Steven George Villanti v Coles Group Supply Chain Pty Limited; Steven George Villanti v All Staff Australia NSW Pty Ltd t/as Allstaff Australia

[2017] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation:

Steven George Villanti v Coles Group Supply Chain Pty Limited; Steven George Villanti v All Staff Australia NSW Pty Ltd t/as Allstaff Australia [2017] NSWSC 1231

Hearing dates:

20 - 23, 29 June 2016

Date of orders:

29 September 2017

Decision date:

29 September 2017

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The parties are to provide short minutes of order within 14 days.

 (2) Costs are reserved.

Catchwords:

NEGLIGENCE – breach of duty – workplace accident – whether employer is vicariously liable for driver – contributory negligence of driver – whether motor vehicle owner is negligent under Civil Liability Act 2001 (NSW), ss 5, 5B, 5C and 5D – whether motor vehicle owner is liable as a statutory agent under s 112 of the Motor Accidents Compensation Act 1999 (NSW) – application of ss 3A and 3B of the Motor Accidents Compensation Act 1999 (NSW) – whether s 112 creates an exception to the general rule against dual vicarious liability – damages – Motor Accidents Compensation Act 1999 – whether first injury contributed to second injury

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5, 5B, 5C, 5D
Corporations Act 2001 (Cth), 917C
Employees Liability Act 1991 (NSW), s 3
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Motor Accidents Compensation Act 1999 (NSW) ss 3, 3A, 3B, 112, 125, 126, 131, 141B
Motor Accidents Compensation Amendment Act 2006 (NSW)
Workers Compensation Act 1987 (NSW), ss 150, 151
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4

Cases Cited:

Bon MacArthur Transport Pty Limited v Caruana [2013] NSWCA 101
Brown v Harding [2008] NSWCA 51
Day v Ocean Beach Hotel Shellharbour Pty Ltd and Another [2013] NSWCA 250
Evans v Lindsay [2006] NSWCA 354
Faulkner v Keffalinas (1970) 45 ALJR 80
Fox v Wood (1981) 148 CLR 438; [1981] HCA 31
Froom v Butcher [1976] QB 286
Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396
Gunning v Fellows (1997) 25 MVR 97
Hornsby Shire Council v Oberlechner [2017] NSWCA 205
Laugher v Pointer (1826) 5 B & C547; 108 ER 204
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Manley v Alexander [2005] HCA 79
Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
Pennington v Norris (1956) 96 CLR 10
Scott v Davis (2000) 204 CLR 333
Soblusky v Egan (1960) 103 CLR 215
State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Sungravure Pty Limited v Meani (1964) 110 CLR 24

Texts Cited:

Furzer Crestani Forensic Chartered Accountants, ‘Assessment Handbook: October 2016’

Category:

Principal judgment

Parties:

2012/104536
Steven George Villanti (Plaintiff)
Coles Group Chain Pty Limited (Defendant)

  2015/39590
Steven George Villanti (Plaintiff)
All Staff Australia NSW Pty Ltd t/as Allstaff Australia (Defendant)

Representation:

Counsel:
2012/104536
R Sheldon with E Walsh (Plaintiff)
G Parker (Defendant)

 

2015/39590
R Sheldon with E Welsh (Plaintiff)
P Perry (Defendant)

 

Solicitors:
No 2012/104536
Brydens Compensation Lawyers (Plaintiff)
McCulloch and Buggy (Defendant)

  2015/39590
Brydens Compensation Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2012/104536, 2015/39590

Publication restriction:

Nil

Table of Contents

Witnesses

Background Facts

Employment at Smeaton Grange

The layout of the warehouse and description of a pallet mover machine

The accident – 24 April 2009

Liability of Allstaff

Conclusion - liability as against Allstaff

Contributory negligence

Liability of Coles

The Civil Liability Act

Civil Liability Act – Conclusion

Cross claims

Presumption of agency – is Coles liable for the negligence of Mr Douglas under statutory agency?

The Motor Accidents Compensation Act

The Workplace Injury Management and Workers Compensation Act

The Employees Liability Act

The Workers Compensation Act

Coles’ submissions

The plaintiff’s submissions

Allstaff’s submissions

Soblusky

Scott

Caruana

Day

Consideration

Damages

The plaintiff’s injuries and medical reports

Second injury

Subsequent back injury

Surveillance

Psychiatric evidence

Medico legal orthopaedic evidence

The joint report

Conclave evidence

The back injury

Whether the first injury contributed to the second injury

Heads of damages

Non economic loss

Out of pocket expenses

Past economic loss

Fox v Wood (1981) 148 CLR 438; [1981] HCA 31 (“Fox v Wood”)

Future economic loss

Past loss of superannuation

Future loss of superannuation

Past attendant care

Future attendant care

Costs

Schedule of Damages

Judgment

1. HER HONOUR: The plaintiff seeks damages for a crushing injury to his lower right leg sustained when a pallet mover collided with him in a warehouse owned by the Coles Group Supply Chain Pty Limited (Coles) on 24 April 2009.

2. There are two proceedings before the Court. In both proceedings the plaintiff is Steven George Villanti. In proceedings No 2012/104536 the defendant is Coles. In proceedings No 2015/39590 the defendant is Allstaff Australia NSW Pty Ltd t/as Allstaff Australia (“Allstaff”). On 19 May 2017, an order was made that the proceedings be heard together and that evidence in one proceeding is evidence in the other. On 22 June 2017, both Coles and Allstaff filed cross claims against each other.

3. The plaintiff also seeks damages for the same injury sustained on the same date from Allstaff. The plaintiff and the driver of the pallet mover that collided with the plaintiff, Mark Douglas, were both employed by Allstaff. Allstaff was responsible for the training and instruction of their employees placed at the Coles warehouse in the safe operation of pallet mover machines. The plaintiff and Mark Douglas were placed by Allstaff at the warehouse pursuant to a labour hire contract or agreement for service. However, Coles was the owner of the pallet mover.

4. At the commencement of the trial, counsel for Allstaff indicated that the pleadings were incorrect in that they referred to Mr Douglas driving a forklift. It was agreed by the parties that the vehicle driven by Mr Douglas was in fact a pallet mover. (T17.1-19).

Witnesses

5. The plaintiff and his wife, Nichola Corin, provided two evidentiary statements dated 8 August 2016 and 10 August 2016 respectively. (Ex A). Mark Douglas provided three evidentiary statements dated 23 July 2016, 20 October 2016 (Ex D2/4) and 22 June 2017. (Ex D2/5). The plaintiff and Mr Douglas gave evidence and were cross examined. The plaintiff’s wife gave short evidence. Drs Stephenson, Powell and Giblin, the orthopaedic surgeons, gave conclave evidence as they had not seen the video evidence when Dr Stephenson and Giblin wrote their joint report dated 18 April 2017. (Ex A). Dr Powell did not participate in the joint report.

6. It is convenient that I now record my findings concerning the plaintiff’s credibility. I observed the plaintiff carefully when he gave evidence and was cross examined. While the plaintiff agreed that he did not always provide accurate evidence to the medico legal experts and that he gave some inconsistent evidence as to his past accident and work history, it does not go to any significant issues raised in these proceedings. I have come to the conclusion that he gave truthful evidence in relation to the accident that occurred on 24 April 2009. During their conclave evidence, the orthopaedic surgeons viewed surveillance evidence of the plaintiff mowing his lawn and later carrying a gas bottle and other cooking equipment. (Ex D1/8). This surveillance evidence did not alter their medical opinions. Overall, I accept the plaintiff’s evidence where I say otherwise.

Background Facts

7. The plaintiff was born in 1977. He is currently 39 years old. In 1994, he completed year 10 at Patrician Brothers Liverpool and was awarded his school certificate. The plaintiff is presently unemployed and his wife is his carer.

8. After leaving school, the plaintiff undertook a 12 month course as a chef at a hospitality college in Sydney. From 1995 to 1997, the plaintiff was employed with P & O Catering as a chef.

9. From January 1997 to January 1999, the plaintiff was employed by the Holsworthy Army Barracks and East Hills Army Barracks. Following this, the plaintiff was employed as a chef at a number of restaurants, including Sizzler, McDonalds and Camden Valley Golf Club.

10. In 2008, during the course of his employment at Camden Valley Golf Club, the plaintiff almost severed his right index finger while using a knife. He underwent microsurgery at Westmead hospital to reattach his right index finger. The surgery was a success and the plaintiff made a full recovery.

11. In 2003, after obtaining a light rigid truck driver’s licence, the plaintiff worked as a truck driver for approximately five years with Alsco Linen and Benchmark Joinery. In 2007, he obtained a forklift driver’s licence and moved into warehousing work. The plaintiff registered for employment with Allstaff and was placed at the Bonds factory at Minto where he worked for just over one year.

Employment at Smeaton Grange

12. While the plaintiff was at the Bonds factory he became aware that well paid work was available at the Coles warehouse at Smeaton Grange (“the warehouse”). The plaintiff successfully applied for that work. In June 2008, he commenced working at the warehouse. Coles was the occupier and manager of the warehouse where the accident occurred. The plaintiff was employed through Allstaff. Mr Douglas confirmed that he reported to an Allstaff employee named Karen Palazzo who was located at the warehouse. She would facilitate the shifts for Coles and if an employee needed to call in sick they would report to her. (T265.27- 49).

13. The plaintiff’s duties at the warehouse were to pick and pack groceries to fill orders placed by various supermarkets. On commencement of his work at the warehouse, the plaintiff received training in the use and operation of a pallet moving machine called a DPC machine (“the pallet mover”). That training was provided by a supervisor from Coles. He was also trained in the rules that applied to the use of the pallet mover at the warehouse.

14. Mr Douglas also discussed his induction in his supplementary statement, which was similar to that given to the plaintiff. Mr Douglas stated that on his first day of employment at the warehouse he was introduced to a Coles supervisor whose name he does not now recall. (Ex D2/5, [5]).

15. Mr Douglas recalled that the supervisor told the Allstaff employees that their duties would be that of a picker and packer. The supervisor teamed Mr Douglas up with a female Coles employee who would be his competence trainer. The trainer took Mr Douglas to a vehicle and told him it was a pallet mover. (Ex D2/5, [6]-[7]).

16. Once Mr Douglas had learned the operation of the pallet mover, he was taken through a number of aisles at the warehouse. He drove the pallet mover as the trainer walked beside him, explaining tasks and other matters at the same time. (Ex D2/5, [13]).

17. Mr Douglas recalled that Coles had a performance based system whereby bonuses were paid to pallet drivers if they completed their orders faster than the prescribed time limit. (Ex D2/4, [20]). Counsel for Allstaff submitted that such a system amounted to an instruction to work faster, take unnecessary risks and encourage a driver to keep driving where a picker was wrapping a stationary bundle in an aisle. However, Mr Douglas does not say that this incentive made him work faster and take unnecessary risks. I do not draw this inference.

The layout of the warehouse and description of a pallet mover machine

18. The layout of the warehouse was described by the plaintiff and Mr Douglas in similar terms. The warehouse is huge with approximately 50 aisles. The aisles are around 80 metres long and divided at the halfway point by an aisle running at a right angle to all of the other aisles. This aisle is sometimes referred to as the cross aisle or breezeway.

19. There are three types of vehicles in use at the warehouse. Firstly, forklifts that are controlled by Coles employees only. Secondly, pallet movers that are controlled by Allstaff employees but owned by Coles. They are unregistered and not insured for the purpose of the Motor Accidents Compensation Act 1999 (NSW). Finally, truck loaders which are small and more manoeuvrable than the pallet movers.

20. The pallet mover has a platform at the front where the operator stands. The controls are in front of the operator. Behind the operator is a guard of approximately two metres in height. Behind the guard are two sets of tines extending back from the driver. Each tine is 28 centimetres with a gap in the middle. These tines are long enough to carry two chep pallets, one behind the other. When the pallet mover is moving, the operator stands at the front, facing forward, holding the steering bar which includes the throttle. Beneath the operator’s foot is a button. The pallet mover does not move unless the button is depressed.

21. There is racking on either side of the aisles with pallets loaded with boxes containing Coles’ products. The pallets are approximately one metre by one metre. (T44.31-32). The empty pallets are placed on the concrete floor. They are placed within the racking so that one edge of the pallet is horizontal and in line with the racking boundary on the aisle. Empty pallets at floor level are removed by the forklift operators and replaced with loaded pallets. Traffic in each aisle is one way and alternates from aisle to aisle. The rule is that the drivers were to keep to the left unless they were overtaking a stationary machine, similar to the everyday rules of an ordinary road.

22. At any one time, there are many pallet movers travelling up and down the aisles. The operators stop from time to time to pick up pallets from the floor level pallets in the pick bays on either side of the aisle.

23. The pallet movers travel at speeds of 10 to 15 kilometres per hour. They are battery powered and move very quietly. At each cross aisle pallet mover drivers are instructed to sound their horn. Once an order is complete, the operator moves the pallet mover to the left hand side of the aisle and brings it to a halt. The operator lowers the tines so that the completed pallets remain on the floor. The operator then gets down from the controls and wraps the completed order with plastic shrink wrap. The shrink wrap is wrapped around the load a number of times until it is securely covered. The roll of shrink wrap is carried on the platform of the pallet mover behind the driver. Also behind the driver on the pallet mover is a tray from which the driver has a pamphlet of stickers. The stickers comprise of an order and are removed and placed onto the boxes of product as they are picked up. The final stickers of every order contain the words “end of order”.

24. The plaintiff estimated that the aisles were three metres wide. Mr Douglas in his supplementary statement estimated that the aisles to be four to five metres wide. (Ex D2/5, [15]). In cross examination, Mr Douglas agreed that the aisles were roughly three metres wide. (T227.21-23). Therefore, I make a finding that the aisles were roughly three metres wide.

The accident – 24 April 2009

25. The plaintiff’s version of events is as follows. On 24 April 2009 at approximately 10:30 am, the plaintiff was working in the warehouse in aisle CK. He had completed picking an order of stock and had two fully laden pallets. One pallet had already been wrapped in cling film and was sitting on the tines of the pallet mover. The other pallet had been fully packed and was sitting on the floor of the warehouse in the aisle where the plaintiff had packed it with boxes of soft drink. The pallet had been placed by the plaintiff in the aisle 50 centimetres away from the pallet racking on the right hand side, allowing enough space for him to be able to walk around the pallet while another pallet mover proceeded past it. He was standing towards the centre of the aisle. (T52.23-25).

26. The accident occurred while the plaintiff was in the process of wrapping the second pallet in plastic wrap. The plaintiff’s evidence is that the plastic wrap comes in long rolls and, in order to fully carry out the task of wrapping, one needs to walk backwards around the pallet. As the plaintiff was wrapping the pallet on the side closest to the centre of the aisle, he heard a big bang and felt something strike him on his right hip. Almost simultaneously his right leg was caught between the pallet he was wrapping and a pallet on the forklift speeding past him. The plaintiff was squashed between the loaded pallets, dragged along for a distance of a few metres and then flung into the pallet racking. He remembers everything that happened up until he landed in the pallet racking and then he lost consciousness.

27. A photo of the pallets after the accident can be seen in Ex D1/3 (reproduced below). One pallet mover is not wholly visible as it had been moved prior to the photo being taken. The plaintiff also drew a rough sketch diagram of the point of impact between him and the loaded pallets. (Ex D2/6).

28. This diagram depicts both the rear and front of the pallet that the plaintiff was wrapping. The plaintiff indicated that where the word ‘front’ is, is where the red pallet and boxes closest to the photographer are in Ex D1/3. The pallet movers involved in the accident are pallet mover CN3582 and pallet mover CN3597. Exhibit D1/3 also shows the point of collision between the laden red and blue pallets. At the time of the accident, the plaintiff was wrapping the laden red pallet with cling wrap to secure the load. During cross examination, Mr Douglas stated that the corner of the blue pallet was struck. (Ex D1/7, photograph 3). The plaintiff marked on the photograph Ex D1/3 the pallet he was wrapping with an almost heart shaped outline in black, incorrectly described as white in the transcript. (T51.16-17). The photograph shows that the fully laden pallets dislodged in the accident were of a substantial height, length and size.

29. Mr Douglas’ version of events is as follows. His pallet mover came to a very sudden stop. Between the jerk and his pallet mover coming to a complete stop, it travelled no more than a metre. He heard the crashing sound of pallets and boxes falling. Mr Douglas jumped down from the platform and saw the plaintiff standing beside his rear pallet at the back of the tines of Mr Douglas’ pallet mover. The rear pallet had been dislodged and there was a mess. Soft drink bottles had broken out of their boxes. (Ex D2/5, [37]-[38]).

30. Mr Douglas gave the following answers in cross examination (T255.36-50):

“Q. You agree with me, do you not, that you simply misjudged the clearance between the racking on the right, the pallets on the exit bay and Mr Villanti and his load?

A. Yes

Q. And you agree that if the passageway beside Mr Villanti was obstructed he could easily have stopped and waited for Mr Villanti to finish what he was doing before he proceeded, correct?

A. Yes.

Q. There was nothing obstructing your view in anyway?

A. No.

Q. You just made an error of judgment on the day, isn’t that the case?

Yes.”

31. The plaintiff gave evidence that prior to the accident, he did not hear a horn sound or any other form of warning that Mr Douglas was driving down the aisle. Nor did he make eye contact with Mr Douglas. He first saw Mr Douglas on his pallet mover when Mr Douglas’ pallet mover crushed him in between the pallet and his (the plaintiff’s) pallet mover. (T56.50; T57.1-32).

32. Mr Douglas’ evidence is that he said to the plaintiff “are you okay, mate?” The plaintiff replied, “No I’m not.” Mr Douglas responded, “I’ll get someone.” Mr Douglas ran to the cross-aisle where he knew there was a phone. (Ex D2/5, [39]-[42]). He notified the cleaner and the cleaner contacted the first aid attendants to attend the scene. In cross examination, Mr Douglas denied that he ran away from the accident. (T224.36-37).

33. The next memory the plaintiff has is waking up in the pallet racking with boxes on top of him. Someone was cradling his head in their lap and the safety officer, Greg Alvisio, was there. There were also a number of other people around. The plaintiff was suffering excruciating pain in his right leg.

31. Police, police rescue and ambulance personnel arrived and the boxes were taken off the plaintiff’s legs and body. The steel capped boot on his right foot was cut off by the emergency workers. The plaintiff was taken by ambulance to Campbelltown hospital and then transferred to Liverpool hospital where he underwent emergency surgery performed by Dr Al Muderis, an orthopaedic surgeon.

32. On 27 April 2009 (three days after the accident), in a meeting between Radomire Manojlovic, Glenn Wilford and Karen Palazzol of Coles, and Mr Douglas, Mr Douglas stated that he did not see a pallet that was sticking out of the racking and claims that he clipped it. Mr Douglas also stated that he had not slowed down to the extent that he should have. The notes from that meeting of 27 April 2009 record (Ex D2/1, p 203):

“Mark’s comments are as follow[s]:

Was in CK aisle saw Steve, I slowed [down] and beeped looked Steve in the eyes and proceeded Steve was stationary. I didn’t see a pallet that was sticking out and clipped that pallet Steve was situated between the 2 pallets

Glenn commented it seems that Mark was moving [too] quickly and that speed seems to be the contributing factor.

Mark has admitted that he has not slowed down to the extent that he should have and the rabbit stopper was not working due to the heavy load.”

36. Also three days after the accident a report called the Coles Incident Report and Investigation Form dated 27 April 2009 (“the incident report”) was prepared by Sharon Buik, team manager of Coles. It describes the accident as follows (Ex D2/1, p 13):

“Steve Villanti was wrapping his pallet in CK aisle Mark Douglas was driving down CK aisle towards despatch side of warehouse. Mark sounded horn but did not slow down and Steve continued to wrap. The next part of the incident is not clear as yet and further investigation will be carried out. It looks like Mark was going around Steve and has clipped a pallet forcing his machine to jolt and pushing his pallet forward into Steve where some merchandise has fallen on Steve and jammed his lower right leg between pallet and merchandise. The racking upright post in ck841a was damaged as well as some merchandise.”

37. Mr Douglas gave evidence that he had a clear view of the plaintiff from about 60 metres. (T237.46-48). In respect as to whether the plaintiff and Mr Douglas made eye contact, Mr Douglas gave the following evidence (T261.15-28):

“Q. So what I want to suggest to you, Mr Douglas, is that when you first saw Mr Villanti, you were too far away to determine whether, as you put it, your eyes had met.

A. Yes. When our eyes met I was nearest to him on the right-hand side, and he was facing the – me on the pallet. That’s – there’s a bit of a – a gap in the statement. Sorry, there’s a bit of a time gap.

Q. So –

A. Between the time of my getting to seeing him, turning the aisle down, and then the cross-section, for me stopping and tooting my horn, so I saw him get off his pallet-mover when I traversed down the aisle. And then between me getting to him from the mid-section of the aisle to - to there, that where the discrepancy is in the statement. When I was closest to him, he was looking at me.”

38. I do not accept Mr Douglas’ account that he and the plaintiff made eye contact because, if this was the case, Mr Douglas would, more likely than not, have brought his pallet mover to a complete stop. More importantly, had the plaintiff made eye contact with Mr Douglas, he would have seen Mr Douglas’ pallet mover travelling towards him so would not have continued to wrap his pallet in the path of the oncoming pallet mover. It is my view that Mr Douglas was going at a speed of 15km/h when it was not safe to do so.

39. Regarding his speed, Mr Douglas gave the following answers in cross examination (T238.11-15):

“Q. What speed were you travelling at?

A. Around 10.

Q. May have been 15?

A. May have.”

40. Mr Douglas agreed that he had made an error of judgment and that it would have been simple to stop and wait for the plaintiff to finish wrapping the pallet before continuing to drive around the (plaintiff’s) pallet. (T255.36-39).

41. However, Mr Douglas also reiterated the further explanation that he gave to Coles as to how the accident occurred. (T263.20-30). His explanation was that his load struck a pallet that was protruding from the racking causing his pallet mover to “ricochet” across the aisle and strike the plaintiff. He says that the load on his pallet moved to the right and the pallet moved to its left. Mr Douglas stated (Ex D2/4, Statement, 23 July 2016, [13] to [16]):

“13. As he was wrapping his pallet, he was off his loader and standing behind his last pallet as I went past him.

14. As I got past him, a pallet on my right which was on the floor has hit my pallets which I have described are behind me.

15. My stock has moved off the tines to my right and the pallets have moved to the left and the pallets have struck against Steve. As I was going past he had come around his pallet and had positioned himself between my pallets and his pallets.

16. My pallet struck Steve and pushed him into his pallet. I got off and could see my order had gone everywhere it was a big mess and I had gone round the back and saw Steve was in pain. It did not look like anything severe had happened to Steven. He was in pain but could not walk, there was no blood, I thought that a box had hit his foot. When I got to him he was on his feet.”

42. I do not accept Mr Douglas’s evidence and prefer the plaintiff’s evidence that he (the plaintiff) first saw Mr Douglas when his right leg was crushed in between the pallet and the pallet mover. Further, I make a finding that the plaintiff was not standing after the collision but was squashed between the loaded pallets, dragged along for a distance of a few metres and then flung into the pallet racking.

43. In relation to [16] of his statement extracted above, Mr Douglas gave the following evidence in cross examination (T253.16-19; T253.25-27; T255.30-32):

“Q. I want to suggest to you that contrary to your evidence, you didn’t hit a protruding pallet at all, that the first thing you hit was Mr Villanti and his load. What do you say to that?

A. No. Cause if that was the case, the accident scene would look differently.

…

A. So [the] way the load is – is pictured to have shifted into [the] racking. I couldn’t have struck Mr Villanti’s, cause then it would’ve shifted it towards him and not towards the racking.

…

Q. And you saying in 16 that your pallet struck Steve and pushed him off, pushed him into his pallet, is that what you’re saying?

A. That’s what I’m saying.”

44. Coles had a traffic management plan in place at the warehouse (“the traffic management plan”). (D1/5). The management plan provided a number of rules for staff to follow regarding mobile plant equipment. It was signed by Mr Douglas, the site manager Lea Jones and Rod Croft, the OHS Chairperson. The plaintiff also signed a similar one.

45. The traffic management plan included the following relevant rules:

“Prior to commencing any work with mobile plant equipment please ensure the following:

1. All staff who are required to use mobile plant must ensure that they have completed the appropriate training and be assessed as competent before using mobile plant. Unlicensed team members must not operate equipment that requires a National Certificate of Competency.

…

8. All Team Members shall familiarise themselves with the site floor plans.

Operating Plant within the DC and External Yard Areas

1. Operators must not alight from any mobile plant until it is stationary.

2. Mobile plant operators must travel at a safe speed that ensures they maintain SAFE CONTROL of the equipment at all times.

3. All mobile plant operators must ensure their load is safe and secure at all times.

…

13. Operators of pallet riders and picking machines can only travel down the aisles in one direction, as designated by the signage at the end of the aisles. Exceptions are: Maintenance staff and cleaners at those times when it [is] necessary to access spills or faulty equipment.

14. Mobile Plant Operators shall come to a STOP, look both ways and sound their horn:

•  When exiting aisles.

15. Operators of mobile plant must SLOW DOWN, look both ways and sound their horn when: -

•  Travelling through Entrance/Exit to the Distribution Centre;

• Entering the DC from the docks or yard

• Exiting trucks and pans; and

• Before crossing pedestrian walkways or pedestrian crossings.

16. Mobile plant operators must sound their horn when they are:

• Approaching and passing pedestrians or doorways that pedestrians may use.

Note: Mobile plant operators do not need to use their horn when approaching/passing pedestrians on a marked walkway, unless they intend to cross the walkway and when approaching other mobile equipment in operation

17. Mobile plant operators are to use their horn appropriately at all times to caution pedestrians and mobile plant operators.

…

26. Operators MUST slow down in areas where there is a congestion of Mobile Plant or decreased visibility.

…

Pedestrians Responsibility

1. Pedestrians have right of way at all times but must show due care and judgment when on designated walkways and or at end of aisles.”

46. The plaintiff was mistaken when he said the rule was that one should sound their horn when approaching another vehicle. (Ex A, Statement, 8 August 2016, [15]). The actual instruction was that mobile plant operators do not need to use their horn when approaching/passing pedestrians on a marked walkway, unless they intend to cross the walkway nor when approaching other mobile equipment in operation. (Ex D1/5, [16]).

47. The incident report characterised the risk rating of the accident as medium. Coles’ formal investigation dated 28 April 2009 indicated that the following actions should be completed in order to control the factors that contributed towards the accident. The actions to be put in place were firstly, a requirement in the site traffic management plan to stop and sound a horn before passing someone who is wrapping their pallets; secondly, the site traffic management plan was to be updated to include the requirement that team members are not to remain between their pallets and passing machinery and mobile plant operators are to wait until a pedestrian has cleared that area before passing; thirdly, an inspection of pallets within aisles is to occur by team managers with offending pallets to be rectified and reach truck operators to be addressed; and finally, to have a team talk to all reach truck operators to ensure they check that they place pallets correctly into pick slots. (Ex D2/1, the incident report, p 21).

48. The formal investigation report provided relevant back information regarding the warehouse. The report stated that an informal review on 27 April 2009 at Smeaton Grange found a number of pallets protruding excessively from the pick slots. An administrative control of painting white lines to indicate where to place the pallets into the slot did not appear to make any difference to the overall correct placement of pallets in the slot. The site has had 5 incidents of mobile plants hitting fixtures or pallets in fixtures causing damage to upright legs since the start of period 8 of FY09. (Ex D2/1, p 18). While there was reported damage to fixtures and pallets, there was no report of personal injury.

Liability of Allstaff

49. The plaintiff claimed that Allstaff owed a non delegable duty of care to provide a reasonably safe system of work and owed a non delegable duty of care as his employer. The plaintiff also claimed that Allstaff is vicariously liable for the actions of Mark Douglas, also an employee. (ASC, 2 April 2015, [8]-[10]).

50. The plaintiff pleaded that Allstaff was negligent in firstly, the driving of the forklift by Mr Douglas at an excessive speed; secondly, the failure by Mr Douglas to keep a proper lookout; thirdly, the failure on the part of Mr Douglas to stop, swerve or otherwise manoeuvre the said pallet mover so as to avoid collision; fourthly, the failure on the part of Mr Douglas to heed the plaintiff’s presence on the floor of the premises; fifthly the failure on the part of Mr Douglas to avoid colliding with the plaintiff; sixthly, driving by Mr Douglas in too close a proximity to the plaintiff; seventhly, failing to devise, institute and maintain a safe system of work; eighthly, failing to instruct, or adequately instruct the operators of pallet mover machines in the safe use and operation of those machines and finally, permitting pallet mover operators to pass workers in the aisles. (ASC, p 3).

51. Allstaff denied that it owed a non delegable duty to provide a reasonably safe system of work. However, Allstaff admitted that it owed the plaintiff a non delegable duty of care as his employer and that it is vicariously liable for the actions of Mark Douglas. (Def, 30 April 2015, [8]-[9]). Allstaff denied the particulars of negligence and pleaded contributory negligence. (Def, [11]-[12]).

Conclusion - liability as against Allstaff

52. As previously set out, Mr Douglas proffered an explanation for the incident which is expounded by both the plaintiff and Allstaff. He claimed that his pallet mover clipped a pallet that was protruding from the racking into the aisle, forcing his pallet mover to jolt, pushing his pallet into the plaintiff and jamming the plaintiff’s lower right leg between the pallet and the pallet mover. This explanation was also set out in the incident report. The report provides some support to this version of events as it notes that the racking of the right post was damaged. However, without expert evidence to support this ricochet proposition, I cannot draw inferences or conclusions as to how the pallet mover would have ricocheted after hitting an empty pallet that protruded from the racking into the aisle forcing the load on Mr Douglas’ pallet mover to collide with the plaintiff’s lower right leg. No evidence been provided to this court in respect of the actual width of the aisle, the speed of the vehicle, the size and weight of the loaded pallets, the measurements as to the distance that the pallet protruded beyond the racking where the plaintiff was located or any further expert evidence explaining the dynamics and the likelihood of this scenario being the cause of the accident. Hence, I am unable to determine whether Mr Douglas’ account of the accident is more probable than not on the balance of probabilities, given the paucity of the evidence before me. I therefore regard it as conjecture and reject it as the cause of the accident.

53. While Mr Douglas saw the plaintiff, the plaintiff did not see Mr Douglas. Nor did the plaintiff hear a horn being sounded (if it actually was) because he was busily engaged in wrapping his load on the pallet with shrink wrap. In my view, there a number of factors that caused the accident. These are firstly, that although Mr Douglas had a clear view of the plaintiff from about 50 to 60 metres back (T237.46-48), he was driving his pallet mover at excessive speed in the circumstances; secondly, Mr Douglas misjudged the clearance between the racking on the right, the pallets on the exit bay and the plaintiff and his load and hence, failed to manoeuvre the pallet so as to avoiding colliding with the plaintiff; and thirdly, Mr Douglas did not keep a proper lookout as he should have seen that the passageway was obstructed by the plaintiff wrapping his load, he then should have stopped and waited for the plaintiff to finish that task before he proceeded with driving his pallet mover.

54. Allstaff owed the plaintiff a non delegable duty of care as his employer and is vicariously liable for the actions of Mark Douglas driving the unregistered pallet mover. It was the fault of Mr Douglas, the driver of the pallet mover that caused the plaintiff’s injuries. Therefore, Allstaff breached its duty of care to the plaintiff and is negligent. Its negligence caused the injury to the plaintiff’s lower right leg.

Contributory negligence

55. Allstaff submitted that the plaintiff failed to take proper care for his own safety, having regard to his skill and experience; failed to perform his work in a safe and proper manner; and failed to move away from the pallet mover. (Def, [12]).

56. In considering the question of apportionment, the court is required to reduce the damages recoverable to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. The inquiry is not concerned with the cause of the accident but with the cause of damage: see Froom v Butcher [1976] QB 286 at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety: see Gunning v Fellows (1997) 25 MVR 97 at 99. It is the degree of departure from the standard of care of the reasonable man: see Pennington v Norris (1956) 96 CLR 10 at 16. Therefore, it is an objective not subjective test as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence: Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36.

57. As the plaintiff was wrapping the load on the pallet with shrink wrap, he did not see Mr Douglas’ pallet mover approaching. Nor did he hear a horn being sounded or hear the approach of Mr Douglas’ pallet mover as the pallet movers are battery powered and very quiet. The plaintiff first saw Mr Douglas on his pallet mover when Mr Douglas’ pallet mover crushed him between the pallet and the plaintiff’s pallet mover. In these circumstances, the plaintiff took care of his own safety as he was performing his work in the manner he had been trained to. He did not move away from the pallet mover being driven by Mr Douglas because he did not hear or see it. Hence, I do not attribute any contributory negligence to the plaintiff.

Liability of Coles

58. The Civil Liability Act2002 (NSW) governs the liability of Coles.

59. By further amended statement of claim dated 8 April 2015 (“FASC”), the plaintiff pleaded that Coles owed a duty of care to the plaintiff “commensurate with that of an employer”. (FASC, [5]). The plaintiff alleged that Coles was aware of the risk of injury to workers as a result of pallet mover drivers not giving way to workers who were undertaking packing work. The plaintiff pleaded that prior to his accident, Coles did not have any system in place to monitor the activities of pallet mover operators in relation to the safe use of pallet movers and in particular, the giving way of operators to other users within the aisles. (FASC, [12]-[13]).

60. The plaintiff pleaded that the particulars of Coles’ negligence are firstly, travelling at an excessive speed; secondly, failing to keep a proper lookout; thirdly, failing to stop, swerve or otherwise manoeuvre so as to avoid collision; fourthly, failing to heed the plaintiff’s presence on the floor of the premises; fifthly, failing to avoid colliding with the plaintiff; sixthly, driving in too close a proximity to the plaintiff; seventhly, failing to devise, institute and maintain a safe system of work; eighthly, failing to instruct, or adequately instruct the operators of forklift machines in the safe use and operation of those machines; and finally, permitting the pallet mover operators to pass workers in the aisles.

61. Coles denied these pleadings and denied that it was negligent. (Def, 10 September 2015, [2] and [6]). Coles did not plead contributory negligence.

The Civil Liability Act

62. Sections 5, 5B, 5C and 5D of the Civil Liability Act are relevant. I will set these out in turn below.

63. Section 5 reads:

“5 Definitions

In this Part:

harm means harm of any kind, including the following:

(a) personal injury …,

…

negligence means failure to exercise reasonable care and skill.

personal injury includes:

…

(b) impairment of a person’s physical or mental condition, and

…”

64. Section 5B reads:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

65. Section 5C reads:

“5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

66. And finally, s 5D relevantly provides:

“5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

…

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

67. I will now set out and deal with the submissions made by the parties in relation to each provision of the Civil Liability Act.

Section 5B

68. In relation to s 5B(1)(a), senior counsel for Coles submitted that s 5B(1)(a) of the Civil Liability Act is not satisfied for the following reasons. The risk of injury alleged by the plaintiff against Coles is that Coles was aware of the risk of injury to workers as a result of pallet mover drivers not giving way to workers who were packing stationary pallets. Framed in this manner, the allegation does not correctly identify the risk to the plaintiff. The risk of injury to the plaintiff was that Mr Douglas would not obey the various traffic management rules, particularly the rule requiring operators to give way to pedestrians, and that Mr Douglas would fail to drive and manage the pallet mover while keeping a proper lookout so appropriately alter the pallet mover’s course and avoid any collision with the plaintiff or objects in the plaintiff’s proximity. Senior counsel for Coles also submitted that the risk of injury correctly delineated was not foreseeable to Coles. It is debatable whether the plaintiff, when wrapping his full pallet, is considered a pedestrian.

69. It is my view that it was not foreseeable Mr Douglas would ignore the direction to to keep a proper look out for the plaintiff or any other obstacle that may have been present; drive at a dangerous speed in the circumstances; or that Mr Douglas would decide to proceed, having misjudged the necessary clearance between his load and the plaintiff, the load the plaintiff was wrapping and/or any other obstruction. For these reasons, s 5B(1)(a) has not been satisfied.

70. In relation to s 5B(1)(b), there was a clear risk of significant injury within the meaning of s 5B(1)(b).

71. However, so far as s 5B(1)(c) is concerned, Coles claimed that it took reasonable precautions against the risk of injury. Coles submitted that it had a detailed system of work in place that, if correctly observed by Mr Douglas, would have avoided the injury to the plaintiff. The system comprised the following:

(i)   Drivers were properly instructed as to the operation of the pallet movers;

(ii)   The drivers were competent to judge the necessary clearance required to operate pallet movers and when keeping a proper look out could easily avoid collisions of the type that occurred on this occasion;

(iii)   Drivers were required to sound their horns when approaching pedestrians, to warn of their presence; and

(iv)   People operating pallet movers were to give way to pedestrians.

72. Coles also submitted that, for the following reasons, the system of work was safe had it been properly implemented by Mr Douglas:

(i)   The plaintiff and Mr Douglas acknowledged that they knew the traffic management rules, including the traffic management plan and traffic hazards CLM02 (Ex D1/1, p 18 to 22);

(ii)   Mr Douglas breached the direction that pedestrians had right of way;

(iii)   The traffic flow in the aisles was unidirectional and this was well understood by both the plaintiff and Mr Douglas;

(iv)   The load on Mr Douglas’ pallet mover was stable and secure;

(v)   There was high visibility in the aisles. Mr Douglas does not say that he did not see the plaintiff or the plaintiff’s load or that, should it have been necessary, he could not have seen a pallet protruding into the aisle from the pick bay and avoided it;

(vi)   The aisles were three metres wide, ample for two pallet movers to pass;

(vii)   The machines operated efficiently and without fault.

73. I have already made a finding that the operator of the pallet mover, Mr Douglas, saw the plaintiff from 50 to 60 metres away, was travelling too fast and failed to keep a proper lookout for hazards and the plaintiff. I have also already set out the training that the plaintiff and Mr Douglas received from Coles and the instructions contained in Coles’ traffic management plan. It is my view that there is no evidence that the accident was caused as a consequence of the lack of instruction or training given to the plaintiff and Mr Douglas.

74. Senior counsel for Coles further submitted that reasonable care on the part of a driver in the position of Mr Douglas required the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events. Senior counsel for Coles relied upon Manley v Alexander [2005] HCA 79 (“Manley”) and Evans v Lindsay [2006] NSWCA 354 (“Evans”).

75. In Manley, the High Court overviewed the appellant’s evidence at [22] as follows. The appellant said that he was driving his truck along Middleton Beach Road when he saw a man standing on the side of the road (Mr Turner). Because the man was moving around a fair bit like he had been drinking, the appellant kept an eye on him. The appellant did not slow down and he maintained his speed of about 55 to 60 kilometres per hour. The appellant also started to veer to the centre of the road. When he looked back at the roadway ahead of his truck, he saw something lying on the road. He said that he went to brake and thought “I shouldn’t brake, so I lifted my foot, then I felt that I ran over something.”

76. On appeal, the appellant contended to the High Court that it was not open to the Full Court of the Supreme Court of Western Australia to find from the facts that they had failed to take reasonable care. The High Court dismissed the appeal by a 3-2 majority, holding that it was open to the Full Court to make such a finding because the driver, Manley, was guilty of negligence. In the majority judgment of Gummow, Kirby and Hayne JJ, the conditions on the road that lead to this conclusion were noted at [13]:

“When driving at night, the driver must take account of how well the road is illuminated: both by the vehicle's lights and by any street or other lighting. In the present case, there was a street light close to where the respondent lay on the road. Its light illuminated the area where the respondent was. Of course, it is important to remember that the respondent was wearing dark clothing and lying down, generally parallel with the direction the appellant's truck was travelling. The contour of the road gave the appellant an uninterrupted view of the road ahead for a distance considerably greater than the light cast by his low beam headlights. The light cast by those headlights extended about 60 metres ahead of his vehicle. The respondent, even clad in dark clothing and lying parallel to the direction of travel, could have been seen as some form of obstruction to be avoided at least by the time the headlight beams illuminated where he was. But the appellant did not see him. For two to three seconds the appellant continued to look to the side of the road rather than to the roadway over which his vehicle would travel and he maintained his vehicle's speed while veering towards the centre of the road.”

77. In the Court of Appeal’s decision in Evans, the respondent was walking down the middle of Kangaloon Road, Bowral in an inebriated condition. The accident occurred in the early hours of 27 February 2000 in conditions that were dark, wet but illuminated by streetlights and the vehicle’s low beam headlights. The driver had not previously driven along the road that was in a built-up area and had been driving within the speed limit of 60 kilometres per hour. The trial judge found the driver was negligent as he was driving too fast for the conditions and was not keeping a proper look out, and that the respondent was 15% contributorily negligent.

78. The Court of Appeal also cited with approval the content of the duty of a driver at night as expressed by Gummow, Kirby and Hayne JJ in Manley at [12] and [13]. The Court went on to state at [39]:

“The driver has to have regard to all of the circumstances, including how

well the road is illuminated, and not only by the headlights.”

79. Although the Court of Appeal found error in certain respects in Evans, it upheld the verdict against the driver on the basis that the driver had failed to keep a proper lookout. The Court did, however, increase the allowance for contributory negligence. ([71], [72] and [74]).

80. The Court observed at [71] that where a driver is confronted with a situation where there is a risk of injury, there may be a range of steps that may be taken by way of a reasonable response:

“It will not always be negligent if a driver, in what is virtually a split second decision-making makes what, on later reflection, was the wrong decision. However, it may be negligent if a driver was failing to keep a proper look-out so that she/he in real terms deprives her or himself of the ability to make decisions other than the immediate action of slamming on the brakes.”

81. In line with the above authorities and as I have previously stated, it is my view that the injuries to the plaintiff were caused by Mr Douglas’ negligent driving and not from any failure of Coles to take appropriate precautions under s 5B(1)(c). This conclusion is supported by the following factors:

(i)   Mr Douglas had a clear view of the plaintiff from about 50 to 60 metres back and he was driving his pallet mover at excessive speed in the circumstances;

(ii)   Mr Douglas misjudged the clearance between the racking on the right, the pallets on the exit bay and the plaintiff and his load, and hence, he failed to manoeuvre the pallet so as to avoid colliding with the plaintiff;

(iii)   Mr Douglas did not keep a proper lookout as he should have seen that the passageway was obstructed by the plaintiff wrapping his load and that he should have stopped and waited for the plaintiff to finish that task before he proceeded driving the pallet mover;

(v)   It was not a “split second” decision made in the agony of the moment because Mr Douglas had 60 metres to see and react to the presence of the plaintiff; and

(vi)   Mr Douglas could see the plaintiff and any pallet protruding into the aisle way but failed to avoid colliding with it.

82. Coles further submitted that the final particular of negligence set out in paragraph [60] above, permitting pallet mover operators to pass workers in the aisles, has not been shown to be a reasonable precaution as required by s 5B(1)(c) Civil Liability Act. This was challenged by counsel for Allstaff, who alleged that the investigation report provides evidence of circumstances to which a reasonable person in Coles’ position would have responded by taking precautions, namely, implementing a system to prevent accidents. As I have already mentioned, the investigation report provides that there were five reported incidents involving mobile plants hitting fixtures or pallets in fixtures and causing damage to upright legs since the start of the period 8 for the financial year ending 2009..

83. Senior counsel for Coles also alleged that the “actions not yet completed” section of the investigation report is not relevant to the current dispute for the following reasons:

(i)   The requirement that persons stop and sound horns before passing someone who is wrapping their pallets and that members not remain between the pallet and passing machinery would have made no difference in the present circumstances because Mr Douglas knew of the plaintiff’s presence and both the plaintiff and Mr Douglas believed there was ample room to pass the plaintiff and his pallets;

(ii)   The sounding of a horn is to alert people to the presence of a hazard. In any event, Mr Douglas says he did sound his horn. Both the plaintiff and Mr Douglas say there was space to pass safely and it is not alleged that the plaintiff stepped into the path of Mr Douglas’ machine; and

(iii)   The inspection of pallets within aisles and the discussion with truck operators to ensure that pallets are correctly placed in pick slots would have made no difference to the accident because Mr Douglas agreed that he should have seen the pallet, assuming it was present.

84. The five incidents dealt with in the investigation report concern property damage caused to fixtures or pallets in fixtures not personal injury. I do not consider that a reasonable person in Coles’ position would have taken the precautions suggested by Allstaff in response to the investigation report. Nor do the actions contained in the “actions to be completed” section of the investigation report support a finding that Coles failed to take the precautions a reasonable person would have done in its position.

85. I also consider it relevant that the accident was not caused by Mr Douglas attempting to drive his pallet mover past the plaintiff in the aisle when there was insufficient room in the aisle. To the contrary, there was ample room for two pallet movers to pass each other in the aisle and both the plaintiff and Mr Douglas agreed there was sufficient room for Mr Douglas to pass the plaintiff. The injury to the plaintiff was caused by the negligent attempt by Mr Douglas to carry out the passing manoeuvre and driving too fast and not keeping a proper lookout.

86. In considering the operation of s 5B(1)(c), it is necessary that I consider the factors set out in s 5B(2) which guide the determination of whether a reasonable person would have taken precautions against the risk of harm. In relation to s 5B(2), senior counsel for Coles submitted in the hearing that no evidence had been provided by either Allstaff or the plaintiff to support a favourable finding of the matters in (a)-(d). (T.375.38-50). I agree with this submission. This Court has not been provided with any evidence as to the probability that harm would occur if care had not been taken or the burden of such precautions. While I consider that the likely seriousness of the harm is clear on the facts pursuant to s 5B(1)(b), this alone is not sufficient. In my view, there has been insufficient evidence provided in respect of the factors set out in s 5B(2) to support a finding that s 5B(1)(c) is satisfied.

87. In my view, the plaintiff and Allstaff have not satisfied the provisions within s 5B of the Civil Liability Act. Accordingly, the claim against Coles fails. In case I am wrong, however, I will now consider the other provisions in the Civil Liability Act.

Section 5C

88. No written or oral submissions were made in relation to s 5C of the Act. Nor was any evidence adduced to this Court in relation to the matters set out in s 5C(a)-(c).

Section 5D

89. Senior counsel for Coles submitted that the injury to the plaintiff is fully explained as a consequence of a casual act of negligence on the part of Mr Douglas. Mr Douglas simply drove the pallet mover carelessly and there was nothing more that Coles was required to do to take reasonable care. Consequently, there was no factual causation as required under section 5D(1)(a) and therefore no negligence on the part of Coles.

90. The particulars against Coles, however, alleged that it failed to devise, institute and maintain a safe system of work, failed to instruct the operators of the forklift machines in the safe use and operation of those machines and that it permitted forklift operators to pass workers in the aisles (FASC, p 3). In response, Coles submitted that even if the relevant particulars of negligence relied upon were made out, namely (g), (h) and (i), these were not a cause of the injury to the plaintiff and are causally irrelevant to the circumstances of the plaintiff’s injury. These matters were not a necessary condition of the occurrence of the harm to the plaintiff. The system of work was safe had it been correctly followed by Mr Douglas. According to Coles, the plaintiff and Mr Douglas were properly instructed as to the operation of their pallet movers and were both experienced operators. Mr Douglas does not say the accident occurred because of his inability to operate the pallet mover. There is also no reason why two pallet movers could not pass each other in the aisle. Mr Douglas and the plaintiff both agreed that their pallet movers could have passed on this occasion had Mr Douglas exercised the appropriate care. Indeed, such interactions between pedestrians and mobile transport would be inevitable given that the warehouse was a major distribution centre.

91. It is my view that the accident occurred because of Mr Douglas’ casual act of negligence and not because of any systemic failure by Coles. As previously discussed, there had been no expert evidence of the protruding pallet causing the ricochet of Mr Douglas’ pallets so as to collide with the plaintiff.

92. It follows that none of the particulars were a necessary condition of the occurrence of the harm to the plaintiff as required by s 5D(1)(a). To the contrary, I consider that the system of work devised by Coles was safe but Mr Douglas did not adhere to it.

Civil Liability Act – Conclusion

93. It is my view that the relevant provisions in the Civil Liability Act have not been satisfied. Hence, Coles is not liable in negligence for the plaintiff’s injury.

Cross claims

94. On 22 June 2017 (during the hearing), Coles and Allstaff filed cross claims against each other. Allstaff sought indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) and contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The relief sought by Coles is for contribution and/or indemnity pursuant to Clause 4 of the Law Reform Miscellaneous Provisions Act, damages for breach of contract, indemnity pursuant to contract, costs, costs of defending the plaintiff’s claim and costs of the cross claim.

94. Apportionment requires an assessment of the causal potency and culpability of each party.

95. Coles submitted that it was the actions of Mr Douglas that were entirely responsible for the injury to the plaintiff. At its highest, the case against Coles involves an unspecified intrusion of an empty pallet into the aisle in circumstances where Mr Douglas admits he should have seen it.

96. For the reasons previously given and in light of the fact that Allstaff is vicariously liable for the actions of Mr Douglas, Coles is not required to indemnify Allstaff at all. Nor is Coles required to make any contribution.

Presumption of agency – is Coles liable for the negligence of Mr Douglas under statutory agency?

98. Before I deal with damages, Allstaff has raised a legal argument with which the plaintiff agrees that, by virtue of the interaction between the Motor Accidents Compensation Act and the Workers Compensation Act, Coles is liable for the negligence of Mr Douglas.

99. It is first necessary to set out the relevant provisions of the Motor Accidents Compensation Act, the Workplace Injury Management and Workers Compensation Act 1998 (NSW) , the Workers Compensation Act and the Employees Liability Act 1991 (NSW).

The Motor Accidents Compensation Act

100. Section 3 of the Motor Accidents Compensation Act reads:

“3 Definitions

…

“motor accident” means an incident or accident involving the use or operation of a motor vehicle that causes … injury to a person where the … or injury is a result of and is caused … during:

(a) the driving of the vehicle, or

…”

101. Sections 3A and 3B of the Motor Accidents Compensation Act relevantly read:

“3A General restrictions on application of Act

(1) This Act (including any third party policy under this Act) applies only in respect … of … injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if … injury is a result of and is caused … during:

(a) the driving of the vehicle, or

…

3B Restrictions on application of claims provisions-accident must be insured or work accident

(1) The application of Chapters 3-6 in respect of … injury that results from the use or operation of a motor vehicle is limited to … injury that:

(a) is caused by a motor accident for which the vehicle has motor accident insurance cover, or

(b) gives rise to a work injury claim…

(2) For the purposes of this Act, a motor vehicle has motor accident insurance cover for a motor accident if and only if:

(a) at the time of the motor accident the motor vehicle was subject to coverage under a third-party policy or was subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, or

(b) at the time of the motor accident, the motor vehicle was owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or

(c) there is a right of action against the Nominal Defendant in respect of the motor accident or there would be a right of action against the Nominal Defendant in respect of the motor accident if the motor accident had been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.

(3) For the purposes of this Act, … injury gives rise to a work injury claim if it is:

(a) the death of a worker resulting from or caused by an injury to the worker (being an injury caused by the negligence or other tort of the worker’s employer), or

(b) an injury to a worker caused by the negligence or other tort of the worker’s employer,

with expressions used in this subsection having the same meanings as they have in Part 5 of the Workers Compensation Act 1987.”

102. Section 112 is contained in Part 4 of the Motor Accidents Compensation Act. It reads:

“112 Presumption of agency (cf s 53 MAA)

(1) For the purposes of:

(a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of … injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and

(b) the third-party policy, if the vehicle concerned is an insured motor vehicle,

any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.

(2) Nothing in this section is to be taken to imply any ratification by the owner of the motor vehicle of the acts of the person driving the motor vehicle.

(3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also:

(a) where the owner or driver is dead, with respect to proceedings against the owner or driver’s estate pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and

(b) where the owner or driver is dead or cannot be served with process, with respect to:

(i) proceedings against the person’s insurer under section 113 or the Nominal Defendant, and

(ii) proceedings in which the owner or driver, the owner’s or driver’s estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1946, or as a party to proceedings for recovery of contribution by or against a joint tortfeasor pursuant to Part 3 of that Act.”

The Workplace Injury Management and Workers Compensation Act

103. Section 4 of the Workplace Injury Management and Workers Compensation Act relevantly reads:

“4 Definitions

(1) In this Act:

…

“claim” means claim for compensation or work injury damages that a person has made or is entitled to make.

…

“work injury” means an injury in respect of which compensation is payable.

…”

The Employees Liability Act

104. Section 3 of the Employees Liability Act reads:

“3 Employee not liable where employer also liable

(1) If an employee commits a tort for which his or her employer is also liable:

(a) the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and

(b) the employer is liable to indemnify the employee in respect of liability incurred by the employee for the tort (unless the employee is otherwise entitled to an indemnity in respect of that liability).

(2) Contribution under this section includes contribution as joint tortfeasor or otherwise.”

The Workers Compensation Act

105. Section 150 of the Workers Compensation Act reads:

“150 Reference to workers’ employer includes fellow workers etc

A reference in this Part to a worker’s employer includes a reference to:

(a) a person who is vicariously liable for the acts of the employer, and

(b) a person for whose acts the employer is vicariously liable.”

Coles’ submissions

106. Coles submitted that although they are the owner of the pallet mover, s 3B of the Motor Accidents Compensation Act is a limiting provision that displaces the statutory presumption of agency between the owner and the driver in circumstances created by s 112 of the Motor Accidents Compensation Act.

107. Coles further submitted that in the present proceedings s 3B is engaged and, as a consequence, Chapters 3 to 6 of the Motor Accidents Compensation Act do not apply. As the statutory agency presumed by s 112 is contained within Part 4 of the Motor Accidents Compensation Act, it accordingly does not apply.

108. The purpose of s 3B is to limit the application of the Motor Accidents Compensation Act to specific motor accidents that cause death or injury where there is motor accident insurance coverage or that gives rise to work injury damages claim. It provides that Chapters 3 to 6 do not apply unless the accident is either a motor accident for which the motor vehicle has insurance cover within s 3B(1)(a) or is a death or injury giving rise to a work injury claim within s 3B(1)(b).

109. Senior counsel for Coles submitted that s 3B(1)(a) of the Motor Accidents Compensation Act does not apply because the pallet mover used by Mr Douglas does not fall within the corresponding provision of s 3B(2). It is not insured under a third party policy, it is not a vehicle owned by the Commonwealth and there is no right of action against the nominal defendant because the accident happened in a warehouse not on a road related area.

110. Coles also submitted that the injury to the plaintiff is not a ‘work injury claim’ against Coles within the meaning of s 3B(1)(b) of the Motor Accidents Compensation Act as s 3B(3) does not apply. This is because s 3B(3) expressly requires the injury to the worker to result from, or be caused by, the negligence or other tort of the ‘worker’s employer’. Allstaff, not Coles, is the plaintiff’s employer. Based on the statutory definition of a ‘work injury’ and a ‘claim’, the only claim the plaintiff can make for ‘work injury damages’ is against his employer, Allstaff.

111. It was also submitted by Coles that the agency between the owner and driver which arises at common law does not apply in the current circumstances. This is because the common law provides that a defendant who is the owner of a vehicle is only liable as the principal if he is in the vehicle or is otherwise able to assert immediate control over the driver: Soblusky v Egan (1960) 103 CLR 215 at 231 (Dixon C.J., Kitto and Windeyer JJ) (“Soblusky”); Scott v Davis (2000) 204 CLR 333 at [131], [257] (Gummow J) and [311] (Hayne J) (“Scott”).

112. In addition, senior counsel for Coles pleaded that the common law agency between the owner and the driver considered in Soblusky could not arise in the current context where the owner is a corporate entity. It was argued that Soblusky concerned circumstances where the owner is driving through the agency of the driver and is in a position to physically control the driver’s actions. That is to say, he is physically within the vehicle. Although in that case, the owner was in fact asleep in the car while the driver was driving. Coles submitted that a corporate owner, such as itself, cannot be held to be in that position.

113. Senior counsel for Coles also pleaded that even if s 3B is held not to be engaged or there is in common law to find agency, there is no principle of dual vicarious liability in Australia: Day v Ocean Beach Hotel Shellharbour Pty Ltd and Another [2013] NSWCA 250 at [23] and [25] (Leeming JA) (“Day”). I shall reproduce [23] when I refer to Day in Allstaff’s submissions.

114. In summary, Coles submitted that s 3B displaces s 112 of the Motor Accidents Compensation Act and that the common law agency for a motor vehicle owner that arose in Soblusky is not applicable to the current circumstances. Even if agency were to be found on either of these grounds, dual vicarious liability does not exist in Australian law. Allstaff should therefore be held as vicariously liable for the actions of Mr Douglas as his employer under general law. Such a conclusion is reinforced by s 3 of the Employees Liability Act, which

The plaintiff’s submissions

115. The plaintiff submitted that both Coles and Allstaff are liable. The accident was caused by the fault of the driver, for whom Allstaff is vicariously liable as the employer, in the use or operation of the vehicle while driving the pallet mover. It was further submitted that Coles is also liable as the owner of the vehicle because s 112 of the Motor Accidents Compensation Act renders a driver of a vehicle the statutory agent of the owner. The owner is liable as principal as a result.

116. According to the plaintiff, the effect of s 3B of the Motor Accidents Compensation Act is that the accident is one “which gives rise to a work injury claim” so that the provisions of the Motor Accidents Compensation Act, including s 112, apply.

117. Senior counsel for the plaintiff accepted the general position in Australia against dual vicarious liability. That is, that there is no recognition in Australian common law of the doctrine where two parties may both be vicariously liable for the actions of one individual at the same. However, the plaintiff asserted that the limiting statement of Leeming JA in Day in relation to a new and specific species of vicarious liability is created by the Motor Accidents Compensation Act where the owner of a motor vehicle becomes the deemed principal of the driver of that vehicle and causes an injury. The plaintiff contended that this exception to the general rule is expressly reserved in Day.

Allstaff’s submissions

118. Allstaff submitted that the liability of Coles for any negligence of Mr Douglas causing injury to the plaintiff is seen from an interaction between the Motor Accidents Compensation Act and Workers Compensation Act.

119. In Ralston v Bell and Smith [2010] NSWSC 245, Hislop J at [31] said of s 112 of the Motor Accidents Compensation Act:

“In my opinion, there is no ambiguity in s 112. Sub section (1)(a) applies for the purposes of any proceedings whether the vehicle is insured or not, whilst subs-section (1)(b) applies for the purposes of the third party policy, if the vehicle is an insured motor vehicle.”

120. In this case, Allstaff’s counsel submitted that subs (1)(b) has no application and subs (1)(a) applies on the assumption that the Motor Accidents Compensation Act itself has application. In order to answer this, consideration must be given to s 3A and s 3B of the Motor Accidents Compensation Act. If the injury to the plaintiff was in whole or in part caused by the fault of Mr Douglas, then s 3A is satisfied. As previously stated, the injury was caused wholly by the fault of Mr Douglas. Hence, s 3A applies. Coles has asserted in its defence that s 3B protects it from the liability that would otherwise be imposed upon Coles. Allstaff alleges that s 3B does not have this effect.

121. Due to the words at the conclusion of s 3B(3)(b) of the Motor Accidents Compensation Act, it is necessary to refer to s 150 of the Workers Compensation Act in Part 5. Counsel for Allstaff submitted that s 3B(3) of the Motor Accidents Compensation Act is satisfied because its scope is extended through the operation of s 150(b) of the Workers Compensation Act. The hearing proceeded on the basis that Mr Douglas is a person for whose acts Allstaff is vicariously liable.

122. While Allstaff agreed that Coles was correct in its assertion that, as a proposition in general law, an employer is vicariously liable for the negligence of his employee, provided that the employee does not act outside of his or her employment duties. However, Allstaff’s counsel submitted that because the accident has given rise to a work injury claim within s 3B(3)(a) and s 112 falls within Part 4 of the Motor Accidents Compensation Act, s 112 has application. The submission made by Allstaff is that the consequence of the presumption contained in s 112 is that Mr Douglas, as the driver of the pallet mover, is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle. The consequence of this is that Coles is liable for the acts and any omissions of Mr Douglas.

123. It should be noted that the presumption of agency created by s 112(1) is a conclusive presumption: see Brown v Harding [2008] NSWCA 51 at [1] (Hodgson JA, Hidden and Hislop JJ). A question identified by Coles is whether the plaintiff could make out a case for dual vicarious liability.

124. The view of Allstaff is that the passages of Gibbs CJ, Wilson and Dawson JJ (Deane and Brennan JJ dissenting) in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 (quoted in Day) held the proposition of law that once one person was vicariously liable, no other person could be. These passages should lead this Court to the conclusion that the agency imposed upon Coles by statute in the present case excludes a liability that might otherwise be imposed on the employer, Allstaff.

125. Counsel for Allstaff submitted that the Motor Accidents Compensation Act only has application if the negligence on the part of Mr Douglas has had a causal role in the plaintiff’s injury. It was pleaded that Mr Douglas’s negligence did not have such a role. However, I have already made a finding that Mr Douglas’s negligence did cause the plaintiff’s injury.

126. Allstaff argued that if this submission was unsuccessful, the only other cause of the plaintiff’s injury, apart from the plaintiff’s own actions, was the unsafe system of work identified in the Coles’ investigation report. It was submitted that Coles bears the responsibility for its failure to take the measures identified in that report in order to guard against the plaintiff’s foreseeable injury. In support of this, counsel for Allstaff pleaded that there is no evidence to say that Allstaff had any say in, or control over, the system of work, nor that the remedies proposed by the committee for the shortcomings in that system were matters that could be addressed by Allstaff. Nor is there any evidence of a causal link between any breach by Allstaff of a duty of care owed to the plaintiff and the injury.

127. Alternatively, Allstaff submitted that if there is a causal role played by some negligence on the part of Mr Douglas, then the Motor Accidents Compensation Act is engaged. If Day, rather than Bon McArthur Transport Pty Limited v Caruana [2013] NSWCA 101 (“Caruana”) is a correct statement of the law in New South Wales, then s 112 imposes upon Coles a conclusive presumption of agency to the exclusion of Allstaff.

128. Before I turn to consider Day, I should first briefly mention the other cases that Coles referred to, namely Soblusky, Scott and Caruana.

Soblusky

129. Senior counsel for Coles referred to Soblusky, where the Dixon CJ, Kitto and Windeyer JJ stated at [6]:

“6 It means that the owner or bailee being in possession of the vehicle and with full legal authority to direct what is done with it appoints another to do the manual work of managing it and to do this on his behalf in circumstances where he can always assert his power of control. Thus it means in point of law that he is driving by his agent. It appears quite immaterial that Soblusky went to sleep. That meant no more than a complete delegation to his agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control. This therefore must be regarded as an obvious case.”

Scott

130. Senior counsel for Coles referred to the High Court decision of Scott where Gummow J (with Gleeson CJ, Hayne and Callinan JJ agreeing, McHugh J dissenting) stated at [131], [225], [226], [227] and [263]:

“131 It will be apparent when the facts of the present case are more fully related in Section B that none of this reasoning would apply, if only because the owner was not in the aircraft in question when it crashed. Significantly, Dean Prosser and Professor Keeton continue:

“If the owner is not present in the car, but has entrusted it to a driver who is not his servant, there is merely a bailment, and there is usually no basis for imputing the driver's negligence to the owner. It is here that the owner's liability to the injured plaintiff stops at common law. Only the courts of Florida have gone the length of saying that an automobile is a ‘dangerous instrumentality,’ for which the owner remains responsible when it is negligently driven by another. Courts in other states have refused to accept this simple but sweeping approach, and have instead struggled hard to find some foundation for vicarious liability in the circumstances of the particular case.

…

225 There is a line of Australian authorities antedating Soblusky . In Mortess v Fry, [356] Richards J of the Supreme Court of South Australia applied Parker v Miller to support, on an alternative ground, the liability of a defendant motor car owner via a principle of “agency”. Christmas v Nicol Bros Pty Ltd [357] was an action for negligence against a company and its employee arising out of the negligent driving of the employee. Jordan CJ, delivering the opinion of the Full Court, cited Hewitt v Bonvin for the proposition that “ownership is of itself irrelevant to [a defendant's] liability, which is vicarious and arises out of the relationship of master and servant”. [358] At that time, the practice was to regard English Court of Appeal decisions which appeared to have settled the common law as binding upon a State Full Court.

227. The plaintiff obtained casual employment at Square Waffle Restaurant in Leumeah as a chef in April 2011. However, the plaintiff resigned after about a week. The plaintiff gave evidence that this resignation was a result of his inability to cope with the standing as required by the job due his right leg becoming unbearably painful and swollen as each shift progressed. From June to August 2011, the plaintiff made another effort to continue in that employment but he could not cope. The plaintiff’s payment summary dated 1 July 2010 to 26 June 2011 shows that the he made gross earnings of $5,539.14 at Square Waffle Restaurant during this period. (Ex D, p 73).

228. From June 2011 to February 2012, the plaintiff was employed at Yardhouse Restaurant and Bar Pty Limited. The plaintiff’s PAYG payment summary dated 1 July 2011 to 8 February 2012 shows gross payments of $2,094. (Ex D, p 8).

229. From July 2011 to October 2011, the plaintiff was employed by Staff Australia to work as a forklift driver for BUNZL Australia Limited, a storeperson for PFD Food Services Pty Ltd, and a process worker at BAW Systems Australia (T70.21) where he did picking and packing work for a period of four months at 38 hours per week. (T70.45-T71.7). As evidence of this employment, the plaintiff tendered a PAYG payment summary dated 4 July 2011 to 16 October 2011 shows gross payments of $14,090 (Ex D, p 69), a corresponding payroll report from FastTrack Pty Ltd (Ex D, p 68), and a corresponding job orders list from FastTrack Pty Ltd. (Ex D, p 67). He also gave evidence that he was working full time when he saw Dr Giblin on 13 September 2011. (T90.45). This statement is correct.

230. From August 2012 until October 2012, the plaintiff was employed at YL Business Solutions Pty Limited. As evidence of this, he tendered a PAYG payment summary dated 28 August 2010 to 22 October 2012 with gross payments of $5,622.00 (Ex D, p 9), along with a letter dated 24 October 2012 from Joanne Reading of YL Business Solutions Pty Limited confirming the dates of employment (Ex D, p 9), and an email from Michael Minehan of Premier Personnel Services (PPS) Pty Ltd dated 16 November 2015 confirming that the plaintiff worked “on and off” from 28 October 2012 to 23 October 2012 (these dates are incorrectly written in Mr Minehan’s email). (Ex D, p 88).

231. From July 2012 to June 2013, the plaintiff was employed at Labourforce Impex Personnel Pty Ltd as a storeman and forklift driver on a full time basis (T91.46; T92.10), although his oral evidence was that the period of employment was between March 2012 and March 2013. The plaintiff tendered a PAYG payment summary indicating that he worked the period of 1 July 2012 to 30 June 2013 with gross payments of $2,280. (Ex D, p 10).

232. From December 2012 to April 2013, the plaintiff was first employed as a forklift driver at Foamco Industries Pty Limited and then as a storeperson at Shuffle Master Australasia Pty Limited. This employment was corroborated by a job orders list from FastTrack Pty Limited (Ex D, p 97), a corresponding payroll report with gross payments of $9,606.30 (Ex D, p 98), and a candidate activities report from Fast Track Pty Limited. (Ex D, p 99).

233. The plaintiff stated that he has not worked since April 2013 because he was unable to do any of the jobs he has been trained for on a full time basis. He also stated that he has not been able to find any suitable part time work and when he approached several people for work, he was told that he would be a liability.

234. The plaintiff’s employment records show that after May 2013, he has earned very little. From May 2013 to June 2013, the plaintiff was employed at Astar Personnel Pty Ltd. This employment was supported by the plaintiff’s timeslip dated 27 May 2013 to 2 June 2013 (Ex D, p 111), a corresponding weekly timesheet for the week ending 2 June 2013 displaying 7.5 hours of work performed (Ex D, p 113), and a corresponding PAYG payment summary for the payment period of 31 May 2013 to 30 June 2013 with gross payments of $165. (Ex D, p 5; p 112). The plaintiff’s internal employee file for Astar was also tendered, although the file does not indicate the dates of active work. (Ex D, p 110).

235. The medico legal experts agree (and I accept) that the nature of the plaintiff’s injury to his right knee would prevent work which involved prolonged standing, walking, climbing, squatting, twisting or bending activities. This would therefore confine the plaintiff to light to moderate work such as office based duties. However, as the plaintiff’s employment records show, he has been able to perform more active work in the roles of storeman, forklift driver and process worker on a part time basis up until May 2013.

236. The plaintiff’s evidence is that he cannot work as a chef because he would have to be on his feet for 8, 9 or 10 hour shifts and he is unable to stand for that long. He is only able to stand conformably for about an hour to an hour and a half before he has to sit down. This evidence accords with that of the medico legal experts’ opinion and I accept it.

237. The plaintiff has a light rigid driver’s licence that enables him to drive small trucks such as a Pantech truck. He has previously tried to drive a truck but he only lasted half a day due to his difficulty in getting up and down the stairs of the truck. The plaintiff stated that he would be capable of driving a courier type van and that he would be able to do so full time. In the past, the most he has worked was for eight months before he had to take four months off.

238. The plaintiff gave evidence that, between 2011 and 2013, he applied for a number of courier type jobs but was never given the opportunity to work because of the injury to his right leg. He claimed that he was told by potential trucking employers that he would be a risk and a liability. This also applied to all the other jobs he applied for, including in warehousing, cheffing and forklift driving. The plaintiff claimed that they all knocked him back because of his accident and for being a high risk liability. In reality, however, there is little evidence to support this assertion. The plaintiff has performed some forklift driving and conceded that he would be able to work as a forklift driver. (T74.14-50; T75.1-38). In accordance with the medical evidence, I am of the view that the plaintiff could not maintain working as a forklift driver, storeman and process worker on a fulltime basis.

239. The plaintiff is currently in receipt of a disability support pension and is earning $80 per week doing two shifts of work in a pizza shop. He agreed that he is capable of doing more work.

Calculation of past economic loss

241. As previously stated, Allstaff and the plaintiff agreed that the plaintiff’s pre-injury earnings were $705 net per week. Allstaff submitted, however, that the plaintiff should be awarded past economic loss for a closed period, namely from 29 April 2009 until 31 December 2009 (which equates to a period of 35 weeks). This amounts to the sum of $24,675. I allow the sum of $24,675 for past economic loss from 29 April 2009 to 31 December 2009.

242. From 1 January 2010 to 29 September 2017, I assess that had the plaintiff not been injured he would have earned the average weekly earnings (male) as per the schedule. However, I assess that he has suffered from an impairment in earning capacity of $550 net per week. As there are 404 weeks in this period, it equates to a sum of $222,200. From this figure, his actual earnings must be deducted. The evidence provided in respect of the plaintiff’s actual earnings was at times contradictory and unclear. However, relying upon the schedule of past economic loss provided by the plaintiff, I calculate his actual yearly earnings as follows. I have no evidence as to any earnings between 1 January 2010 to 30 June 2010. From 1 July 2010 to 30 June 2011, the plaintiff’s earnings were $106 per week, which at 52 weeks totals at $5,512. From 1 July 2011 to 30 June 2012, he earned $735 per week with a total of $38,220 for that year. From 1 June 2012 to 30 July 2013, he earned $322 per week resulting in yearly earnings of $16,744. There were no calculated earnings provided for the periods of 1 July 2013 to 30 June 2014, 1 July 2014 to 30 June 2015 and 1 July 2015 to 30 June 2016. Nor has any other evidence been tendered to this court in relation to earnings from these years. I therefore calculate the plaintiff’s actual earnings as $5512 + $38,220 + $16,744 + $4160 = $64,636. Accordingly, the figure is $222,200 - $64,636 = $157,564.

Fox v Wood (1981) 148 CLR 438; [1981] HCA 31 (“Fox v Wood”)

243. The amount of a Fox v Wood claim is to be calculated by the parties.

Future economic loss

244. Future economic loss is governed by s 126 of the Motor Accidents Compensation Act which reads:

“126 Future economic loss-claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

245. At the present time, the total average weekly earnings for full time males is approximately $1,720 gross per week or $1,275 net per week. The plaintiff submitted that since the accident, he has never achieved his pre accident earnings and has rarely earned more than an average of $500 or $600 net per week. He argued that if he was left with a residual earning capacity of $500 net per week, his current capacity to earn has been accordingly diminished by $750 net per week.

246. As previously stated, the plaintiff is currently earning $80 per week through part time work in a pizza shop but he is able to do a third shift if it is offered. The plaintiff submitted (and I agree) that he has a greater work capacity. The plaintiff says that he could at best perform some part time work as a courier driver. I assess the plaintiff’s impairment of earning capacity at $550 per week for a period of 11 years.

247. It is the plaintiff's case that based on the opinion of the doctors in conclave; he will be practically unemployable in 11 years’ time. Thus, the plaintiff claims future economic loss from age 50 to 67, being a period of 17 years, at $1,250 net per week deferred for 11 years. The defendant makes no allowance for future economic loss. However, this is not what the medico legal experts actually opined. The evidence the experts gave as to the plaintiff’s future capacity is that the deterioration of his injury will escalate once he reaches middle age, causing problems with his feet in terms of contractures and disabilities with footwear. He will also develop venous ulcers and his knee arthritis will progress. The plaintiff may also be a candidate for a knee replacement and that will further aggravate the vascular problems to his knee. Further, he will progressively lose his musculoskeletal independence and stamina.

248. From the plaintiff’s evidence I accept that from 50 (middle age) to 67, his ability to work will decrease markedly. I do not think, however, that he will be totally unemployable. For that period, I assess his impairment of earning capacity from 50 to 67 (17 years) as $1,000 net per week deferred for 11 years.

249. The parties are to calculate the amount of future economic loss using the 5% tables, deferred tables and deducting 15 % for vicissitudes.

Past loss of superannuation

250. The plaintiff seeks 11% of past economic loss for past loss of superannuation. I allow 11% of past economic loss for past loss of superannuation. The parties are to calculate that amount.

Future loss of superannuation

251. The plaintiff seeks future superannuation at the rate of 13%. I allow future loss of superannuation at 13%. The parties are to calculate that amount.

Past attendant care

252. Attendant care is governed by s 141B of the Motor Accidents Compensation Act which reads:

“141B Maximum amount of damages for provision of certain attendant care services

(1) Compensation, included in an award of damages for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.”

253. The plaintiff seeks 2 years at 10 hours per week at $25 per hour for past gratuitous care: 2 x 10 x 52 x 25 = $26,000. The plaintiff’s past domestic assistance has been provided on a gratuitous basis in the past. Paid assistance for the plaintiff’s lawn mowing has been met by the workers compensation insurer. The defendants allow six hours per week for twenty six weeks at $25 per hour. This would equate to an amount of $3,900 for past domestic assistance.

254. The defendants acknowledge that the plaintiff may have required domestic assistance in connection with the immediate effects of the accident and in respect of the recuperative period following upon the various surgeries. This is supported by the evidence of Dr Stephenson, who opined that the nature of the injury and the history are consistent with domestic assistance being required, particularly after the various operative procedures and particularly in view of the nature of the plaintiff’s severe injury, history of infection and history of management for deep vein thrombosis. The defendants also submitted that there is no evidence from an occupational therapist regarding domestic assistance and orthopaedic specialists may not be appropriately qualified to offer opinions with respect to domestic assistance and care. However, there is the evidence of the plaintiff’s wife which was the subject of little cross examination.

255. Prior to the accident, the plaintiff took responsibility for doing all the laundry, most of the cooking and assisted in tidying the house during the week. He also did the outside work, such as mowing the lawns, gardening, washing the cars. The plaintiff’s wife, Nicola Corin, corroborates the plaintiff’s evidence on this topic. She stated that he would get home in the early afternoon while she worked until 6.00 pm and often arrived home tired. Each evening the plaintiff would spend about 1.5 to 2 hours preparing dinner, doing the laundry, doing the dishes and tidying the house. (Ex A, Statement, 10 August 2016, [13]-[14]).

256. The plaintiff fed and continues to feed the couple’s two Collie dogs. Prior to the accident, he would do everything for the dogs and together they would walk the dogs. After the accident, he no longer prepares chicken, rice and vegetable meals for the dogs. He only feeds them dry dog food because he finds it easier to scoop it out. He no longer walks the dogs and his wife walks them alone, much to her discontent. (Ex A, Statement, 10 August 2016, [25]).

257. For the first few years after the plaintiff’s accident, his wife helped him with his basic personal needs. This included helping the plaintiff in and out of the bath, helping him dress, getting in and out of bed and checking the dressing on his wounds, particularly after each surgical procedure. The amount of things he required assistance with and the amount of time his wife spent on these was greater in the periods following each of his surgeries. Ms Corin continues to take the plaintiff to his appointment when she is not working. (Ex A, Statement, 10 August 2016, [20] to [22]).

258. In November 2009, the plaintiff’s improved somewhat and he was able to travel to Tasmania. He claims for gratuitous domestic assistance up until at least the time that he returned to work in July 2011.

259. From mid 2011, the plaintiff conceded that he could do all of his domestic tasks, including his laundry (T130.4). However, he submitted that his condition fluctuated and he suffered the temporary effects of a back injury. The back injury is not related to this accident and so I do not award any attendant care for this injury.

260. Drs Stephenson and Giblin agreed that the plaintiff is not fit for activities that involve significant heavy lifting, bending or twisting. He is not fit for sport or garden work. He also requires some assistance in his home for heavier cleaning activities.

261. In August 2015, the plaintiff’s wife became his carer and now works two to three days per week. (T177.30-35). She previously applied for a carer’s pension as the plaintiff had a fall at home and ended up in Campbelltown hospital, resulting in his need for even greater assistance. (T178.17-42). She has been finding it difficult to keep up with the burden of the additional housework, caring for the plaintiff and working part time.

262. In spite of the video evidence showing the plaintiff mowing his lawn on one occasion, I agree with the plaintiff’s and doctors’ evidence that he was capable of mowing his lawn but suffered significant pain afterwards. From the date of the accident until 30 July 2011 (a period of 118 weeks), the plaintiff was incapable of carrying out this outside work and was unable to do most of the household duties he was accustomed to doing prior to the accident. It is my view for that the plaintiff required six hours of gratuitous attendant care per week at $25 per hour. The calculation is as follows: 118 weeks x 6 hours = 708 hours. 708 hours x $25 = $17,770. The plaintiff is therefore entitled to past attendant care in the sum of $17,770.

Future attendant care

263. In respect of future attendant care, the plaintiff seeks 3 hours per week for life (42.67 years) at $40 per hour: 3 hours x 52 weeks = 156 hours. 156 hours x 42.67 = 6,656.52 hours. 6,656.52 hours x $40 = $266,260.80. The plaintiff submitted that it would be reasonable to award 10 hours per week for two years and three hours per week thereafter on a commercial basis for the future. Allstaff made no allowance for future domestic care as they submitted that the plaintiff is capable of attending to his own domestic needs. It was contended that this capacity was reflected by the surveillance material.

264. The plaintiff’s wife gave evidence that since the accident, the plaintiff can still put the laundry in the machine. However, because he has difficulty hanging the laundry on the clothes line, he now puts it into the dryer or on a low fold out clothes line (Ex A, Statement, 10 August 2016, [26]). If there are sheets, she attends to them. While the plaintiff can still do some cooking, peeling vegetables, and feeding the dogs hard food, she has to do the majority of work. (T182.40-45).

265. For the period following 1 August 2011, I allow 2 hours per week of gratuitous attendant care. However, as this falls below the threshold in s 141B(3) of the Motor Accidents Compensation Act, no amount for this gratuitous assistance can be awarded.

266. I have already commented on the plaintiff’s activities shown on surveillance and the doctors’ opinions. The plaintiff’s wife has never done the outside work. The lawn became overgrown so the plaintiff mowed it once. The plaintiff’s wife is now required to do extra household activities. The medical opinion is that the plaintiff is not capable of performing outside work and his condition will deteriorate after he reaches 50.

263. From today until the plaintiff reaches 50 years of age, I allow attendant care on a commercial basis for 1 hour per week at $40 per hour. This is a period of 527 weeks (rounded up by two days). It calculates as follows: $40 x 527 weeks = $21,080. From 50 to 82 years of age (rounded up) (Furzer Crestani Forensic Chartered Accountants, ‘Assessment Handbook: October 2016’, Life Expectancy tables: Australia 2013-2015), I allow future attendant care on a commercial basis for 2 hours per week at $40 per hour. This is a period of 1669 weeks (rounded up by two days) deferred for 11 years. The parties are to calculate this amount.

Costs

268. Costs are reserved.

269. Before I enter judgment, the parties are to check my calculations and make their calculations where required. Both parties must provide short minutes reflecting the amounts within 14 days. There may also be some workers compensation payback that needs to be recorded.

Schedule of Damages

Non economic loss	160,000.00
Past out of pocket expenses	91,996.56
Future out of pocket expenses	30,000.00
Past economic loss	To be calculated by the parties
Fox v Wood	To be calculated by the parties
Future economic loss	To be calculated by the parties
Past loss of superannuation	To be calculated by the parties
Future loss of superannuation	To be calculated by the parties
Past attendant care	17,770.00
Future attendant care	To be calculated by the parties
Total	To be calculated by the parties

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Decision last updated: 29 September 2017