Skinner v Boral Resources (WA) Ltd - [2009] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SKINNER -v- BORAL RESOURCES (WA) LTD & ORS [2009] WADC 54

CORAM: DEANE DCJ

HEARD: 16-20 APRIL 2007, 21-25 JANUARY 2008

DELIVERED : 9 APRIL 2009

FILE NO/S: CIV 3625 of 1999

BETWEEN: GORDON SKINNER
Plaintiff
BORAL RESOURCES (WA) LTD (ACN 008 686 904)
Defendant
HIH CASUALTY & GENERAL INSURANCE (ACN 008 482 291)
First Third Party
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Third Party
KWINANA MECHANICAL REPAIRS PTY LTD (ACN 061 269 216)
Third Third Party

Catchwords:

Personal injury in motor vehicle accident - Liability and quantum in dispute - Whether Third third party an independent contractor - Nondelegable duty of employer - Whether s 3G of Motor Vehicle (Third Party Insurance) Act 1943 applies - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943
Occupational Health Safety and Welfare Act (1984) (WA)

Result:

Liability established
Damages assessed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
Defendant:     Mr J R Criddle
First Third Party           :     No appearance
Second Third Party       :     No appearance
Third Third Party          :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
Defendant:     Srdarov Richards Burton
First Third Party           :     Not applicable
Second Third Party       :     Not applicable
Third Third Party          :     Not applicable

Case(s) referred to in judgment(s):

Caramia v Shuttleworth [2002] WADC 140
James v Alinta Gas Networks [2006] WADC 6
Kondis v State Transport Authority (1984) 55 ALR 225
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Rodway v The Queen (1990) 169 CLR 515

DEANE DCJ:

Introduction and pleadings

In this matter counsel for the defendant advised the court at the commencement of the trial that he did not intend to proceed with the first and third party proceedings as that insurer was in liquidation and the only matter before the court was the substantive action between the plaintiff and the defendant.
It is alleged that on 4 January 1995 in the course of employment with the defendant the plaintiff was driving a truck provided by the defendant and was attempting to drive it through an electronically operated access gate into the Boral Plant at Kwinana. Whilst attempting to slow the truck down the plaintiff experienced problems with the brakes failing and also with the accelerator sticking and therefore was unable to slow the truck down sufficiently to prevent colliding with the gate, causing him injuries. This accident was allegedly caused by the negligence of the defendant, its servants and agents.
The negligence is said to lie in the plaintiff being provided with a vehicle that was unsafe and/or not maintained in an adequate state of repair and operation, as the defendant failed to ensure the vehicle's brakes and accelerator worked safely and effectively in that the defendant:
(1)failed to heed the plaintiff's warnings and requisitions that the vehicle's brakes and accelerator did not work safely or effectively;
(2)failed to heed the plaintiff's warnings regarding the effective working and safety of the vehicle's brakes and accelerator, when he placed "out of service" tag on the vehicle the evening prior to the material date;
(3)failed to heed the plaintiff's warning regarding the vehicle after he submitted vehicle requisitions and put a "out of service" tag on the vehicle prior to the incident;
(4)failed to carry out any adequate inspection of the vehicle, or any adequate repairs to the vehicle's brakes and accelerator.
It is also alleged that the defendant, its servants or agents failed to provide a safe system of work for the same reasons as previously pleaded and additionally, that it failed to take any or any adequate measures to ensure that the vehicle the plaintiff was provided with was maintained in an adequate state of repair and operation and failed to take any or adequate measures in response to the plaintiff's warning in vehicle requisitions regarding defective working and safety of the vehicle's brakes and accelerator. It is said that there was a failure to undertake an adequate inspection of the vehicle or any adequate repairs to the vehicle or replacement of faulty parts.
Further, it is said that the defendant, its servants and agents failed to provide a safe system of work in failing to provide any or any adequate notice to the plaintiff of a hazard in the work area in that the defective vehicle brakes and accelerator constituted a hazard or danger, which the defendant knew or ought to have known about and taken measures to address once the matter was drawn to their attention by the plaintiff. The plaintiff further pleads that the system of work was unsafe because he was allowed, permitted or required to continue to operate the vehicle, with knowledge of the plaintiff's vehicle requisitions regarding the effective working and safety of the vehicle's brakes and accelerator. It is also said that the defendant, its servants or agents did this with the knowledge that the plaintiff had placed an "out of service" tag on his vehicle the evening prior to the date of the incident being the accident, and to continue in a manner which they knew or ought to have known was dangerous. In addition, it is said that the defendant, its servants or agents failed to adduce, eliminate or control the hazard to which the plaintiff was exposed at the work area in that the defendant ought to have heeded the plaintiff's warnings in the vehicle requisitions and in the "out of service" tag regarding the effective working of the vehicle's brakes and accelerator. It is alleged that the defendant, its servants or agents failed to provide any or any adequate supervision of the plaintiff whilst carrying out the work and they failed to take any or any adequate care for the safety of the plaintiff for carrying out the work.
Further, and in the alternative, it is pleaded that the incident was caused by the defendant's breach of its statutory duty pursuant to the Occupational Health Safety and Welfare Act 1984 (WA) (as amended) ("the Act") to (so far as was practicable) provide and maintain a working environment in which the plaintiff was not exposed to "hazard" (as defined in the Act). Particulars of breach of statutory duty are alleged to be:
(1)failing, contrary to s 19(1)(a) of the Act, to provide and maintain plant and systems of work (including but not limited to trucks and their components) such that, so far as practicable, the plaintiff was not exposed to hazards;
(2)failing, contrary to s 19(1)(b) of the Act, to provide such information, instruction and training to and supervision of the plaintiff as was necessary to enable the plaintiff to perform the work in such a manner that the plaintiff was not exposed to hazards;
(3)failing, contrary to s 19(1)(c) of the Act, to consult and cooperate with the plaintiff regarding occupational health, safety and welfare at the workplace;
(4)failing, contrary to s 19(1)(d) of the Act, where it was not practicable to avoid the presence of hazards at the workplace to provide the plaintiff with, or otherwise provide for the plaintiff to have, such adequate personal protective equipment as was practicable to protect the plaintiff against those hazards;
(5)failing, contrary to s 19(1)(e) of the Act, to make arrangements for ensuring, so far as was practicable, that the use, maintenance and transportation of plant and equipment (such as trucks and their components) at the workplace was carried out in a manner such that the plaintiff was not exposed to hazards;
(6)the plaintiff relies on the aforementioned particulars of negligence as further particulars of breaches of statutory duty.
Further, and in the alternative, the plaintiff claims that the incident was caused by the defendant's breach of its contract of employment with the plaintiff resulting in loss to the plaintiff. The particulars of breach of contract are alleged to be that the plaintiff was at the material time employed by the defendant pursuant to a contract of employment. It is alleged that there were express or alternatively implied terms of the contract of employment being:
(1)to select and provide proper and competent persons to work with or superintend or direct the work;
(2)that the defendant would not permit, require or allow the plaintiff to perform work that was dangerous or unsafe to the plaintiff;
(3)that the defendant would not permit, require or allow the plaintiff to perform work in a working environment or workplace where there was a hazard as defined in the Act;
(4)that the defendant would maintain a proper and safe system of work;
(5)that the plaintiff would be supplied with adequate information, instruction, advice, guidance, supervision, assistance and facilities by the defendant to ensure that the work performed by the plaintiff could be carried out by the plaintiff in a safe manner;
(6)that the plaintiff would not be provided with inadequate or unsafe or defective equipment or tools or appliances or that the plaintiff would not be required to work with such vehicles, equipment, tools or appliances;
(7)that the defendant would provide and maintain adequate vehicles, materials, tools and equipment and resources;
(8)that the defendant would warn or give notice to the plaintiff of any hazards associated with the work that the plaintiff was allowed or required or permitted to carry out in the course of employment.
For these reasons it is alleged that the defendant was in breach of the implied or alternatively, express terms of employment and once again the aforementioned particulars of negligence are relied on as particulars of breach of contract. In consequence of the defendant's breach of contract the plaintiff alleges that he has suffered loss and damage.
It is alleged that the plaintiff was injured in the incident and has required and will continue to require treatment because he has sustained residual disabilities and has suffered and will continue to suffer pain and loss of enjoyment of life. The particulars of injury and symptoms are said to be:
(1)soft tissue injury to the cervical/upper thoracic spine;
(2)pain, tenderness and restriction in cervical/upper thoracic region radiating down the lower lumbar region;
(3)pain, tenderness and restriction across both shoulders and through the abdomen;
(4)pain radiating down the right arm and right leg;
(5)headaches and disturbed sleep;
(6)depression, anxiety and frustration.
In relation to the above alleged injuries and symptoms it is pleaded that the plaintiff has undergone a variety of treatments and management including:
"Attendance, consultation and review with his general practitioner, with a neurologist and also with a rheumatologist."
In addition, the plaintiff it is said was admitted to hospital for emergency treatment and thereafter underwent physiotherapy, including hydrotherapy and a gym based exercise programme. He was required to take medications which included analgesics and anti‑inflammatories as well as being required to undergo radiological examinations including x‑rays, CT scan and carotid monitoring. Further it is said that the plaintiff continues to require further and ongoing treatment and management in relation to his injuries and symptoms.
As a result of the incident it is said that the plaintiff suffers a number of residual disabilities including:
(1)inability to sit for prolonged periods of time which affects his ability to return to his pre‑accident occupation as a truck driver as well as his capacity to work in fields associated with the transport industry;
(2)inability due to pain to undertake activities involving walking or standing for prolonged periods of time;
(3)inability due to pain to enjoy his pre‑accident social, recreational and sporting activities;
(4)disturbed sleep;
(5)headaches;
(6)depression, anxiety and frustration;
(7)diminished libido.
As a consequence of the alleged residual disabilities the plaintiff says that his pre‑accident social activities including attending parties, barbeques, theatre and similar activities has been adversely affected as has his pre‑accident ability to participate in recreational and sporting activities such as football and cycling. In addition, it is claimed that the plaintiff's pre‑accident household and domestic duties including activities such as lawn mowing, gardening, cleaning and washing have been adversely affected. It is pleaded that the plaintiff is unable to drive a motor vehicle for extended periods of time and further to enjoy those activities associated with functioning of libido.
The plaintiff claims for general damages, loss of earning capacity, loss of superannuation benefits, provision of gratuitous services, future medical and other expenses as well as future rehabilitation expenses.
The defendant denies liability for the incident and pleads correctly that the gate referred to was located at the Alcoa Alumina Refinery in Kwinana, this was never an issue at trial. Further, the defendant pleads that at all material times the truck involved in the incident was properly inspected and in an adequate and safe state of maintenance and repair such that its brakes and accelerator worked both safely and effectively. Further, and in the alternative, the defendant pleads that if there was any mechanical fault in the truck at the time of the incident, in particular with its brakes or accelerator, it had taken all reasonable precautions to identify and rectify such fault by ensuring that at all times the truck was inspected and adequately and safely maintained and repaired.
Further, and in the alternative, the defendant pleads that if there was any mechanical fault in the truck's brakes at the time of the accident or incident then it was as a result of the plaintiff's failure to drain the air tanks for the brakes on the truck as he was required to do on a daily basis in the course of his employment.
The defendant admits that the plaintiff was at the material time employed by it pursuant to a contract of employment but does not admit the alleged particulars of breach of contract in either its implied or express terms. It alleges that if the plaintiff had suffered loss and damage as claimed then it was caused by or contributed to by the plaintiff's own negligence in that he:
(1)failed to drain the air tanks on the truck either adequately or at all as required;
(2)drove the truck too fast in all of the circumstances, so as to be able to slow the truck sufficiently to prevent it colliding with the gate;
(3)misjudged the opening speed of the gate;
(4)failed to apply the brakes on the truck, either adequately or at all, whilst approaching the gate; and
(5)failed to wear the seatbelt in the truck, either adequately or at all.
The case for the plaintiff essentially is that the brakes on the defendant's truck which the plaintiff was driving on the day in question, failed to operate and this was due to the negligence of the defendant. Further it is said that the accelerator was sticky and as a result got stuck on high revs which also contributed to the truck which the plaintiff was driving colliding with the electric gate at Alcoa's premises. Although the vehicle which the plaintiff was driving on the day in question is referred to as a truck, it is more properly described as a prime mover with a trailer attached. It is said that there are a number of ways in which a prime mover can be brought to a halt or stop. One can shift down gears from a higher gear selection to a lower gear selection and it is in this context the plaintiff alleges the stickiness of the accelerator was problematic. This normally involves a procedure of double‑declutching before moving to a lower selection and requires placing gears into neutral by pressing the clutch once, putting the gears into neutral, and then revving the accelerator to increase the revs to a high enough point to select a lower gear. It was at the stage following putting the gears into neutral, prior to revving the accelerator to increase the revs, that the accelerator became stuck and revved too highly for the plaintiff to then engage a lower gear, so the main method of slowing the truck by shifting down gears could not be carried out because of the alleged stickiness of the accelerator. As a result of that, the plaintiff's case is that he then engaged the footbrake of the truck, which was spongy and as a result did not engage properly.
It is alleged that subsequent investigations revealed that this was either entirely or in part due to the fact that the air tanks supplying hydraulic pressure to operate the footbrake were contaminated with a sludge‑like substance. The plaintiff's case was that more than once on a daily basis he drained the air tanks of water condensation and this sludge as instructed. He only drained two air tanks of the prime mover unaware that there was a third or even fourth air tank on the vehicle. The prime mover which the plaintiff was assigned to drive a few days before the accident was not a vehicle he normally drove and although he was aware that he was required to drain the two air tanks, the plaintiff says he was not instructed to do anything further in this process because he was not given relevant information by the defendant as to the characteristics of that particular vehicle or prime mover. In the end it is said that the effective operation of the brakes was compromised by an accumulation of sludge material which was not drained.
There are two other ways that a vehicle of this type can be brought to a stop the first of which is described as exhaust braking, meaning that there is a slider or cap within the vehicle's exhaust emission system which when engaged shuts down the exhaust system causing pressure to be applied to the engine and this slows the operation of the engine down. The slider or cap is controlled by a solenoid which allegedly was unserviceable. In the end result on the plaintiff's case this method of slowing the prime mover down was not of particular consequence because the accident allegedly occurred when the gears of the vehicle were in neutral rather than engaged. The fourth and final method of slowing the vehicle down, which the plaintiff utilised, was by means of using the trailer brakes which were operated by hand control. The plaintiff's case was that he tried shifting down the gears by double‑declutching and was unable to do so because the accelerator was sticky and he was unable to place the vehicle into a lower gear. He then applied the foot pedal on the brake which was spongy and when this second method did not work the plaintiff employed a third option which was to engage the hand brake which in turn operated the trailer brakes. This method slowed the vehicle down to an extent but not sufficiently to avoid a collision with the gate.
It was the plaintiff's case that the accelerator problem was a persisting one and attention had been brought to it by means of a requisition in December 1994 but the problem manifested itself again on 3 January 1995, which was highlighted by another work requisition both of which were filled out by the plaintiff, the latter being the day before the accident. For this reason the plaintiff alleges that the defendant knew of the problem with the accelerator and had known of it since December 1994 but had not fixed it. The plaintiff alleges that even if the task of fixing the problem was delegated to competent contractors, nonetheless the defendant operated the workshop at its depot and they employed persons at their workshop. The plaintiff contends that the fact that the defendant engaged a third party contractor to work with the defendant's own mechanics does not absolve the defendant completely of the (non‑delegable) duty of care the defendant owed to the plaintiff. In any event the plaintiff claims that the defendant had a duty to coordinate the operation of the workshop including the activities of its own employees and subcontractors to ensure whatever tasks allocated were carried out properly. In this context it is alleged that the problem which manifested itself in December 1994 was not fixed or adequately fixed as it re‑occurred on 3 January 1995 the day before the accident, which allegedly was partly caused as a result of the sticky accelerator.

A further breach of duty allegedly arises from sludge found in the air tanks of the vehicle or prime mover. Sludge is drained by a system of cords which are connected from the chassis of the prime mover to the outlet or drain valve, sometimes called a bleed valve of each individual air tank. It was part of the plaintiff's case that the process of draining the air tanks takes about 40 minutes and involves pulling a particular cord to drain or bleed the air tanks of water that collects in the system as a consequence of air being held at high pressure which causes condensation inside the tanks as a result of differential temperature. The plaintiff's case was that on the prime mover 527K, that he was assigned to drive on the days leading up to 4 January, he believed that there were only two air tanks that required draining, which is what he did.

The evidence

The plaintiff was born on 11 May 1956 in the United Kingdom. He immigrated to Western Australia with his family when he was a child and completed his education in Manjimup where he left high school after completing year 10. He married in 1977and has two adult children of that marriage, which ended in divorce in 2002 following his separation from his wife in 2000. After leaving school in 1971 he worked for two years as a general hand at a timber mill before travelling to Perth in 1973 and working for a few months as a labourer with a plumbing business. He then worked as a labourer for Australian Iron and Steel but left that job after a short time as a result of an adverse reaction to chemicals to which he was exposed to in the course of his employment. He returned to working in the timber industry felling trees, but left that employment as a result of the poor rate of pay. He then worked for CSBP in Kwinana for a short time before joining Cockburn Cement as a trade assistant to a motor mechanic in 1975. In that capacity he was driving forklifts, front end loaders and bulldozers. Approximately five years later in 1980 he left that employment and negotiated the purchase of his own truck with a view to starting his own business. In that capacity he worked as a sub‑contractor transporting motor vehicles and continued to do this until approximately 1983 when the business was sold. A major consideration in the sale were the very long working hours the plaintiff was required to put in to the business six days per week.
He then returned to driving vehicles for Brambles before moving to R J Coleman Transport in Fremantle where he worked in a supervisory capacity programming delivery trucks until December 1985. At that time the plaintiff obtained a position working on the wharf in Fremantle where he was engaged in a building project. That finished in approximately mid‑1986 at which time he went to work for Agrifeed International as a driver, before working his way up to the position as a supervisor within that division of the business. He returned to work for Brambles driving trucks carting cement and lime in late 1986. He left that job and worked for a short time with a firm called Liquid Air, supervising delivery trucks for approximately a year but in March 1988 he returned at Brambles request to work for them, which he did until December 1990. At this point the plaintiff purchased a truck and ran his own business, whereby he worked in general earthworks before selling the business, it would appear at some point in 1991, in order to work for the defendant.
The plaintiff's recollection was that in February 1992 Mr Irvan, an employee of the defendant asked the plaintiff if he would work as a relief driver carting quick lime and delivering it to the Alcoa site in Kwinana or South Coogee as it is some times called. This involved the plaintiff driving either a semi‑trailer vehicle or a prime mover with a trailer attached. The plaintiff was carrying out relief driving work as a casual employee, driving lime tankers to Alcoa sites and on other occasions he would drive tip‑trucks around the metropolitan area. He delivered quick lime from Cockburn Cement in South Coogee to Alcoa Refineries including the refinery in Kwinana. He would drive from the defendant's premises in Kwinana to Cockburn Cement in Kwinana in either a prime mover with a trailer attached to it or a semi‑trailer vehicle. The vehicle and trailer (where relevant) would be loaded with cargo by means of the vehicle being driven under a silo where the plaintiff would climb, by means of a ladder, onto the top of the vehicle or associated trailer and open the hatches so that the silo operator could drop a loading sock or socks, being a type of schute into the hatch area of the vehicle and/or trailer, and the load would be deposited into the storage areas of the vehicle. The route that the plaintiff would then follow according to his evidence and with reference to Exhibit 10, a page from the 2007 UBD, was along Rockingham Road before turning right into Beard Street before making a further right hand turn into Morley Street. A right hand turn would then be made into Weston Street before making a hard left hand turn into an access road leading to Alcoa's premises. That hard left hand turn occurred about 150 metres after turning into Weston Street. The turn from Beard Street to Morley Street, depending on traffic, occurred at a speed of approximately 25 to 30 kilometres per hour and if the plaintiff had to stop the vehicle before making a turn into any street in the course of the journey, he said he would have to make four or five gear changes and would therefore be in fourth or fifth gear when making the turn or prior to doing so. In relation to the sharp 90 degree left hand turn into the access road leading to the rear security gate at Alcoa's premises, the plaintiff's recollection was he would be travelling at approximately 10 ‑ 15 kilometres per hour. Once on the access road it was approximately 600 to 700 metres distance to the security gate. He would travel along that road at a maximum speed of 50 to 55 kilometres per hour and had a relatively uninterrupted view of the security gate from approximately 500 metres away from it.
The plaintiff agreed there was a stop sign on the security gate which was of solid construction involving a form of netting wire and hollow tubular steel. The gate was approximately six metres long and approximately two metres high. In his view it would not have been safe for two trucks to pass through the gate simultaneously as there would be a significant risk of them colliding. The gate was generally only used for delivery trucks to enter and exit the premises, although occasionally utility vehicles working at or around Alcoa would access the premises through the gate. It was not used for general traffic to enter or exit the site. The gate was on a roller type mechanism embedded into the road and it would retract fully to allow trucks or vehicles to enter or exit the premises. The plaintiff's recollection was only one vehicle or truck could safely pass through the gate at any one time and it took approximately 30 or 40 seconds for the gate to fully retract to the open position and then on the plaintiff's estimate a further 20 seconds before one could hear the gate commencing to close, one having driven through it and entered the premises. It was also the plaintiff's understanding that having brought his vehicle to a complete stop some one to two metres from the gate, by means of a surveillance camera at the gate security personnel could see a particular truck or vehicle waiting to enter the site and utilising an automated system they would then release the gate so that it opened and closed at appropriate times. The plaintiff's further recollection was between 90 and 95 per cent of the time that he attended the premises in the course of his delivery work, it was necessary to bring his truck to a stop in order to wait for the gate to commence to open.
After loading the vehicle for delivery the procedure was a driver would then drive to the weighbridge and weigh the vehicle before leaving to go to the refinery delivery site. Having gained access to the premises via the automatic rear security gate, a driver would then pull the vehicle along side a discharge silo and where a semi‑trailer was being utilised three unloading hoses would be connected to it and one hose was connected to an external air supply which, once the system was activated, would cause air pressure to pressurise the tanker to 100 kilopascals after which the driver would open up an air line to boost the product as well as opening product valves allowing the line to be pressure pumped up into the discharge silos. Once the vehicle was emptied of its load the hoses would be disconnected, the driver would then leave the premises via the rear security gate after waiting for it to open, by much the same means as the driver entered the premises through the security gate. In the course of a normal working day a driver would carry out eight round trips or eight delivery trips to the site in question. The plaintiff estimated that to discharge a load at the Alcoa Kwinana site would take 25 to 30 minutes for a semi‑trailer and 35 or 40 minutes for a truck with a trailer attached this resulting in a 12 to 12½ hour day, if no delays were experienced.
On 4 January 1995, the date of the alleged accident, the plaintiff commenced work as was his usual habit shortly before 5 am. On that date he was assigned to cart lime from Cockburn Cement to Alcoa's premises in Kwinana. On arrival at work he followed his usual practice, which was the requisite pre‑start inspection of the vehicle he was to use. His recollection was on this particular day, he first checked the oil and water on the truck K527 being a semi‑trailer. He explained that it was a cab over vehicle, meaning it did not have a bonnet. Rather the front of the vehicle was vertical to the driver who was positioned a very short distance from the front of the truck. This vehicle had one trailer attached to it and also had a circular bull‑bar which was 2 to 3 inches thick attached to the front of the truck. It was his practice to start the vehicle up, have a cup of coffee while doing paper work and ensuring by means of addressing the pre‑start inspection that the vehicle was road worthy. It was necessary to start the vehicle up as it could be cold having been stationary during the night. It was also necessary to allow the vehicle to warm up and build up air pressure because its braking system relied on full air pressure. The air was stored in air tanks on the truck. Trucks lost air pressure over night when stationary as the engine was not running and to build up that air pressure it was necessary to in effect run the truck because from a safety perspective the air pressure was connected with brake usage.
In his evidence the plaintiff explained that the air tanks contained the tanks used to activate the brakes and that each truck was fitted with a compressor attached to the motor, so when the motor was running the compressor was also running and building up air pressure in the tanks. This was necessary otherwise the brakes would not work, and further there was a safety device on the vehicle, so that if air pressure was lost a maxi brake would come into operation, locking the brakes on. This mechanism could not be released until the air pressure built up to a certain level. Air pressure was therefore required to build up in the air tanks both to operate the brakes and disengage the maxi brake device if necessary. The air pressure was monitored by means of observing a gauge on the dash board of the vehicle. The pre‑start check also involved ensuring that the various lights and indicators on the vehicle and associated trailer, if relevant, were in working order. The windscreen and mirrors were checked to ensure that they were clean before the first journey of the day commenced. It was necessary that documentation be completed relevant to the pre‑start check and to this end a standard form was provided to the driver of the particular vehicle in question. Among other things, that form provided a vehicle check list as well as a safety equipment check list which the driver was required to fill in and complete at the time of the pre‑start check. This was completed by means of a tick where the item was in working order or checked satisfactorily or a cross where that was not the case. Relevant to this action the plaintiff completed four of those forms being Exhibit 3A on 28 December 1994, Exhibit 3B relates to 29 December 1994 and Exhibit 3C relates to 3 January 1995, and Exhibit 3D relates to 4 January 1995.
With respect to the first and second delivery trips to Alcoa Refinery on 4 January 1995, which were without incident, the plaintiff also completed standard Boral Transport Limited documentation sheets, Exhibit 2A and Exhibit 2B showing his start and finishing times for the particular trips as well as the gross, tare and net tonnes involved relevant to the weight of the vehicle concerned and its load. Exhibit 2C is the same type of document completed for the third delivery by the plaintiff in his vehicle to Alcoa premises on that date, at which time he was involved in the alleged accident at the rear entry gate to the Alcoa premises.
As part of the pre‑start or pre‑operation procedure the plaintiff said that once the vehicle was ready to go the driver would drive it forward to check that the brakes were in working order. Prior to his first delivery trip on 4 January, the plaintiff said he drove the vehicle K527 around the defendant's yard because he had experienced problems with the brakes on that vehicle on 3 January. In fact according to Exhibit 1B a work and service requisition, number 14506 completed by the plaintiff on 28 December 1994 he noted that the vehicle K527 had a problem whereby the accelerator was sticking open and the maxi brakes locked on at times when the park brake was on and that the exhaust brakes were unserviceable (u/s). He gave that particular requisition to Mr Jamie McVeigh in the defendant's mechanical workshop area. It was the plaintiff's understanding that the workshop was owned by the defendant. The plaintiff explained that he told Mr McVeigh that he would apply the brakes intermittently and the pedal would be spongy, meaning that the brakes would not come on very quickly when depressed as one would normally expect, rather one would have to depress the brake pedal a considerable distance before the brakes would engage or one would depress the brake pedal and nothing would happen until suddenly the brakes would then engage. The plaintiff drove that same vehicle K527 on the morning of 29 December and despite a couple of instances when the brakes did not feel quite right and the accelerator was still sticking, overall the situation appeared to have improved. Nonetheless, he stressed that the foot accelerator was still sticking and when the accelerator pedal was depressed the engine would rev up but those revs would not decrease when the plaintiff took his foot off the accelerator. It was necessary to depress the accelerator pedal a couple of times in order to release it and resolve the problem.
The plaintiff experienced the same type of problem with vehicle K527 on 3 January and as a result completed another work and service requisition, Exhibit 1A, which he provided to Mr McVeigh at the end of that day. On that document the plaintiff noted that the accelerator was sticking and there was an intermittent fault with the brake pedal, which would go to the floor without the brakes engaging and then the brakes would lock up or gentle pressure on the brakes would cause them to lock up. On both 28 December 1994 and 3 January 1995 the plaintiff required the problems he noted to be addressed as soon as possible. On the afternoon of 3 January the plaintiff informed Mr McVeigh that he was still experiencing problems with the brakes on the vehicle of a similar nature as he experienced previously. On 3 January the plaintiff obtained a yellow "out of service" tag which at Mr McVeigh's direction he placed on the steering wheel of the vehicle indicating the brakes were faulty. This was to signify to anyone else that may use or attempt to use that vehicle that the brakes were faulty, because it was not a vehicle assigned exclusively for use by the plaintiff. The plaintiff left the truck in the workshop area of the defendant's premises that evening before going home. The following morning when he arrived at work and was to use the same vehicle, the plaintiff said it had been moved to the general yard and the "out of service" tag was no longer on the steering wheel. As he did not remove the tag himself and the truck had been moved back into the general yard, the plaintiff assumed that the problem with the faulty brakes had been rectified.
He said that he was not particularly familiar with the workings of that vehicle as it was one of a number of trucks he was required to drive in the course of his employment, although he was familiar (or so he believed) with where the air tanks were located on it. He was able to obtain this information because through the chassis there was a wire or string with a plastic knob on it, which indicated that there was a drain valve located in a particular position for the air tanks on the vehicle. The drain valve was there to drain the condensate out of the air tanks. It was then simply a matter of the driver pulling the cords connected to the bleed valves which were in turn connected to the air tanks. The pulling of the cord would cause the valve to open and this would then allow the condensate to drain from the air tank onto the ground which would take three to four seconds per tank. The condensate was essentially moisture which was generated in the air tank and it was necessary to drain the air tanks as part of the pre‑start inspection procedure each morning. The plaintiff's evidence was it was also his habit to drain the air tanks of any particular vehicle he was driving more than once per day, some times three times per day, but on the 4 January 1995 his recollection was he carried out the draining procedure only once as part of the pre‑start inspection, which was all that was required as part of the pre‑start check.
His evidence with respect to the vehicle K527 on 4 January was there were two air tanks which he believed were on the left hand side of the truck, although the cords or the location of the particular tanks were not pointed out to him by anyone, nor did he receive any instruction as to the number of air tanks or their location on any particular truck he was required to drive by the defendant. He said the defendant was using various makes and models of trucks at the material time, both at their depots in Kwinana and Guilford. Some trucks had two air tanks, some had three and others had four.
The plaintiff explained that the truck or prime mover in question had brakes and the trailer it was towing or that was attached to it also had brakes. On the morning of 4 January he drove the truck for about 300 metres around the yard and tested the brakes but noted no problem with them. He felt the trailer brakes activate when he pulled down the relevant lever and then drove forward and depressed the footbrake which activated both the brakes on the prime mover and the trailer. He explained that the truck had a road ranger gearbox, which was non‑synchromesh, requiring the driver to depress the clutch, move the gear shift into neutral before letting the clutch out again whilst the gear shift remained in neutral, rev the engine by activating the accelerator and then depress the clutch again before selecting a lower gear. This was necessary because that type of gearbox required the cogs to spin faster in order to select a lower gear which would in turn enable the vehicle to slow down. He commenced this double declutching procedure when he estimated he was between approximately 51 to 85 metres from the gate and travelling at around 55 kilometres per hour in fifth gear, which he said would have been in the high range. In that model of truck low gear covered gears 1 to 4 whereas high gear covered gears 5 to 8, which in effect meant that he was in the first or lowest gear in the high range. Having shifted into neutral the plaintiff said he put his foot on the accelerator to rev the engine and he noted that the accelerator stuck, so the engine revs remained fairly high and would not drop, which in turn prevented the plaintiff from selecting the lower gear as the engine revs were too high. He then placed his foot on the footbrake and noted that the pedal felt fairly spongy and did not seem to activate, therefore the brakes did not seem to come on. The footbrake on the truck operated both the brake on the trailer and the brake on the prime mover, whereas the hand operated lever for the trailer brake only operated the trailer brakes. By this point the plaintiff was approaching the gate and so he said he reached over to the dashboard and activated the trailer brake. The low air warning buzzer did not sound to warn that the compressor was not building up air and it was being lost. When he first attempted to activate the footbrake he estimated he was about 34 metres from the gate. When he activated the trailer brake by pulling the relevant lever he estimated he was between 25 to 27 metres from the gate. Activating the trailer brakes worked to the extent that they appeared to come on and the truck started to slow down, but it did not come to a complete stop. The slowing down procedure that the plaintiff described in his evidence was one which he said was the usual procedure one would use to cause the truck to stop, particularly given he was aware that the exhaust brake on this particular truck was not operating, he having discovered this a day or so earlier. This is referred to in Exhibit 1B. If the exhaust brake was operational the driver would activate it, double declutch, select a lower gear and then re‑use the exhaust brake. However, in that model of truck, if one was for example, approaching the gate in question one would still use the footbrake because the exhaust brake system on that model of truck was not as efficient as in other trucks. The exhaust brake system was simply a mechanism to slow the truck down and save wear and tear on the brakes. The plaintiff also explained that he did not apply the park brake because on his understanding it only operated on one axle of the prime mover and there was a danger it could lock up the wheels and cause the vehicle to jack‑knife.

When the plaintiff was between 25 and 27 metres from the gate he was in neutral gear and estimated that he was doing between 40 and 45 kilometres per hour, but stressed that this was only an estimate and he was not looking at his speedometer, rather he focussed on trying to stop the vehicle. The vehicle did decrease progressively in speed once the trailer brakes were applied, but did not come to a full stop and as the gate was in the plaintiff's words "closed" he said he ran into the gate. The plaintiff's estimate as to his speed at time of impact was approximately 20 to 25 kilometres per hour, but it became common ground at trial, relevant to other evidence that was led, that the plaintiff's vehicle at that point could not have been doing any more than 11 kilometres per hour.
The plaintiff's next recollection was another Boral driver, Mr Geoffrey Edwards was alongside the plaintiff in the truck and the plaintiff assumed he had, in his words, "been knocked unconscious or something" because he did not have a recollection of the period between hitting the gate and seeing Mr Edwards in the truck with him. The plaintiff also said that he had a headache at the time, so he assumed that he must have hit his head somewhere but he had no independent recollection of this, it was simply a possibility. He was unsure if he told Dr Bajada that he had lost consciousness as a result of the accident. At the time of the collision the plaintiff was wearing a lap type seat belt and immediately after the collision he described feeling very shaken and suffering pain in his neck, severe pain in his lower back and down the right side of his body as well as pain in his right shoulder blade and pain in his right leg and left kneecap. Mr Edwards advised the plaintiff that the Alcoa ambulance was being called and to remain still. The plaintiff said another person, a Ms Heidi Dueth, was present when he was removed from the vehicle but he did not see Mr Greg Jones at the scene. The plaintiff also observed through the windscreen that a tractor attended the site and removed the gate from its hinges so that people could get access to the plaintiff in the cabin of the truck because the gate was blocking the right hand side driver's door.
The plaintiff reiterated that as he approached the gate before the point of impact it had commenced to open when he was no more than 30 metres from it. Nonetheless he did not have enough time to pass through the gate and estimated that it would have been open between 1 metre and 2 metres at the maximum when he came into collision with it.
The plaintiff agreed that in the late 1970's when he was driving for Cockburn Cement for two years or so, it was part of his daily routine to identify where the air tanks were on the trucks that he was driving, generally by looking for the drain strings attached to them and he followed a similar routine after he left that job and went to work as a casual truck driver with Brambles, where he failed to gain permanency, in 1990. It was during that period of employment that the plaintiff agreed he had an incident where he fell off a wheel brace and said he had a small jar to the back but suffered no ill effects and did not claim workers' compensation, although he did attend Dr Forbes relevant to the incident. In examination‑in‑chief the plaintiff in answer to a question said that prior to 4 January 1995 he did not have pain in his lower back. When he failed to gain permanency, the plaintiff took legal action against Brambles and received a small amount of money by way of compensation. He denied that when he went to work for the defendant he was given a week's induction course by driving around with another driver for that period.
Whilst the plaintiff admitted he was very familiar with the access road leading to Alcoa's premises, he had previously used a different entrance gate and so his experience with the gate in question was limited to the amount of time since he had started working with the defendant. There was on his recollection a reduction in speed approaching the gate signified by a sign saying "reduce speed" but there was no speed limit on the access road itself at the time. Certainly, there was a very sharp left hand bend leading into the access road which the plaintiff agreed could be safely taken at some 15 to 18 kilometres per hour, depending on the load one was carrying. The plaintiff reiterated that on all previous occasions when he had approached the gate in his truck, he would probably stop 1½ to 2 metres back from the gate which would then open fully during a period of 30 to 40 seconds and he agreed that it would remain fully open for 20 seconds prior to commencing to close. The majority of times the plaintiff approached the gate he would have to stop to wait for it to commence to open, but on rare occasions it would start to open as he approached the gate and the morning of 4 January was one of those rare occasions. He said that he did not follow another vehicle through the gate on that occasion, although he was aware that another Boral truck was unloading at the premises at the time. However, that driver was half an hour ahead of the plaintiff in schedule. The plaintiff rejected the suggestion that as he approached the gate it could have been closing. Rather he insisted that it was in the process of opening and denied he assumed as he approached the gate that it might open far enough to allow him through.
In the course of cross‑examination the plaintiff was directed to a series of photographs contained in Exhibit 20, being an accident report prepared by Mr Martin Simms & Associates Pty Ltd dated 31 March 2003. The photographs concerned were taken by Mr Simms at the defendant's premises on 27 September 2001. The plaintiff agreed that photograph 1 was a driver's view of the approach to the main gate of the defendant's premises from the crest of a rise and that although it was taken some six and a half years after the accident it still represented that view accurately. Similarly, photograph 2 represented a general view of the gate whilst photograph 3 showed the right hand side of the gate with the guide rollers, taken from the outside of the premises looking into it. Photograph 4 shows a close up of the upper guide rollers of the gate whilst photograph 5 shows the gate support rollers and track, they being on the bottom or lower portion of the gate. Photograph 6 shows a view of the observation camera monitoring approaching vehicles, but the plaintiff could not be sure that that was its location at the time of the alleged accident. Photograph 7 shows a view of a prime mover with tanker trailers attached, facing the entrance of the gate. The plaintiff's recollection regarding photograph 8 was that although it showed a view of the gate drive motor on a stand adjacent to the gate, in January 1995 he believed the drive was closer to the ground than depicted in the photograph. Photograph 9 he agreed shows the gate stationary or partially opened. He disagreed relevant to photograph 10, being another view of the gate from the outside looking into the premises, that it showed the position the gate was in at the point of collision, because if it did in the plaintiff's opinion that would have given him room enough to bear or move to the left and pass through the opening without striking the gate. In his estimate at the point of impact the gate was probably about one third open. At the time he did not look at any marks on the road or adjacent to the gate.
The plaintiff agreed that photograph 11 showed the inside top gate guide roller whilst photographs 12 and 13 depicted the gate, adjacent to gouge marks in the road surface. He further agreed that photograph 14 showed a dent in the lower rail or member of the gate but he disagreed that photograph 15 showed the position of his vehicle at the point of impact with the partially open gate. All he could say was the bull bar on the vehicle he was driving did hit the gate at the time of the collision but he could not be exactly sure as to where it impacted. As a consequence he knew the gate was pushed back but could not say at what position it came to rest.
Relevant to photograph 17 the plaintiff agreed that notwithstanding he was driving a cab‑over vehicle as distinct from a semi‑trailer, as in a bonneted vehicle, the photograph depicted the position of his vehicle as it came to rest after the collision, which appeared to be about four feet in front of the line of the gate or, put another way, four feet beyond or over the lower guide rail for the gate. Again, the plaintiff disagreed relevant to photograph 18 that it showed the position of the truck he was driving on 4 January, relevant to the position of the gate because he reiterated that if the position was as depicted in photograph 18 the distance on the left hand side of the photograph would have permitted him to manoeuvre his truck through the opening so as to avoid a collision with the gate. He denied the opening was at any time wide enough for him to be able to steer his vehicle to the left and pass through the gate without incident. He did agree, however, that photograph 19 depicted the other side of the semi‑trailer in the photograph with the gate obstructing access to the right hand side of the vehicle in the sense that the gate was up against the right hand side of the vehicle depicted in the photograph. Put shortly, the plaintiff's evidence was that when his vehicle came to rest after colliding with the gate, the end of the gate was to the left or to the centre of his vehicle pretty much in the middle of the cab at the front of the truck and in the middle of the bull bar running across the front of the truck. He accepted that photograph 20 depicted a view of the gate in a partially open position taken from inside Alcoa's premises looking back out to the access road.
In relation to a scenario put to the plaintiff in cross‑examination that a buzzer sounded in the control centre on the day of the accident causing one of the two persons in the central control tower to immediately press a button to allow access through the gate and that immediately after pressing the button the truck the plaintiff was driving impacted with the gate, therefore the accident could not have occurred in the manner that the plaintiff alleged, he reiterated that his evidence as to its occurrence was what happened. The suggestion to the plaintiff was that on his account there was no time from the point at which the buzzer sounded to the activation of the gate to allow it to open to a point where the plaintiff maintained it was when the accident occurred. The plaintiff denied again that on the day in question the gate may well have been opened by someone coming out of the refinery and that the plaintiff in those circumstances attempted to get through the gate and misjudged the distance available to him to do so. He said he was in a state of panic when he realised that the brakes had started to fail and he was trying to control what was occurring by, for example, depressing the pedal on the footbrake, which failed to activate, so he pumped it a couple of times to no avail. He disagreed that at the time he was doing a speed of between 45 and 55 kilometres per hour which was too fast in the circumstances.
Once the footbrake failed the plaintiff's only option was to pull on the trailer handpiece or lever in an attempt to slow his vehicle using the trailer brake. He reiterated that he did not have the option of applying the park brake, as it only locks one axle on the prime mover and he explained again that this may cause locking of wheels and consequent jack‑knifing of the vehicle. The first option that came to his mind was to use the trailer brake to try and slow things down. The park brake did not really come into his mind at that time, but in any event that would not have applied brakes to all of the systems on his understanding. To put it in context, in the explanation he was giving in his evidence the plaintiff said that the prime mover, is the hauling part of the semi‑trailer which is actually behind the prime mover, with the prime mover being a type of towing tractor. On the day in question the prime mover the plaintiff was driving was connected to a single trailer.
Having applied the trailer brake the plaintiff continued to maintain pedal pressure on the footbrake and in fact did so until the vehicle came to a stop and he noticed no effect from placing pressure on the footbrake. All he felt was slowing when he applied the trailer brake and reiterated that he was unsure exactly what speed the vehicle was travelling at when it collided with the gate. He claimed that his assessment of 20 to 25 kilometres per hour was simply that. He said initially his first gear change down as he approached the gate would have been when he was about five to seven truck lengths back from the gate and the second gear change down would have been when he was two to two and a half truck lengths from the gate to slow the vehicle down but he did not actually manage to change gears. Having reconsidered that aspect of the matter in re‑examination the plaintiff then said he would have been about three to four truck lengths back from the gate when he first put the gears into neutral. He explained with reference to Exhibit 11 where he would bring his vehicle to a halt in the normal course of events relevant to the gate, before bearing right and driving through the gate prior to turning left into the silo area which was about 100 metres away. He made it plain that in the normal course of events when the footbrake is applied it automatically activates the trailer brakes causing the whole unit to be under brakes and that one would not operate the trailer brakes separately as this would result in only half braking.
After he was removed from the truck cabin and placed in a neck brace the plaintiff was taken to Fremantle Hospital where x‑rays were taken. The first medical certificate issued at Fremantle Hospital on 4 January 1995 diagnosed right neck pain and pain in the thoracic and lumbar spine, a soft tissue injury and the plaintiff was certified unfit for one week.
After the plaintiff was released late that afternoon from the hospital he went home. He said in answer to what was a leading question that he consulted his GP, Dr Forbes, the following morning as he was still feeling very sore and stiff in the back, neck and left knee. This was clearly an error in recollection on the part of the plaintiff as he did not consult Dr Forbes until 11 January 1995 when he was certified unfit for two weeks. The defendant was short of drivers and as the plaintiff was only a casual employee at the time, he wanted to demonstrate his reliability and so he enquired of his GP if he could return to work and was told he could do so but to avoid squatting, excessive lifting or bending. He did a full day's work but said he was in quite a lot of pain, though he returned to work the following day. He did not work Saturday, 28 January and whilst at home sitting reading the paper at the kitchen table he experienced numbness to the right side of his face, pins and needles in his right hand but no accompanying headache. When he stood up his right leg collapsed from underneath him and he fell. He was unable to work the following day as a result. This incident was mentioned by the plaintiff but in the end result at trial it was conceded that it was in no way connected with the alleged accident of 4 January 1995 or its sequelae.
The plaintiff was unsure but believed he was off work for about a month and returned to restricted duties with the defendant doing paperwork for two or three weeks. The defendant then hired a rehabilitation provider to assist the plaintiff to return to work truck driving so that the plaintiff built up to undertaking a full driving shift in about April 1995. He could only carry out two full shifts before intense pain in the right side of his back radiating into his right leg prevented the plaintiff from continuing to drive. He agreed he made a claim for compensation for 29 September, 16 to 18 October and 9 and 10 November 1995 but generally worked his normal shifts until December 1995. He had a week off work between 29 December 1995 and 6 January 1996 due to an exacerbation of symptoms. He then returned to work. He was advised to seek alternative work but was desirous of continuing his driving job with Borals because he enjoyed it.
Thereafter he said he applied for office jobs and work as a weighbridge operator but he did not obtain that employment. He worked as a trainer for the Road Training Council for three months, and he was offered a job driving forklifts and a front end loader at CSBP and Farmers which he did for approximately six months before once again he found a full driving shift resulted in considerable pain in his lower back. In cross‑examination the plaintiff was reminded that he went on a six week family holiday to the USA in mid‑1995, which apparently had been booked some time earlier. On his return he returned to work with the defendant doing four hours clerical work and four hours driving per day. By September 1995 the plaintiff was doing between 11 and 13 hour driving shifts per day. He agreed this was probably correct when referred to documentation indicating that he claimed and received compensation payments for 29 September, 16 to 18 October and 9 and 10 November 1995. He remained carrying out full driving duties until the period 29 December 1995 to 6 January 1996 when he had the previously mentioned exacerbation for which he received compensation. The plaintiff returned to work with the defendant, albeit wearing a back brace. As counsel for the plaintiff pointed out, this incident was never proffered as the reason for the plaintiff leaving his employment or ceasing truck driving.
Three permanent driver positions became available with the defendant in early 1996 but management were concerned that the plaintiff could not cope with the work. When he learned he would not be considered for the jobs the plaintiff agreed that he suffered an episode of amnesia for two or three hours. Dr Patel certified him unfit for work after which time the plaintiff did not return to work with the defendant, although Dr Rosenthal's view as to the plaintiff's fitness for work at this time was at odds with that of Dr Patel.
After leaving CSBP and Farmers the plaintiff applied for a job with Consolidated Training Services, but unfortunately, they went bankrupt 10 days after he commenced working with them. The plaintiff then commenced his own training business, Transport & Earthmoving Trainers, in approximately March 1997. He was the only employee in his business, which was concerned with training people in the operation of earthmoving equipment and forklifts. He received assistance by way of mentoring and training in that enterprise for about 12 months as well as financial support from New Enterprise Incentive Scheme which was equivalent to unemployment benefits of approximately $320 to $360 a fortnight. He ceased working in that business however due to personal problems related to a marital breakdown in 2000. He explained that there was considerable pressure exerted on the relationship following his accident, as his wife was obliged to find employment to assist in supporting the family because there were financial difficulties as a result.
The plaintiff then applied for a job with another training organisation, Nationwide Training, and eventually he was promoted to the position of training manager. Once more he was involved in training persons relevant to the use of forklifts, transport of dangerous goods and suchlike. His starting salary was $46,000 per annum and this increased to $55,000 in approximately 2004 or 2005. He remained with that organisation for approximately 14 months during which time he undertook further study at TAFE and completed a diploma in occupational health, safety and training in combination with other studies. He completed his training in 2006 at Edith Cowan University following part‑time study. After leaving Nationwide Training the plaintiff applied for a safety position with Works Infrastructure and commenced employment with them in August 2005. At time of trial the plaintiff was still employed by that organisation and in fact had been promoted to the position of safety manager earning $70,000 per annum. He is responsible to a safety manager and has two safety officers under his supervision. The plaintiff said that as a result of his back condition he is not required to undertake any manual labour or manual handling. He stretches and moves around his desk from time to time and he is not permitted to drive for more than three hours without a break as this exacerbates his neck and back pain. He is required as part of his duties at times to travel within Western Australia to various locations by car or plane. His work station has been redesigned to take account of his physical restrictions. In his job he essentially conducts pre‑start meetings with workers in the mornings relevant to safety issues and he promotes safety within the organisation, which also includes undertaking site inspections and on‑site audits to ensure proper safety practices are applied.

At the time of giving his evidence the plaintiff said he still suffered pain on a relatively constant basis, although it varies in intensity from day to day. He deals with the problem by taking Nurofen which he purchases for around $16 or $17 per 90 tablets. He takes a maximum of six tablets per day but often less and finds the pain worsens if he has been working a difficult or long week. Prior to the alleged accident the plaintiff was a black belt karate instructor and he was also involved in coaching a junior football club. Post‑accident he has been unable to continue with his karate due to pain and after approximately 12 months he abandoned his involvement with football. He no longer rides a bike for fitness. The plaintiff used to carry out 40 minutes gardening or so per week pre‑accident and he would mow his lawn once per fortnight. He used to carry out general home maintenance such as painting and cleaning on an intermittent basis, but he now has had difficulty carrying out those activities since the accident. Following his separation and divorce the plaintiff, however, continued to clean his own accommodation and do his own washing and ironing. He lives alone and has sold his own home in order to move into rental accommodation. Essentially he can manage to do most things but at a slower pace than pre‑accident. The plaintiff's book of economic documents being notice of assessment for the financial year ending 30 June 1990 to the financial year ending 30 June 2005 became Exhibit 4. The plaintiff also explained that he has received workers' compensation for his injury and that sum of $17,751.08 is not in dispute.

Jeffrey Edwards

Mr Edwards was working for the defendant as a truck driver in January 1995 and as a consequence he knew the plaintiff. He learnt that there had been an accident on 4 January at the Alcoa Refinery involving a truck coming into collision with a gate but he personally did not observe that incident although at the time Mr Edwards was at the Alcoa Refinery, unloading his truck. At trial he did not have an independent recollection of the events of that morning, but he did make a statement on 11 January 1995, Exhibit 15, which he signed and dated and having refreshed his memory from that document, agreed with its contents. In this respect it should be noted that his lack of independent recollection or memory is understandable given the very lengthy delay between the alleged accident and time of trial. However in my view this creates some difficulty in the witness recalling particular details of the accident.
According to the statement he heard the rev of a motor and directly following that, heard a thud. He looked in the direction of the noise and saw the truck K527 sitting against a security gate. He could not recall the position of the rear security gate following the collision. He went to the plaintiff's aid and saw the plaintiff sitting in the driver's seat in a visibly shaken condition. Assistance was summoned and Mr Edwards operated the maxi brake to secure the truck. Mr Edwards stated that after the truck was inspected by Kwinana Mechanical and the hand throttle was disconnected as a precaution, he unloaded the tanker and drove it back to the Kwinana depot and then on to Kwinana Mechanical Repairs workshop. On that trip he experienced no problems with the throttle on truck K527 sticking, however he did say the brake pedal felt spongy on two occasions. In his sworn testimony he said that this meant the pedal would have travelled further than normal, although in his view this would not be unusual and could happen in any vehicle. He said that he would not have driven truck K527 away from the scene following the alleged accident if he had considered it unsafe to do so.
Mr Edwards was very familiar with making deliveries to the Alcoa Kwinana Refinery and in fact would make seven or eight trips a day, six days a week and had been doing so for approximately five years prior to the day of the incident. He was therefore familiar with the access road leading to the refinery and although he could not recall any speed signs on the road, he maintained that at the time it had a 40 kilometre per hour speed limit, which nowadays has been reduced to 30 kilometres per hour. As a result he would travel on that road between 30 and 40 kilometres an hour. He further agreed with reference to Exhibit 10 that there is a sharp bend of 90 degrees when one turns on to the access road and said if he was driving a truck with a full load, he would take that corner at a speed of between 10 and 15 kilometres per hour.

Mr Andrew Arki

As at January 1995 Mr Arki, a mechanic who possesses a trade certificate, had been employed by Kwinana Mechanical Services for about eight months. The manager of that organisation, Mr Dave Logan, employed Mr Arki and as far as he was aware at the time there was an arrangement in place between Kwinana Mechanical Services and the defendant whereby Mr Arki would carry out work on Boral vehicles as a result of which he was actually based in Boral's workshop working full‑time on their vehicle fleet. This was about a quarter of a kilometre away from the premises of Kwinana Mechanical Services. Mr Arki worked using his own tools at the defendant's workshop, but there were some very large tools such as large spanners and jacks that were the property of the defendant, which Mr Arki would use from time to time. He was paid weekly, based on an hourly rate by Kwinana Mechanical Services but he had no knowledge of what the arrangements were between that entity and the defendant regarding the defendant paying for Mr Arki's services.
He worked with Mr McVeigh a mechanic and a Boral employee in the workshop. Mr Arki reported to Mr Greg Jones, the transport manager, at the defendant's premises as required and would carry out tasks at Mr Jones's request on occasion.
Initially in his evidence Mr Arki said that he did not look at or work on the vehicle K527 prior to 4 January 1995. He maintained that he could not recall doing any work on K527 as a result of the work and service requisition of 28 December 1994, Exhibit 1B. However, in cross‑examination he was shown the work and service requisition, Exhibit 1A, and a work sheet dated 3 January 1995, relevant to repairs carried out on the vehicle K527. He agreed this demonstrated that he actually had carried out work on that vehicle on 3 January 1995 being the day before the alleged accident. He accepted that on that particular day he checked the brakes of the vehicle over a two and a quarter hour period. His recollection was that he must have put the vehicle K527 over the pits in the workshop and checked the alignment. He found nothing untoward in the sense of unsafe, otherwise he would not have allowed the vehicle to be returned to service. He did note that a part for the throttle cable or accelerator rod was required because it had worn through as a result of rubbing and chaffing. In order to carry out this work Mr Arki agreed that the document, Exhibit 1A, would have been given to him on 3 January. As part of his work on the vehicle that day he checked the brake linings which were quite thick, indicating that there was not a problem in this area. He also drained the air tanks or air system by getting into the cabin of the stationary vehicle and pumping the brake pedal manually with his foot. He then turned the ignition on because it was necessary to start the vehicle to determine how fast the air pressure was building up or how quickly the compressor was building up air in the air system. If the build‑up was slow, it would indicate that there was a problem. However he found no faults as the air pressure reached a satisfactory point within an appropriate period of time which he checked on his watch, believing at the time of giving evidence that would have been within about two minutes. As part of his work on the vehicle that day he then took the vehicle K527 for a road test by driving it down to the Old Mandurah Road. As a result of his inspection and work carried out on the vehicle on 3 January 1995 Mr Arki was satisfied that the brakes were in good repair and order. However, on that day he pumped the brakes only in the way he described and did not drain the vehicle air tanks. He was also aware on 3 January that there was a problem with the accelerator but it did not stick during his test drive of the vehicle.
On 4 January 1995, following the alleged accident, he inspected and carried out work on the vehicle K527. He said he did much the same type of work as the day previously, but on this second occasion he pulled the strings from the air tanks and noted that sludge came out of the tanks as a result. His recollection was there were three strings attached to three air tanks on the left side of the vehicle which he had no difficulty in locating. He estimated some 12 to 15 litres of sludge in toto drained from the three tanks, though on his evidence it was not clear how much sludge was in each separate air tank. He was able to make this assessment because he had a 20 litre plastic drum with the top cut off it and he put it under each of the air tanks, which were in close proximity to one another, before pulling the string and draining the particular tank concerned. As the drum did not fill to capacity or overflow he was able to make his estimate. Relevant to this draining activity Mr Arki explained that if a vehicle came into the workshop for a regular service, which was not the situation with vehicle K527 on either 3 or 4 January 1995, then generally the air tanks would be drained as part of the service, but nonetheless it was expected that individual drivers would drain the air tanks of the particular vehicle they were using on a daily basis. Drainage of the air tanks was not part of the requisition order in question as far as he was aware. The first two pages of Exhibit 16 (which was not a document completed by Mr Arki) relevant to a Boral monthly fleet inspection including vehicle K527, dated 2 December 1994, lists a number of faults with K527 including "clutch pedal TD master cylinder push rod pivot pin, 2 holes in pedal arms badly worn out, starter motor mount nuts loose, jack shaft front flange bolts loose, jack shaft rear uni joint u/s, RHR light bracket‑mount bolts loose, all four torsion arms bolts loose and/or bushes worn out, exhaust brake leaking air out of piston cylinder, air compressor oil lube hose leaking oil, and turntable pivot pins/bushes worn." In addition it was noted No 2, 3 and 4 spring saddles had broken away from axles and No 4 brake was worn out. It seems as a result some problems were repaired and parts ordered to rectify other problems.

Mr Mansell

Mr Mansell has been employed by Alcoa of Australia since 1980, initially as a security officer but in the `five years prior to trial he has held the position of an emergency response officer. By virtue of his job he is positioned in the main entrance security gate at the Alcoa Refinery in Kwinana. The premises which are quite large, have a number of gates and boom gates. He confirmed that there is a south gate, being the gate involved in the alleged accident, on the premises which was mechanised in approximately 1985, it having been a manned gate prior to that time. The mechanisation involved the installation of a motor which operated to open and close the south gate. He recalled that the motor initially was located on the ground but at a later point in time after 1995 it was moved or lifted half way up the gate to avoid water damage or damage by flooding. To the best of his knowledge however the same gate has remained in place since it was initially installed, albeit the motor may have changed.
The south gate was operated by either Mr Mansell or his colleague at the time, Mr Beacham, who apparently currently works for Alcoa at their Wagerup plant. There is a sensor under the road in a loop which is no more than 5 metres from the gate. When a vehicle passes over that sensor it causes a buzzer to sound in the main guard house and either Mr Mansell or his colleague, who would be sitting next to a bank of switches including the operation switch for the south gate, would then check by means of reference to a closed circuit television system in the guard house what type of vehicle was waiting to gain entrance to the premises through the south gate. There was also a security camera mounted on the gate which was connected to a CCTV system in the guard house. As far as he was aware the same system for operation of the gate had been in place since it was mechanised. Although he had not timed the period it took for the gate to open and close he did not believe that the rate had altered over time.
Mr Mansell was on duty on 4 January 1995 and became aware there was an incident involving a Boral truck colliding with the south gate around 9 am. It was his recollection that when he or his colleague had their attention attracted by the sound of the buzzer, after checking the CCTV monitor he would automatically press the button so the gate would commence to open. On the 4 January it was not Mr Mansell but his colleague Mr Beacham who pressed the button to open the south gate. He claimed that Mr Beacham stated the gate was not working, causing Mr Mansell to look at the CCTV monitor where he observed a Boral truck had impacted with the gate. This coincided with Mr Mansell receiving an emergency call and so accompanied by a nurse who was also an Alcoa employee he drove the Alcoa ambulance to the scene. When he arrived at the scene he believed he would have got into the cab of the truck in order to attend to the casualty. Once again, hardly surprisingly but most unfortunately given the passage of time between the alleged accident and trial, this witness could not remember very much about the position of the gate or the position of the truck involved in the collision. He did recall that the driver of the truck was treated at the scene and removed from the truck before being taken to Alcoa's medical centre and then transported onto Fremantle Hospital. He believed the plaintiff would have had a collar around his neck, but he remembered little else of that aspect of the matter. After he arrived at the scene the gate was moved by means of a crane or cherry picker to enable access to be gained into the truck cabin. This was the only accident of this nature involving the gate and a truck that he could recall during his period of employment with Alcoa, although he said on occasion trucks try to race the gate and as a result clip it.
Mr Mansell told the court that from time to time the gate has opened and has been about to close when the buzzer is activated but in that situation the gate will close first before re‑opening by means of the button in the guard house being pressed to open it.
Mr Mansell and his colleague were generally relatively busy during the day and would not attend the south gate regularly during that time, although at night time he attended there as part of his security patrol. During the day if a vehicle arrived at the gate and could not be identified the guard would either attend the gate personally or the occupant of the vehicle would get out of the vehicle and use the Clare‑call communication system, which consisted of a box at the south gate connected to a receiver in the guard house and that then enabled the person in the gate to communicate with the personnel in the guard house. If the occupant of the vehicle was a legitimate visitor, but not involved in deliveries for example the way Boral personnel were, they would be directed to the main gate, as there were only specific types of vehicles permitted to use the south gate to access the premises.
Initially, Mr Mansell said there were no situations when he observed a truck coming and recognising the vehicle or driver he would open the gate as the vehicle approached. He then said it was possible that such a situation would occur, particularly if during the day he was very busy. He pointed out there were times when the level of activity in the guard house meant that the buzzer was not heard and so the gate remained shut and the driver would then have to alight the vehicle and use the Clare‑call system. He thought that one could press the button and open the gate for an oncoming vehicle without the buzzer sounding. As to 4 January 1995 when he believed that his partner, Mr Beacham, pressed the gate open button as soon as the buzzer sounded, he agreed this was an assumption since no noise accompanied the pressing of the opening button in the guard house. In the end he said he could not remember whether he saw his colleague press the button or not. Similarly, although other people were in the vicinity of the alleged accident, after the lapse of time he could not recall who they were, except that it involved a fire and rescue crew with people operating the cherry picker or crane which he thought arrived after he did.

Mr Jones

In 1995 Mr Jones an employee of the defendant was the manager of the defendant's Kwinana operations and had held that position for approximately two years, following managing fleet services running all of the defendant's workshops. He left the Kwinana depot in mid‑1995 and worked elsewhere for the defendant for the next 12 months before resigning to take up a position with Brambles. He understood as at 4 January 1995 that the plaintiff was employed by the defendant as a casual driver and he was his manager at the Kwinana depot. Mr Jones became aware on 4 January 1995 of the alleged accident in which the plaintiff was involved and so he immediately attended the south gate at Alcoa's premises. He arrived shortly after being advised of the alleged accident and on arrival saw the rear of the plaintiff's vehicle parked in the gate aperture partly across its opening and the gate leaning at a 30 to 45 degree angle in front of the vehicle. His impression was the gate was in front of the bull bar attached to the vehicle. He formed the view that the gate was either in a partially retracted or partially open position to the right hand side of the vehicle. What Mr Jones recalled seeing became Exhibit 24 in diagram form. He estimated that to the left hand edge of the vehicle there was a 1.5 metre gap between the edge of the vehicle and the side of the gate aperture. He did not know the width of the opening or gate aperture but said the maximum legal width for trucks in the Boral fleet is 2.5 metres and he estimated the width of the gate aperture when fully opened was about 6 metres. In his estimate the vehicle when he saw it, was about a metre beyond or past the guide rail into which the bottom of the gate slotted. He saw the plaintiff being attended to by others and a cherry picker removing the gate from up against the right hand side of the vehicle. The cherry picker was located inside the Alcoa premises on the side of the gate closest to the side of the drive unit for the motor. He could not see any skid marks on the road, and given what he understood at the time, he caused the vehicle to be driven back to the workshop by Mr Edwards and tagged "out of service".
He was anxious to investigate the matter to see if the problem with that vehicle might also affect similar vehicles in the fleet and to that end engaged Max Winkless Volvo to send an expert to examine it. As part of the investigation he required the plaintiff to fill in a workers' compensation form and provide a statement as to the circumstances of the alleged accident. He received a report from Max Winkless Volvo as well as a report from Kwinana Mechanical Repairs relevant to their investigations, but Mr Jones also said in evidence he is a qualified mechanical fitter and has specialised in heavy truck and associated repairs. In addition, he had had considerable contact and training in relation to Volvo products, which stood him in good stead managing the defendant's fleet services and running a workshop to maintain their fleet. He was in charge of the mechanical repairs undertaken on the defendant's fleet of trucks and originally established the workshop at Kwinana, overseeing its staffing and creating the position of vehicle examiner relevant to examining the trucks in the fleet on monthly basis. Following the investigation relevant to the vehicle K527 after the alleged accident he considered it safe to put it back into service.

It was not put to the plaintiff that he was deliberately lying for financial gain or to enhance the prospects of the success of his claim so I do not accept this as the basis for what was clearly an error on the plaintiff's part. It was no doubt apparent to the plaintiff prior to trial and certainly it would have been known by his counsel and legal advisors that Dr Forbes, who had been the plaintiff's GP for many years, was going to give evidence at trial. It would also have been evident one would have thought because it is a matter of common sense at the very least, that Dr Forbes would be questioned regarding the plaintiff's history of attendances upon him and the plaintiff would have been well aware that over the many years of consulting Dr Forbes in relation to various matters that he had complained of low back pain on occasion. It would have been obvious that Dr Forbes would not have neglected to mention this. It cannot in my opinion be said that in his evidence or as part of the presentation of his case the plaintiff attempted to persuade the court that he did lose consciousness at the time of the alleged accident.
Dr Forbes detailed evidence clearly revealed that the plaintiff has had a history over the years, commencing in late 1979 of work related injuries for which on occasion he was certified unfit for work. The legacy of the work injury in late 1979 lasted until early 1981. At the end of 1981 the plaintiff presented with complaints of a painful neck and thoracic spine due to truck driving and he reported a similar problem in early 1982 as well as thoracic pain in 1983 and back, neck and shoulder pain in April 1984. June 1984 appears to be the first explicit complaint of lower back pain following lifting a gearbox, but that problem resolved relatively quickly. Later that year, there were a couple of visits related to neck pain and this persisted into early 1985. There was then a hiatus until March 1986 when the plaintiff suffered a fall down some stairs. In May 1986 he complained of lower back pain after using a jackhammer at work. Headaches, neck and lower back pain were reported in July 1986. Certainly from August 1986 through to March 1988 there were no particular complaints of the nature previously stated. As apparent from evidence in June 1989 the plaintiff did have a few days off work when he injured his lower back after falling or jumping from a wheel brace. It is significant in my view that there then followed a period of some five and a half years until January 1995 when the complainant did not appear to attend Dr Forbes with complaints of this nature or in order to receive treatment for such complaints. This would certainly suggest that any lower back pain, neck pain, thoracic pain and even headaches had dissipated to a very significant degree, such that the plaintiff was able to work and did not require medical treatment.
The majority of the medical practitioners who saw the plaintiff either proximate to the time of the alleged accident or at a later point in the course of review, having obtained a history were of the opinion that he had suffered a soft tissue or whiplash type injury to his cervical and lumbar spine. Professor Mastaglia, unlike a number of other medical practitioners, categorised it as a significant cervical and lumbosacral spinal injury, albeit that he did not see the plaintiff until August 2001. Whilst the medical evidence was to the effect that one would probably not sustain serious or severe injuries if the impact speed was in the vicinity of 11 kilometres per hour, a number of practitioners qualified this by saying that other factors may well have a bearing upon this. Mr Vaughan and Dr Forbes both believed that for example if one braced themselves fearing imminent impact or collision, that could be a relevant factor in relation to the effect that force being transferred to the driver may increase the prospect of injury. Professor Mastaglia did not take issue with this but his approach varied because his focus was on the severity of the symptoms rather than the severity of the impact. I accept Mr Vaughan's evidence that the resulting damage to the truck would not necessarily be a reliable guide as to the force imparted to a driver, because it was a rigid chassis construction and did not have crumple zones to absorb impact. As I understand this, force rather than being absorbed by the vehicle would in those circumstances be absorbed at least in part by the occupant or occupants of the vehicle. Dr Carroll and Professor Knuckey were more conservative in their evidence on this aspect of the matter although Dr Carroll considered the speed of a vehicle might have an impact on the injuries, he was suggesting this in the context of the length of time it would take for the injury to settle.
In late 1995 Dr Carroll didn't believe the plaintiff's capacity to drive trucks was adversely affected, but as the back pain and associated symptoms as well as migraine persisted in early 1996 despite the absence of physical signs explaining the complaints, he was of the view that it would be worthwhile for the plaintiff to seek alternative employment. Dr Suthers expressed a similar view in 2001 and although he could not see an obstacle to the plaintiff continuing to work as a truck driver, he qualified this by saying long hours were not advisable. The plaintiff's evidence as I understand it was that truck driving did involve lengthy working hours. Although Dr Bajada believed in February 1995 that the plaintiff could return to normal truck driving duties the following month, he was not privy to the course of the plaintiff's symptoms after that date.
Although there was some difference of opinion amongst the medical witnesses as to the plaintiff's capacity for work and the severity of his symptoms, none of them suggested that the plaintiff was exaggerating his symptoms or that he was not genuine in his complaints. In relation to the plaintiff's credit it should also be noted that he was quite forthright in advising a number of medical practitioners on review that he had been involved in a motor vehicle accident in March 2000, which had temporarily exacerbated his neck and back discomfort but that this had settled relatively quickly. Dr Patel did not consider that the plaintiff was fit to return to truck driving duties when he saw him in May 1995 which is why he certified him fit for clerical duties. However, by August he believed the plaintiff was able to drive for 50 per cent of his working day and in the end, late that year he believed the jarring and jolting forces associated with truck driving caused stress to the cervical and lumbo‑spine and so he advised alternative employment should be obtained if they did not resolve.
Nonetheless the plaintiff persisted in his attempt to return to truck driving and in mid‑1996 Dr Patel was cautiously optimistic that he could do so but subject to monitoring. That was the last occasion that Dr Patel saw the plaintiff and indeed it was around about the last time Dr Forbes saw him until mid‑1999. As a result of that consultation Dr Forbes again referred the plaintiff to Professor Knuckey so the inference cannot be drawn that that second attendance upon Professor Knuckey by the plaintiff was undertaken by the plaintiff because he had decided to take legal action against the defendant. Professor Knuckey in mid‑1999 was of the view that the plaintiff could not continue unrestricted truck driving due to his neck and back pain and although he did not have a significant injury and a comparatively low back permanent back disability that did not alter his opinion. By inference he was still of this opinion in early 2007, albeit that the plaintiff's abilities to carry out normal household duties did not seem to be particularly compromised.
It is clear from the evidence that after the initial two weeks the plaintiff had off work following 4 January he returned for a short time with some difficulty and then the incident of 28 January occurred, so that he was off work for a month or so. He returned to work with the defendant but not full‑time truck driving and in fact he was carrying out clerical work for a time and attempting to build up to a return to full‑time driving. That was not successful and he had a short period of time off work, being a matter of days in September, October and November of 1995. Once again he attempted to return to full‑time driving duties and was able to do so for it seems about six weeks before having a week off in late December, early January in 1996. When he returned to work with the defendant he was unsuccessful in obtaining a job as a permanent driver. In any event by that stage the medical evidence suggests that the jarring and jolting action of full‑time truck driving was not advisable, at least as far as Dr Patel was concerned. It was the plaintiff's recollection that his employment with the defendant ended in March or April 1995, after which time he sought alternative employment as outlined in his evidence.
With the exception of Dr Suthers the overall tenor of the medical evidence was that in the circumstances it was not unreasonable that the plaintiff find alternative employment from truck driving. Although there was some opinion that he could undertake truck driving it was accompanied by restrictions such as avoiding long hours and the proviso that his progress if he continued to do such work should be monitored. The plaintiff did attempt to return to truck driving but with little success and his physical problems were exacerbated when, following medical advice, he wore a back brace whilst working. He even attempted to undertake another driving job with a different employer in relation to driving forklifts and front end loaders, but once more he encountered the same difficulties which caused his symptoms to persist. The plaintiff pursued his efforts at rehabilitation and retraining by undertaking alternative employment and undertaking further study with a view to revocationalising. It cannot be said that he was not supported in this decision by the evidence of Dr Patel. The improvement in the plaintiff's condition relevant to his symptoms following the accident of January 1995 supports the advisability of his change in occupation.
In view of the foregoing findings in relation to negligence of the defendant as pleaded in par 3 of the statement of claim in my view it is not necessary to make findings in relation to the alternative matters pleaded in par 4 and 5 of the statement of claim.

Assessment of damages

General damages

At the conclusion of the trial an issue arose as to an additional matter, namely whether s 3G of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") applies to this action in the context of any assessment of general damages. Section 3G was inserted into the Act on 17 May 2006, which was many years after the plaintiff's accident in January 1995. Section 3G is a substantive not a procedural provision or amendment. The common law rule is that a statute ought not to be given retrospective operation where to do so would affect an existing right or obligation, unless the statute expressly or impliedly requires such a construction; Rodway v The Queen (1990) 169 CLR 515. A reading of s 3G makes it plain that it modifies the right of a person who is injured in a motor vehicle accident in relation to obtaining an award of damages under the Act and/or a statutory contract of insurance. The section operates as from the date of its commencement and therefore it has no application in this matter. I do not accept the argument advanced on behalf of the plaintiff that s 3C of the Act, which applies to restrict an award of general damages, cannot apply in this particular case. That section operates to limit the power of the court in making an award of damages. Section 3E of the Act makes it plain that s 3A – s 3D do not apply to causes of action arising before 1 July 1993, but apply to causes of action arising on or after that date. Counsel for the plaintiff submitted that if the court were to find s 3C of the Act applies in this case then the court should disregard its operation as it was not raised by the defendant prior to closing and in that sense the plaintiff would be taken by surprise. I reject this submission as it is unnecessary in my view to plead s 3C, given that it is contained in the Act and directly goes to the power of the court to award damages. It is a matter which one would have thought the legal advisors to the plaintiff would in any event have considered given the nature of the plaintiff's claim.
Taking into account the whole of the medical evidence there is a consensus of opinion that the plaintiff sustained soft tissue injuries as a result of the accident. The medical evidence has been canvassed in some detail in these reasons and it is apparent that Dr Patel in the end was of the view that the plaintiff's injuries, though not severe or particularly restricting, were of such a nature that it was prudent for him to seek alternative employment. The plaintiff complained of pain and restriction of movement in his neck and lower back to a number of medical practitioners, none of whom doubted the veracity of the complaints, albeit that his movements were not markedly restricted on examination. The plaintiff was not shaken in his assertion that he still suffers pain in his neck and back for which he takes medication on occasion.
He suffers some restrictions in relation to the length of time he is able to drive a motor vehicle and he is no longer able to engage in some sporting activities which he previously enjoyed. Generally, however, he is able to function without particular difficulty in his domestic environment and it would not seem that his social life is restricted. According to the plaintiff his accident and its sequelae placed both emotional and financial stress on his relationship with his former wife, but there was very little evidence to this effect and further it is simply not possible to make a finding that the relationship breakdown was caused by the plaintiff's involvement in the accident. Overall the plaintiff's lifestyle and daily functioning have not been greatly restricted by the injuries sustained in the accident and counsel for the plaintiff does not, as I understand it, suggest to the contrary.
When the plaintiff's injuries and associated symptoms following the motor vehicle accident are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that his injuries and symptoms as well as their progression, treatment and current status, in addition to the effect that they have had on the plaintiff's enjoyment of life puts this situation at 9 per cent of a most extreme case. This results in a sum of $26,280. Applying the appropriate formula pursuant to s 3C(6) of the Act the amount of damages to be awarded for non‑pecuniary loss in these circumstances is $11,780.

Past loss of earnings

In relation to this aspect of claim assistance has been gained from the table reproduced below which was filed on behalf of the plaintiff:

Year (FY)
Taxable Income Net Income Loss (being difference between pre‑accident earning capacity to earn in the sum of $31,624 net per annum and income earned)

1995 28,613 22,820 31,624 – 22,820 = 8,804

1996 27,937 22,923 31,624 – 22,923 = 8,701

1997 31,200 24,040 31,624 – 24,040 = 7,584

1998 12,050 11,238 31,624 – 11,238 = 20,386

1999 13,413 12,422 31,624 – 12,422 = 19,202

2000 15,869 13,399 31,624 – 13,699 = 17,925

2001 8,087 7,882 31,624 – 7,882 = 23,742

2002 32,910 26,163 31,624 – 26,163 = 5,461

2003 32,166 25,666 31,624 – 25,666 = 5,958

2004 47,734 36,526 31,624 – 36,526 = no arithmetic loss

2005 48,764 37,231 31,624 – 37,231 = no arithmetic loss

TOTAL LOSS $117,763

In order to determine the plaintiff's pre‑accident yearly earnings it seems reasonable to me, as counsel for the plaintiff has done, to turn to Exhibit 4, the plaintiff's book of economic documents and at p 154 consider the contents of his return for the financial year 1994, which was the year preceding the accident when he was working for the defendant. His taxable income in that year was $41,659. When one deducts from that the amount of tax paid as well as the Medicare levy and adds the rebates that equals a net income of $31,624. In the following financial year as evident from p 153 of Exhibit 4, being the year of the accident, the plaintiff's taxable income had reduced to $28,613 and his net income, applying the above formula was $22,820. Counsel for the plaintiff submits that as the comparison is done on a financial year basis and because the plaintiff sustained an injury in the 1995 financial year, it is a reasonable assumption, in the absence of evidence of any intervening event interrupting the plaintiff's work, that the comparative loss of wages in the financial year of 1995, compared to the preceding year of 1994, was solely due to the injury sustained by the plaintiff in January 1995. Again this seems reasonable to me in the circumstances, as does the submission that as a result there is no need to halve the actual loss simply because the accident occurred mid‑way through the 1995 financial year. As the table demonstrates the plaintiff's loss of earnings for each financial year between 1995 and 2003, when his yearly earnings in his new occupation eclipsed his past earnings as a truck driver, is simply the difference between the pre‑accident earning capacity of $31,624 net per annum and the net income earned in each of the financial years between 1995 and 2003.
It is apparent from the table that there was no loss in the financial years 2004 or 2005 and continuing. When one then adds the differences in net incomes for the period of financial years in question the total loss is, as the table indicates, $117,763 net. From this amount social security benefits as calculated by Centrelink will have to be repaid. Exhibit 23 contains copies of certificates issued in this regard by Dr Forbes between 4 December 2000 and 20 January 2003. It should be noted as counsel for the plaintiff pointed out that in the financial year 1998 there was no notice of assessment but the figures for that period are based on an estimate accompanying the income tax return in Exhibit 4 at p 91.
It was submitted on behalf of the plaintiff that his claim for past loss of earnings was reduced by his taxable income for the financial years 1995 to 2003 because his taxable income in that period also included what he was receiving by way of workers' compensation payments. Therefore this amount should be added to this aspect of his claim taking into account the Fox v Wood component. The amount of workers' compensation received was $17,751.08. In order to determine the average effect of rate of taxation per annum during this period I accept the submission on behalf of the plaintiff that one takes the total net wages of $166,553 divided by $202,245, being the total gross wages over the period in question, which results in a figure of 0.176 or 17.6 per cent. When one applies this formula to the sum by way of repayment to the workers' compensation insurer it results in a sum of $18,063.

Interest on past loss of earning capacity

This covers a period of 12.92 years between 4 January 1995 and 1 February 2008. Counsel for the plaintiff submitted that most of the period of loss relevant to this aspect of the matter goes back over many years and suggests that the average interest rate would then be more towards 6 per cent than 3 per cent. It is further argued that after the financial year of 2003 the loss was not recurring, so 6 per cent after that date should continue to be applied. I do not accept the submission that given this an average rate of 4.5 per cent should be utilised over the whole period. It seems to me that it is more appropriate to apply the usual interest rate of 3 per cent over the period. If one takes the past loss of earning capacity of $117,763 over 12.92 years that results in a sum of $45,645.

Past loss of superannuation contributions and interest

The calculation in relation to this aspect of the claim is based on gross rather than net wages. The most convenient way to deal with this part of the assessment is to gross up the net loss of $117,763 by estimating an average rate of taxation between the financial years 1995 to 2003. As previously noted the proportional average or effective rate of taxation per annum would be 0.176 or 17.6 per cent. If one applies this formula the grossed up loss is .176 x $117,763 = $138,489. Then applying a 9 per cent contribution rate ie, 9 per cent x $138,489 = $12,464. From this amount there must be a deduction of 30 per cent to reflect the principle in Jongen v CSR Ltd (1992) A Tort Rep 81-192 by making an allowance for tax and fund administration expenses which results in a sum of $8,725. Once again, allowing interest at 3 per cent per annum on this amount over 12.92 years results in a sum of $3,382. The total past loss of superannuation contributions with interest is therefore $8,725 + $3,382 = $12,107.

Future loss of earning capacity and superannuation

At time of trial the plaintiff was 51 years of age. In relation to this category of damages I accept that the appropriate approach for any future loss of earning capacity must be on a global basis considering the plaintiff's current working circumstances and his earning capacity. There is no evidence to suggest other than that the plaintiff would work till age 65 years. In effect the claim is based on a loss of parameters of employment and on the facts of this matter there is no argument that an award to reflect this loss should be relatively modest. It is not a situation where the plaintiff is in some form of sympathetic employment, but rather he is competing successfully in the open workforce, albeit doing a less physically strenuous job than in his pre‑accident employment. The plaintiff is also in the fortuitous situation of earning more in his post‑accident current employment than in his pre‑accident job. For this reason it is most unlikely that the plaintiff, even if he were able to do so, would contemplate returning to his previous lower paid employment. Nonetheless it is appropriate that some allowance be made for what is objectively a loss of parameters of future employment; see Caramia v Shuttleworth [2002] WADC 140; James v Alinta Gas Networks [2006] WADC 6. On an objective assessment of the evidence it is clear that the plaintiff cannot now carry out all the duties involved in his pre‑accident occupation and so the injuries sustained by the plaintiff may be productive of financial loss. I consider that a global award of $25,000 appropriately reflects this aspect of the claim. Given that the award of damages in this regard is relatively conservative I accept the submission that it would not be appropriate to apply a discount for contingencies in this regard.

Past gratuitous services with interest and future gratuitous services

The evidence in relation to this aspect of the claim was scant and somewhat imprecise. It is not clear how much the plaintiff expended following his accident, relevant to payment for gratuitous services, nor did he go into any detail in evidence as to how many hours per week such services were provided to him or carried out on his behalf. Certainly at time of trial the evidence was that the plaintiff lived alone and carried out his own cleaning, washing and ironing, albeit at a slower rate than pre‑accident. There was nothing to suggest that the plaintiff does not and will not continue to cook or shop for himself in the future or did not do so in the past following his separation and divorce. He is able to carry out 40 minutes gardening per week and said he mows his lawn once per fortnight. He is able to undertake home maintenance, albeit again with a little difficulty, compared to his ability to do so prior to his accident. Professor Knuckey was of the opinion that the plaintiff can carry out normal household duties and there was no evidence from the plaintiff or any other medical practitioners to the contrary. Doing the best I can in relation to the lack of detail and precise evidence in my view a conservative global award in the order of $5,000 appropriately reflects this category of the claim for damages.

Allowance for future treatment costs

Again there was very little evidence in relation to this aspect of the claim. I did not understand any of the medical practitioners to indicate in their evidence that there were ongoing treatment needs in relation to the plaintiff's condition and symptoms. It may be from time to time it will be necessary for the plaintiff to consult his general practitioner relevant to this, but I would have thought on the evidence that such consultations would be infrequent. No need for future surgery has been indicated and there would not appear to be any requirement for ongoing treatment in the form of physiotherapy, exercise programmes or prescribed medication. The plaintiff's evidence was that he still suffers episodes of pain on occasion and treats this by taking Nurofen, for which he pays $16 for 90 tablets. On a bad day he would take a maximum of six tablets. In the light of the evidence as to this category of damages a modest award in the sum of $1,500 is appropriate.

Past special damages

I accept that treatment expenses in the sum of $19,923.30 paid by the workers' compensation insurer will have to be repaid by the plaintiff and so this claim is allowed. The only additional matters are the sum of $560.90 which is repayable to Medicare and gap payments of $325.90 which the plaintiff has paid and for which he should be reimbursed.

Summary of award

1.General damages for pain and suffering                  $11,780.00
2.Past loss of earnings  $117,763.00
3.Repayment to workers' compensation insurer
including Fox v Wood component   $18,063.00

4.Interest on past loss of earnings $45,645.00
5.Past loss of superannuation contributions
and interest $12,107.00

6.Global future loss of earning capacity
and superannuation contributions $25,000.00

7.Global past gratuitous services with interest
and future gratuitous services $5,000.00

8.Global future treatment costs   $1,500.00
9.Repayment of treatment expenses to insurer          $19,923.30
10.Repayment to Medicare     $560.00
11.Reimbursement of Medicare gap payments
to plaintiff       $325.90
Total award  $257,668.10

Year (FY)	Taxable Income	Net Income	Loss (being difference between pre‑accident earning capacity to earn in the sum of $31,624 net per annum and income earned)
1995	28,613	22,820	31,624 – 22,820 = 8,804
1996	27,937	22,923	31,624 – 22,923 = 8,701
1997	31,200	24,040	31,624 – 24,040 = 7,584
1998	12,050	11,238	31,624 – 11,238 = 20,386
1999	13,413	12,422	31,624 – 12,422 = 19,202
2000	15,869	13,399	31,624 – 13,699 = 17,925
2001	8,087	7,882	31,624 – 7,882 = 23,742
2002	32,910	26,163	31,624 – 26,163 = 5,461
2003	32,166	25,666	31,624 – 25,666 = 5,958
2004	47,734	36,526	31,624 – 36,526 = no arithmetic loss
2005	48,764	37,231	31,624 – 37,231 = no arithmetic loss
TOTAL	LOSS	$117,763