attentive.

As to the criticisms made by the plaintiff’s counsel of both the work performed by Mr El Ahmed and his credentials, senior counsel for the defendant submitted that the tasks performed by Mr El Ahmed were ‘very simple’ and that there was no evidence to suggest that such a simple task was required to be done only by persons qualified in panel beating.

Senior counsel for the defendant submitted that when considering the evidence given by the expert, Mr Dower, it was very important to bear in mind that he was a very experienced forensic officer who had undertaken a detailed and forensic process and in a rigorous manner when evaluating the vehicle.

In that sense, senior counsel submitted that much of the evidence of Mr Dower was ‘collateral’ to any issues of duty and breach.[133] Many of the matters referred to by Mr Dower, it was said, such as imperfections in welding and other aspects of the exhaust system and the vehicle generally, were not ultimately of significance because they either had no causal significance or could not reasonably have been identified by the defendant prior to any of the four ‘junctures’.
[133]T438.

Senior counsel advanced that submission in some detail in respect to the crack in the exhaust system that ultimately resulted in its fracture, although precisely when that occurred, it was submitted, was unable to be said. That said, senior counsel acknowledged that it had probably broken off ‘probably very close to 2 September, maybe the 1^st, 2^nd, something’.[134] Senior counsel submitted that the Court would be entitled to find that the crack had developed over time after servicing and the roadworthy examination to the point where it had fractured on or shortly before 2 September 2013. He said, however, that there was ‘no reason why anyone would do anything about it’. [135] He said that no one knew or should have known of the state of the exhaust system in the lead up to 2 and 3 September, and said essentially the same thing in respect of the holes in the bodywork and the state of the vents.
[134]T441.
[135]T442.

As to the four ‘junctures’ relevant to the issue of breach of duty, senior counsel for the defendant submitted that –

(a) in March 2013 Mr El Ahmed had performed repairs to the vehicle which was a ‘very modest job’ requiring no particular expertise and there was no evidence that it had not been undertaken competently. Even if it be assumed that the ‘problems’ with the ventilation flaps and even the holes in the bodywork had occurred at that time, it was submitted that the defendant could not reasonably have foreseen that such consequences posed a risk of safety to a driver;

(b) as to the roadworthy certificate issued by Mr Espositos on 22 July 2013, he did not see any cracks in the exhaust system and if he had he would have ‘defected’ the vehicle. Senior counsel submitted that Mr Espositos issued the roadworthy certificate which the defendant relied upon or was entitled to rely upon in the circumstances;

(c) as to the servicing last undertaken by Mr Dovski on 20 August 2013, the process of servicing after 22 days was a reasonable one and there must at that time have been no evidence of any cracks or fractures and, accordingly, there can have been no breach of duty owed to the plaintiff; and

(d) finally, in respect of the death of Mr Brar on 2 September 2013, it was said that Mr Choudhary had given ‘uncontradicted evidence’ that he had been informed by the police that Mr Brar had ‘most probably’ suffered a heart attack after they had viewed the CCTV vision from within the taxi.[136] It was submitted that Mr Choudhary was ‘absolutely robustly consistent’ in what he said. It had not come into Mr Choudhary’s mind that it would be other than a heart attack, and none of the sources of information or potential information available to Mr Choudhary had suggested otherwise. In the end, it was submitted, it was not possible to say that it was reasonably foreseeable that there was a risk posed to the plaintiff ‘simply because someone passed away in the vehicle’.[137]

[136]T451-452.

[137]T453.

In this sense, senior counsel submitted that none of the particulars in the amended statement of claim could be or were made out at any of the four ‘junctures’. In substance, it was submitted that nothing had occurred which had rendered reasonably foreseeable ‘the kind of injury which ultimately was sustained by the plaintiff’. That was said to have occurred by reason of an ‘extraordinary confluence of events’.[138] It was said that it was a ‘terrible alignment of tragic factors’. It was said to be ‘truly far-fetched and fanciful’ and a risk evident only via the impermissible wisdom of hindsight.[139]
[138]T454.
[139]T456.

As to damages, senior counsel for the defendant spoken briefly to a short written assessment provided to the Court.

Senior Counsel acknowledged that the plaintiff had suffered serious injuries, including a significant injury to his brain. Senior counsel emphasised that the plaintiff had valiantly persisted to undertake courses and had worked in security.

Senior counsel emphasised that the plaintiff’s visa status would have restricted him for a significant period, as under a student visa he was only entitled to work for 20 hours per week. He said that that restriction most likely would have subsisted until about 2019 when the plaintiff went onto a temporary protection visa. At that time, he had worked in security work 20 to 30 hours per week at $21 per hour. In that, he had retained a capacity for basic work, which was to his credit.

As to pain and suffering damages, senior counsel for the defendant estimated that a figure in the ‘high three hundreds’ and ‘maybe even verging toward 400’ would be available.[140]
[140]T459.

As to economic loss, senior counsel emphasised the difficulties associated with the visas. Senior counsel submitted that it was more appropriate to conclude that the plaintiff would have proceeded to become a mechanic, which may see him earning less than average weekly earnings as contended for by the plaintiff.

The plaintiff

In response, senior counsel for the plaintiff directly contested the proposition that the plaintiff had been the subject of an extraordinary sequence of events that could not reasonably have been foreseen.

He said that on 2 September 2013 Mr Brar had been found dead in the vehicle with the engine on. Mr Brar was at that time 30 years of age and with no morbidities.

Senior counsel submitted that it was extraordinary that ‘in apparent reliance upon the completely amateur assessment of a police officer’, the defendant had placed the vehicle straight back onto the road without conducting ‘even the most basic inspection’. Senior counsel submitted that it was a ‘quite remarkable circumstance’.[141] He submitted that the most basic inspection would have revealed that the tailpipe was not where it should have been.
[141]T463.

Senior counsel for the plaintiff thereafter addressed what he described as a ‘long chain of negligent actions’ by the defendant. He said that this did not involve the ‘retrospectoscope’.

He addressed the repairs undertaken by Mr El Ahmed in March 2013. He said that the work conducted by Mr El Ahmed could only have been conducted by him in March 2013 and that must have been the origin of the screws and smaller holes and problems with the vents later detected. All of those aspects rendered the vehicle unroadworthy and permitted what senior counsel described as ‘gaseous emissions’ readily to enter the vehicle.[142]
[142]T465.

As to the roadworthy certificate issued in July 2013, senior counsel for the plaintiff emphasised that Mr Espositos had admitted in his evidence that he had seen nothing wrong with what senior counsel described as the ‘defects’ shown in the photographs of the exhaust system. Senior counsel submitted that this disclosed Mr Espositos not to have been competent in the performance of his duties of inspecting and certifying the vehicle.

As to the servicing, senior counsel for the plaintiff emphasised that Mr Dovski had conceded that he had no familiarity with this particular taxi. Otherwise, senior counsel emphasised that an inference adverse to the defendant should be drawn by reason of the failure to call Mr Siddique.

Senior counsel for the plaintiff stated that reliance was placed upon the regulation 13.1 of the Transport (Taxi Cab) Regulations because there had been alterations to the vehicle without any written approval having been obtained.

As to the position of Mr Choudhary concerning the evening on which Mr Brar had been found deceased in the vehicle, senior counsel for the plaintiff emphasised that Mr Choudhary had said only that he had been told that Mr Brar ‘might’ have had a heart attack. It was submitted that it was by no means certain and should have provided Mr Choudhary with the ‘impetus’ to further investigate.[143]
[143]T466-467.

Senior counsel described the system of the defendant in respect of the vehicle as having been a ‘shambles’.[144]
[144]T467.

Senior counsel submitted that when regard was had to Wyong Shire Council v Shirt,[145] there was an extremely dangerous risk and a very probable outcome of death or serious injury which dictated that the defendant ought be found to have breached the duty owed. He said that the claim of a lack of knowledge of any problem with the exhaust was ‘without merit’ when the ‘factual matrix’ was examined.[146]
[145](1980) 146 CLR 40.
[146]T467.

In respect of the issue of duty, senior counsel for the plaintiff submitted that the plaintiff ought be properly to be regarded as an employee of the defendant. He did not shy away from the considerations referred to in the recent case of Eastern Van Services v Victorian WorkCover Authority.[147] He submitted that the defendant had a ‘high degree of control’ over the plaintiff because it supplied a fully fuelled vehicle which it controlled.[148]
[147][2020] VSCA 154.
[148]T470.

Alternatively, senior counsel for the plaintiff relied upon either a relationship of bailor/bailee or that the plaintiff was an independent contractor to the defendant. Either way, it seems, senior counsel for the plaintiff submitted that there was ‘clearly’ a breach of any such duty.[149]
[149]T472.

As to the Occupational Health and Safety Regulations, senior counsel submitted that the regulations were not excluded in the present instance because the vehicle was not used on a public road because, it was submitted, it had been located ‘on the premises of Crown Casino’.[150]
[150]T474.

As to damages, senior counsel for the plaintiff submitted that the plaintiff was ‘exceptionally lucky to be alive’.[151] He referred to the medical evidence given by Professor Davis, and also some of the medical reports received into evidence. In this, it was submitted that the plaintiff had plainly suffered a very serious brain injury that is life long and which has a cardiac aspect as well. Senior counsel for the plaintiff submitted that general damages ‘have to be something in the order of $500,000, maybe $550,000’.[152]
[151]T475.
[152]T477.

As to economic loss, the plaintiff relied upon written particulars of loss.

Senior counsel submitted that the plaintiff had made valiant efforts to return to work but was realistically confined to the most basic roles and was confined in any role due to ongoing fatigue as a consequence of his injuries.

Senior counsel submitted that the most appropriate figure to consider was that of Australian average weekly earnings.

As to the issue raised by the defendant concerning the student visas which had confined the plaintiff to 20 hours of work per week until about 2019, senior counsel conceded that ‘allowance’ would need to be made for that limitation, albeit that if the plaintiff had obtained permanent residency it would have given him a more extensive right to work.

Reply

In reply, senior counsel for the defendant considered it to be ‘conceptually unsound’ for the plaintiff to essentially aggregate all of the events when considering whether there was foreseeability of harm to the plaintiff.[153] Senior counsel emphasised the four ‘junctures’ that he had identified. It was submitted that it would need to be considered whether a duty existed at any of those particular points.
[153]T482.

Otherwise, senior counsel took issue with some of the points arising out of the address of senior counsel for the plaintiff. Among other things, senior counsel submitted that there had been no point in calling Mr Siddique as he most likely would have had ‘nothing he could particularly give evidence about’.[154] As to the Transport (Taxi Cab) Regulations, there had been no alterations to the vehicle. As to the Occupational Health and Safety Regulations, the vehicle was found outside Crown Casino on ‘a publicly accessible roadway’ which meant that the relevant regulations do not apply.[155]
[154]T483.
[155]T485.

D Liability

As noted, the plaintiff advanced the issue of liability in essentially three different ways –

(a) breach by the defendant of a duty of care owed to the plaintiff as employee;

(b) alternatively, breach by the defendant of a duty owed to the plaintiff as either bailee of the taxi or as an independent contractor;

(c) breach of the Occupational Health and Safety Regulations.

As I have earlier noted, practically no attention was given in argument to any distinction between any common law duty of care and the scope of any term to be implied into the bailment agreement. As senior counsel for the defendant put it, the two arguments were essentially ‘coterminous’.[156]
[156]T425.

As I have observed, an argument emerged late on concerning either breach of duty or, perhaps, breach of a statutory duty, said to arise by reference to a breach of the Transport (Taxi Cab) Regulations.

As pleaded, however, the issue connected with those regulations was no more than a particular of the negligence case.

I can address that issue presently by observing that it arose in the clearest way only in the final address of senior counsel for the plaintiff, and even in those circumstances it was advanced by reference to the proposition that the plaintiff had suffered injury other than on a ‘public road’. However, nothing cogent in the way of evidence was led in that regard, undoubtedly because the point had something of the quality of a thought bubble hatched in final address.

The essential point is that the legal burden of establishing such a breach, however it was sought to be put, rested upon the plaintiff and was not discharged. If anything, it was addressed ultimately in the most desultory of forms. I do not accept that the state of the evidence is such that I could safely conclude that the plaintiff was injured when he was in his vehicle on other than a ‘public road’.

Indeed, on the evidence, it seems likely that the plaintiff was injured in taxi M2081 at the Crown Casino ‘rank’.[157] In the ordinary course, I would have expected that a taxi rank is on a public road. If that were not so, the plaintiff made essentially no attempt to establish otherwise.
[157]See the evidence of Mr Choudhary at T317.

Similarly, the argument concerning the Occupational Health and Safety Regulations. I was taken to no authority concerning the manner in which sub-reg 3.5.1(4) is properly to be construed. If, as it reads, that sub-regulation specifies when the relevant division is to apply, the plaintiff made only the most desultory attempts to establish its application.

In any event, for the reasons earlier identified, albeit that the evidence on the point was left in a highly undeveloped state, I would tend to think that it is more likely than not that the Crown Casino ‘rank’ was on a public road and therefore that the regulations relied upon by the plaintiff have no present application.

That leaves the question of the common law duty of care and breach of any such duty.

As I have noted, the primary manner in which the plaintiff sought to advance his claim was via the contention that the relationship between him and the defendant was one of employee and employer. That was strenuously resisted by the defendant.

On the evidence, there are essential difficulties in the principal contention of the plaintiff, namely that –

(a) the presence and terms of the bailment agreement made between the plaintiff and defendant, whilst not strictly discounting the potential for a relationship of employee and employer, does tend to count against it owing to the terms in which the agreement is drawn;

(b) the majority of the other features of the relationship between the plaintiff and defendant do not tend to support any view that there was a relationship of employee and employer between them. Indeed, many of the regular features of such a relationship are absent, such as the fact that the defendant did not provide long service leave, sick leave, compensation coverage and required that the plaintiff obtain his own uniform; and

(c) more particularly, I was not at all confident in viewing the evidence of the plaintiff that he had been of the view that he was in a relationship of employee/employer with the defendant and Mr Choudhary was certainly of the view that the plaintiff was not an employee. Whilst that might not be determinative of the matter in the sense that one should look to the objective circumstances, the actions of the parties concerned, viewed objectively, did not tend to suggest that the plaintiff was an employee of the defendant.

That, of course, is nothing like the end of the matter.

By reference to the terms of the bailment agreement and other features of the relationship between the parties, the defendant contended that the plaintiff was an independent contractor in a contractual relationship with the defendant. That was essentially the fallback position of the plaintiff and the overall contention may be accepted.

From that point, it was essentially uncontentious that such a relationship is capable of being one in which a common law duty of care or implied term to similar effect might be said to arise.

So much was ultimately essentially acknowledged by the defendant in that, as I have noted, the amended defence admitted, in substance, that the defendant owed a duty to the plaintiff to provide a vehicle that passed annual roadworthy inspections, was serviced and maintained at reasonable intervals and to a reasonable standard and was repaired as required in a timely manner and to a reasonable standard.

The form of that pleading was, however, in very specific terms undoubtedly crafted to interlock with what it was presumably intended would be shown by the evidence to have been done by the defendant in respect of taxi M2081, namely the obtaining of the roadworthy certificate together with regular servicing and repairs when required.

Another way of looking at the issue, however, is that the duty thereby intended to be stated is essentially no more than one to take reasonable care to provide a reasonably safe vehicle for the use of the plaintiff, and the particular steps taken by the defendant should be thought to be among the steps to be taken in discharge of the content of such a duty. So much was essentially acknowledged by senior counsel for the defendant in the course of address.[158]
[158]T434. See also, T25 & 414.

It seems to me that that acknowledgement was a quite proper one. Any reasonable and prudent person providing a taxi to another for commercial purposes – particularly purposes in which they both share an economic interest and in which the vehicle is anticipated to be used practically continuously and over long periods and long distances – must be said to be entering into a relationship giving rise to a duty to take reasonable care to provide a vehicle that is safe and suited for its intended use.

Such a duty owes nothing to the wisdom of hindsight. It is the duty of care which I find to have arisen as between the defendant and plaintiff, whether it might be said to have originated in the common law of negligence or as an implied term to the bailment agreement.

Whatever might be the precise formulation of the duty of care in question, the real point ultimately made by the defendant was that there was no ‘reasonable foreseeability’ of risk at any of the four so-called ‘junctures’ such that any such duty ought properly be concluded to have been breached.

In that regard, the approach is and remains that identified by Mason J in the classic passage from Wyong Shire Council v Shirt,[159] namely that –

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

[159]Shirt, 47-48.

The question of ‘reasonable foreseeability’ has sometimes been derided as an ‘undemanding’ standard. That said, the approach of Mason J in Shirt remains the law,[160] and the issue of reasonable foreseeability can on occasion require serious consideration and sometimes be determinative. The defendant contends that this is one such instance.
[160]State ofNew South Wales v Fahy (2007) 232 CLR 486.

Immediately prior to what I have described as the classic passage in Shirt, Mason J approved as correct the law as stated by the Judicial Committee of the Privy Council in The Wagon Mound [No 2],[161] and in respect of the issue of reasonable foreseeability stated as follows –

In essence its correctness [ie, the correctness of The Wagon Mound [No 2]] depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [[1951] AC 850], may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

[161][1967] 1 AC 617.

Prior to that passage, his Honour quoted and referred with approval to several passages from The Wagon Mound [No 2] that included the identification by Lord Reid of the reasonable man as one ‘careful of the safety of his neighbour’ and his Lordship’s identification of a ‘real risk’ as one would ‘occur to the mind of a reasonable man’ in the position of the defendant which ‘he would not brush aside as far-fetched’.[162]
[162]Shirt.

More recently, in Road and Traffic Authority of New South Wales v Dederer,[163] Gummow J referred to earlier authorities directed to the standard of care of the reasonable man; sometimes described as the ‘prudent and reasonable man’. In particular, his Honour referred with approval to a passage from Vaughan v Menlove,[164] in which Tindal CJ had confirmed that liability for negligence is not co-extensive with the judgement of each individual and referred to ‘the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe’. In that, Tindal CJ had confirmed that it was insufficient for the defendant to have acted ‘honestly and bona fide to the best of his own judgment’.[165]
[163](2007) 234 CLR 330 ‘Dederer’.
[164](1837) 3 Bing (NC) 468, 475.
[165]Ibid, 493 as referred to in Dederer [50].

Returning to the circumstances of the present case, in evidence much was sought to be made by the plaintiff of the events in and relating to the first three of the ‘junctures’ identified in address by senior counsel for the defendant, particularly the first two, being the bodywork performed in March 2013 by Mr El Ahmed and the roadworthy certificate of July 2013 issued by Mr Espositos.

To my mind both the events and any reasonable foreseeability of risk at each of those three earlier ‘junctures’ is ultimately and at best no more than contextual in respect of later events, because each of those ‘junctures’ occurred before (and in one instance well before) the bailment agreement was made between the plaintiff and defendant on 26 August 2013.

Prior to that time, on the evidence, there was no relationship between the plaintiff and defendant and therefore no occasion for a duty owed by the defendant to the plaintiff to have arisen.[166] It might be that there was a duty owed by the defendant to a class of persons of which the plaintiff later became a member, but in the present context that is immaterial.
[166]Agar v Hyde (2000) 201 CLR 552, [66]-[67].

Of more pressing relevance and importance is the fourth ‘juncture’ identified by senior counsel for the defendant, namely the evening of 2 September 2013, after the discovery of the body of Mr Brar.

At that point, as I have noted, there was a relationship between the plaintiff and defendant of the kind that I have described, and the defendant may be said to have owed to the class of persons likely to be provided with taxi M2081 a duty to take reasonable care that such taxi is safe and suited for its intended use. However, as the defendant emphasised, anterior to any finding that such a duty has been breached, risk of injury must have been reasonable foreseeable.

In resisting the contention that there was reasonable foreseeability of injury at that time, the defendant very much sought to contend that any such risk was far-fetched and fanciful because of Mr Choudhary’s ‘reliance’ upon what he was told by the police officers at the scene and, to some extent, upon what he was not told by Mr Siddique after driving the taxi back to the depot late that evening or by Mr Singh after driving the day shift in the taxi the following morning.

I have already referred to my observations of Mr Choudhary’s reliability as a witness. It will also be evident that Mr Choudhary tended to oscillate in his evidence between stating that the police had said that Mr Brar ‘most probably’ had a heart attack and that he ‘might’ have had a heart attack. Having seen that evidence, I tend to think that the former represents Mr Choudhary’s optimistic view (from his perspective) of what he might have been told, but the latter is closer to the truth.

Similar oscillation was evident in Mr Choudhary’s evidence that ‘the problem was because of the heart attack … so we give car to the day driver’ as opposed to his ‘thinking what went wrong … all these questions were in our minds’. Again, I tend to think that the former is an optimistic and rather reconstructed view, and the latter is more likely the truth.

In this regard, I do not accept that Mr Choudhary either alone or together with Mr Siddique formed a considered and determined view that it was ‘only’ a heart attack, or, at that time, drew any specific comfort from Mr Siddique’s driving of the vehicle back to the depot, or gave any further consideration to the issue after leaving the depot that evening and before being advised the next evening that the plaintiff had been found unresponsive in the vehicle. To the extent that Mr Choudhary gave evidence to the contrary, I reject it as reconstruction and unlikely to represent his true state of mind at the time.

As I have indicated, I consider it to be most likely that on that evening Mr Choudhary ‘wondered’ about what had happened to Mr Brar and the suggestion that such a young and apparently healthy man ‘might’ have suffered a heart attack.

I did not get the impression that at any point Mr Choudhary went beyond wondering about the death and commenced upon contemplating the possibility that the condition of the vehicle might in some way be implicated in it. As he said: ‘it was not in my mind that something happened because of the vehicle’.[167] That said, it was not the evidence that the police had said either that the death or the ‘heart attack’ could not have been caused by the vehicle.
[167]T359.

It follows from the above that at that particular ‘juncture’ any risk of injury posed by the condition of the vehicle was not in the mind of Mr Choudhary. However, the pertinent issue is what, if anything, a cautious, reasonable and prudent person in the position of Mr Choudhary should be taken to have perceived as to the reasonably foreseeable risk of injury posed by the condition of the vehicle. In that, as I have noted, it does not follow that a risk which was unlikely to occur was not foreseeable.

In this regard, as at 3 September 2013, and prior to the commencement by the plaintiff of his shift in taxi M2081, such a person in the position of Mr Choudhary knew or ought to have known that –

(a) the body of Mr Brar had been found in taxi M2081 parked in Box Hill;

(b) prior to death, Mr Brar had been speaking on the telephone while sitting in the vehicle;

(c) Mr Brar had seemingly died suddenly, as the caller on the telephone had apparently been on the line;

(d) it was suspected by police that Mr Brar might have suffered a heart attack, but that had not been confirmed by any medical examination;

(e) sudden death by heart attack in a healthy man in his 30s is unusual, if not extremely rare;

(f) no cause of any such ‘heart attack’ had yet been identified;

(g) indeed, no cause of the death of Mr Brar had yet been established;

(h) taxi M2091 and all of the defendant’s taxis were driven regularly and over long distances and so might be thought to suffer more than average mechanical and other faults as a consequence of ‘heavy wear and tear’;

(i) faults in the defendant’s vehicles could give rise to a risk of injury to a driver or other road user if not inspected and repaired;

(j) in order to address that and other risks, the defendant had a system of annual roadworthy assessment as well as ready inspection, servicing and repairs available to be undertaken by two mechanics employed at its depot workshop;

(k) as at 3 September 2013, it was more than 40 days since the vehicle had last been certified roadworthy by Mr Espositos;

(l) in the previous few months various faults had been reported and repairs effected in respect of taxi M2081, namely the bodywork repairs undertaken by Mr El Ahmed on 14 March 2013 and the mechanical repairs attended to by the defendant’s mechanics on at least that and 13 subsequent occasions;[168]

(m) consequently, it was evident that taxi M2081 regularly suffered mechanical faults that required attention, service and repair, including on at least two occasions since the vehicle had last been certified roadworthy by Mr Espositos.

[168]Namely 30 March, 1 April, 24 April, 4 May, 27 May, 1 June, 3 June, 27 June, 3 July, 8 July, 12 July, 23 July and 20 August 2013, see ee, Exhibit 1, Exhibit 2 and also Exhibit 4.

In respect of these features, I am of course mindful of the references made by senior counsel for the defendant to the dangers of the wisdom of hindsight.

However, in my view, the striking and unusual circumstances in which Mr Brar was found deceased, together with his age and previously unblemished state of health and the open question as to the cause of his death, considered in the context of the ‘hard life’ and regular need for repair of the vehicle in which he was found were such that it should have been foreseeable to a reasonable, cautious and prudent person in the position of Mr Choudhary that the condition of the vehicle might conceivably present a serious risk to the health of a subsequent driver or passenger.

Indeed, albeit that it is not necessary that the precise sequence of events leading to injury be foreseen,[169] it is tragically the fact and perhaps not irrelevant to consider that the circumstance in which young adult men in our community are most regularly found lifeless in a stationary vehicle is one that in the present instance was excluded by attending police. In that circumstance, of course, exhaust fumes are introduced to the cabin of a vehicle deliberately and quite obviously. But considerations of this kind fortify me in the view that a cautious and reasonable person presented with the circumstances recounted above would foresee and consider the potential for risks to life and health to be posed by the vehicle.
[169]Sydney Water Corporation v Turano (2009) 239 CLR 51, [46].

None of this, of course, is to say that such a risk was likely to occur; merely to say that it was not far-fetched or fanciful.

For these reasons, the contentions of the defendant to the contrary must be rejected.

Beyond this point it was not seriously contended that an application of the so-called Shirt ‘calculus’ would be likely to support the view that the defendant was not in breach of the duty that it owed to the class of persons including the plaintiff by not inspecting the vehicle the following day.

In that regard –

(a) the risk of injury presented by the condition of the vehicle, while maybe or maybe not unlikely occur, was very serious, as demonstrated by the death of Mr Brar (if it be assumed that the condition of the vehicle could be a cause of that death);

(b) the defendant had available to it an equipped workshop with employed mechanics that could have inspected the vehicle;

(c) it was not said that there would have been any impediment to the prompt inspection of the vehicle by the mechanics;

(d) the principal problem with the vehicle – and by far the greatest danger presented by it – was, on the evidence, the fractured tailpipe shown in the photograph appearing in Annexure A;

(e) if the vehicle had been inspected by the mechanics, the fractured tailpipe was, as Mr Dovski acknowledged in his evidence, ‘completely visible’, and would readily have been rectified;[170] and

(f) if the fractured tailpipe had been fixed, the risk of injury posed to the class of persons including the plaintiff would have been avoided.

[170]T400.

In the circumstances, I find that the defendant was in breach of the duty of care which it owed to the plaintiff and that its breach of duty was a cause of the injuries suffered by him.

E Assessment of damages

It will be evident that prior to injury the plaintiff was considered to have had an essentially normal IQ and associated life and prospects. True it is that the plaintiff was a migrant from Pakistan, and that English is not his first language, but it is apparent that he was tertiary educated in Pakistan, reasonably proficient in English prior to injury and studying and working casually in Australia. In that regard, prior to injury, he was on course to obtain a visa permitting him to become a permanent resident.

Much of that has been lost or severely affected by reason of his injuries. He was lucky to survive the incident. He was found unresponsive and in a coma. He was then resuscitated and spent time in hospital and then in rehabilitation. On radiological investigation, brain damage has been confirmed and is permanent.

The effect of the brain damage suffered by the plaintiff cannot be underestimated. Professor Davis and Dr Harris spoke to it, and I accept their evidence. The nub of the position is that he has serious and permanent sequelae of the brain injuries and should now be regarded as being intellectually disabled.

The position of the plaintiff was very evident in the course of him giving evidence. It was quite apparent that he has agreeable personal qualities and he does not present as depressed,[171] but he has been badly affected intellectually. I accept his evidence that he has been affected in many aspects of his life, including his capacity for qualified and skilled work, social relations and recreation.
[171]I speak here only of his presentation in evidence. I do not discount the opinion expressed by Dr Strauss, psychiatrist, expressed in a report dated 9 December 2020, to the effect that the plaintiff suffers from a mild chronic adjustment disorder with mixed anxiety and depressed mood secondary to his brain damage: see, Exhibit J.

Against that, he has retained some capacity for very basic work. It is to his credit that he has pursued static security work casually over the last few years.

That said, the limits of his likely ability ever to do other work – even basic work – were quite evident when he was giving evidence, especially when he was being cross-examined about so-called ‘suitable employments’. I would be surprised if he were able to work in other or more advanced employment. I accept the substance of the evidence to the effect that the plaintiff is unlikely to and is not really capable of working more than 30 hours per week.

In this context, I have noted the difference in the assessments as to general damages proffered by the respective senior counsel. There is not much between them, as each acknowledges the very serious and severe consequences to the plaintiff by reason of his injuries. I would assess general damages in the sum of $450,000.

As to loss of earning capacity, to some extent the issues on that front were approached by the parties by reference to figures that were agreed rather than reflected in the evidence. In that regard, the major issues were –

(a) the extent to which the plaintiff’s capacity for work was or was likely to have been limited by his visa status prior to about mid-2019;

(b) what work the plaintiff would thereafter likely have undertaken;

(c) the manner in which allowance should be made both for the casual security work undertaken by the plaintiff in the past and into the future; and

(d) implicitly, the application of a discount for the vicissitudes of life.

The respective positions of the plaintiff and defendant were reflected in written documents provided to the Court. I will not address those documents in detail.

It was agreed that the relevant date for any assessment of the plaintiff’s loss of earning capacity must commence on and from 3 March 2015.

Senior counsel for the plaintiff essentially accepted that allowance must be made for the limitation presented by the plaintiff’s visa status prior to about mid-2019, in which he was limited to 20 hours of work per week. No different date or figure would seem to be consistent with the evidence, and I accept that the plaintiff would have been limited to 20 hours work per week until 1 July 2019.

In that context, counsel for the plaintiff contended that he would likely have obtained $700 gross per week in taxi work. The evidence on that front is not terribly sturdy and, of course, the plaintiff only ever worked in that position on two occasions. I do not accept that taxi work – at least at that level of estimated earnings – is an appropriate measure of the plaintiff’s loss between 3 March 2015 and 30 June 2019.

In my view, it is more appropriate to assess that period of loss by reference to work of a kind that the plaintiff had showed a more sustained capacity to perform, namely the part time work in the restaurant in Carlton in which he had earned roughly $500 per week gross, being $464 per week net plus $47.50 in superannuation contributions. On that basis, his weekly net past loss for the period 3 March 2015 to 30 June 2019 was $511.50 per week inclusive of superannuation. Thus, the figure to 30 June 2019 is $511.50 x 255 weeks = $130,432.50.

From that figure must be deducted a sum properly to reflect the plaintiff’s earnings in static security work since 2017.

The evidence was not precise as to when, precisely, the plaintiff commenced to work in security, however the written calculation of the defendant appears to assume that the relevant period commences or should be taken to have commenced from 1 July 2017 and the plaintiff’s document refers to ‘mid-2017’. I accept that 1 July 2017 is the appropriate date.

The plaintiff’s written document included a total figure for the past security work of $30,501. When I asked about that figure, it was disclaimed by counsel and said that the defendant’s figure ‘may be more appropriate’.[172]
[172]T481.

The defendant’s written document includes no actual figure relating to the past security work. Albeit that the issue relates to loss in the past, the document approaches the issue on the basis of a ‘capacity’ to work calculated at 25 hours per week at $21 per hour, being $485 net plus superannuation of $52.50 being a total of $537.50 per week.

Approaching the issue as one of capacity, the high point, from the perspective of the defendant, was the evidence which suggested that the plaintiff might be able to work 20 to 30 hours per week. On the other hand, however, the plaintiff gave evidence that he works ‘sometimes 20 hours, sometimes less, sometimes nothing’.[173]
[173]T44.

I did not gain the impression that it would be fair to assess the plaintiff’s capacity as one that amounted regularly to working 20 or 30 hours per week. The plaintiff gave evidence concerning his fatigue and other difficulties, which I accept, and the availability of the work concerned plainly varies widely.

For those reasons, it seems to me that if the matter must be approached on the basis of ‘capacity’, a more appropriate calculation is 15 hours per week at $21 per hour, being $315 (which is below the tax threshold) plus superannuation of $29.93 being a total of $344.93 per week. Thus, the figure for 1 July 2017 to 30 June 2019 is $344.93 x 104 weeks = $35,872.72.

It follows that the plaintiff’s loss calculated to 30 June 2019 is $130,432.50 – $35,872.72 = $94,559.78.

As to the capacity of the plaintiff to work after 1 July 2019, the defendant submitted that the plaintiff was most likely to continue to follow a path as a mechanic or similar in the automotive industry. Somewhat surprisingly, at least to me, the figures seem to suggest that earnings in that field are below Australian average weekly earnings.

In any event, the flavour of the plaintiff’s evidence was that he obtained tertiary qualifications in Pakistan and came to Australia motivated to improve himself and obtain permanent residency. He was evidently quite conscious of the route by which that might be achieved and set about achieving it. He studied and he worked and so, evidently, did his friends. He plainly had both the motivation and ability to apply his skills in Australia and the opportunity to do so.

That being the case, absent injury, I think it is most likely that the plaintiff would have completed the automotive courses and obtained permanent residency. In that regard, I note the plaintiff’s evidence to the effect that his friends have since obtained permanent residency, although he has been unable to do so owing to his injuries.

However, I do not accept that the plaintiff was most likely to proceed into the automotive field for much beyond that, contrary to the suggestion made in address. As I have mentioned, the plaintiff is pleasant, tertiary educated and was not lacking in ability and motivation prior to injury.

Further, the plaintiff’s presentation in evidence was not of someone who had a deep passion for automotive matters or was likely to pursue work in that field simply because he had been trained in it in order to achieve his visa status, especially when he plainly had a wide range of other skills and might well have been able to deploy those skills in order to obtain Australian average weekly earnings or more. For those reasons, I tend to think that it is fairer to assess his claim by reference to Australian average weekly earnings.

It follows that in respect of the period 1 July 2019 to 30 June 2021 (when the superannuation guarantee changed), I would accept the figures proffered by the plaintiff to the effect that the plaintiff’s net weekly loss is $1,242 to which superannuation benefits of $152.34 should be added to make a total of $1,394.34 per week. Thus, the figure to 30 June 2021 is $1,394.34 x 104 weeks = $145,011.36.

In respect of the security work, I would take the same approach outlined above, namely 15 hours per week at $21 per hour, being $315 plus superannuation of $29.93 to reach a total of $344.93 per week. Thus, the figure to 30 June 2021 is $344.93 x 104 weeks = $35,872.72.

It follows that the plaintiff’s loss for the period to 30 June 2021 is $145,011.36 –$35,872.72 = $109,138.64.

There is, of course, an adjustment required in the calculations relating to the period from 1 July 2021 to the present date (owing to the change in the superannuation guarantee), but the calculation can otherwise proceed on the basis indicated above.

In respect of that period, the net weekly loss is $1,242 to which superannuation benefits of $160.36 should be added to make a total of $1,402.36 per week. Thus, the figure to 9 September 2021 is $1,402.36 x 10 weeks = $14,023.60.

From that must come the correlative figure relating to the security work, namely $346.50 x 10 weeks = $3,465.00.

It follows that the plaintiff’s loss for the period to 9 September 2021 is $14,023.60 –$3,465 = $10,558.60.

In respect of the future, it follows from the above that I would accept the figures proffered by the plaintiff based in Australian average weekly earnings to the effect that the plaintiff’s net weekly loss is $1,401.16 to which superannuation benefits of $180.40 should be added to make a total of $1,581.56 per week to which, in respect of the future, it was common ground that the multiplier of 764.6 ought be applied. Thus, the figure for the future is $1,581.56 x 764.6 = $1,209,260.78.

I have already referred to the plaintiff’s fragile and very limited capacity for very basic work, particularly static security work. The availability of that work also plainly varies.

However, if the plaintiff were to lose that work I am not at all confident that he would readily be able to obtain other employment. I accept the evidence of Dr Rowe to the effect that the plaintiff is realistically not able to work in employment beyond the kind of static security position in which he currently works when available.[174] The plaintiff’s responses in the course of the cross-examination directed to so-called ‘suitable employments’ underline his particular economic fragility.
[174]T274.

In respect of the future there is, however, a further consideration, namely the plaintiff’s visa status. Whilst it seems that uninjured the plaintiff had a route to permanent residency, that has become unavailable to him since injury. He is presently in Australia on a temporary protection visa, but there was no evidence which suggested that that position was likely to subsist permanently. Realistically, there must be a chance that he would at some point be returned to Pakistan.

If that were to occur, the plaintiff would not be working in static security work earning Australian wages. Indeed, the plaintiff gave evidence that there is no work in Pakistan, at least not for him.[175] He also gave evidence concerning the reaction of the family in Pakistan when he attended in connection with the mooted marriage, which was not suggestive of an environment in which his plain disabilities would be readily accepted.
[175]T47 & 229.

For these reasons, I tend to think that it is artificial and inappropriate to assess the plaintiff’s loss of future earning capacity strictly via a calculation generated by reference to estimated hours in his present static security work. He may have such a capacity, albeit a very limited one, but he may not; and there is more than one reason why that might be so.

For those reasons, I tend to think that the plaintiff’s retained capacity for work is better and most fairly reflected in an increased discount of 25% for vicissitudes.

In light of the above, I assess the plaintiff’s entitlement to damages as follows –

(a) General damages: $450,000;

(b) Past loss of earning capacity:

(i) 3 March 2015 to 30 June 2019: $94,559.78;

(ii) 1 July 2019 to 30 June 2021: $109,138.64;

(iii) 1 July 2021 to 9 September 2021: $10,558.60;

(c) Future loss of earning capacity: $1,209,260.78 discounted by 25% for vicissitudes, namely $906,945.58

Total: $1,571,202.60

F Conclusion

The plaintiff was severely injured as a consequence of the negligence of the defendant.

Subject to any correction of the arithmetic outlined above, there will be judgment for the plaintiff for damages in the total sum of $1,571,202.60.

I will hear counsel concerning the appropriate form of orders, and costs.

ANNEXURE A